Look On! Machuca explores Pinochet's coup

(Look On! takes occasional note of noteworthy productions)

During my internship at the International Criminal Court – which has come to an end, so that I am now continuing my research on human rights and film at my home institution, the London School of Economics – I met a fellow human rights lawyer, from Chile. She noted that I had not reviewed any movies about the military dictatorship under General Augusto Pinochet. Today's review aims to rectify that, to some extent, by featuring the first (but not the last) such Chilean film – Machuca (2004).
Set in the capital of Santiago, during the presidency of Salvador Allende, which lasted from his 1970 election till his death amid the coup on September 11, 1973, the film is a coming-of-age story of two boys in the run-up to the military coup d'etat. The film, directed by Andrés Wood, is semi-autobiographical and tells the story of a prestigious private school run by a priest, Father McEnroe (based on Father Gerard Whelan). Father McEnroe carries out a social experiment, inviting boys who live in local poverty-stricken areas to attend the elite, private school.
Gonzalo Infante, a white, middle-class child bullied by his classmates, befriends one of the new boys, Pedro Machuca. Through his friendship with Pedro, Gonzalo attends and sells flags at the different demonstrations taking place throughout the city. At these marches, he is made aware for the first time of his privileged position: he witnesses his mother yell abuse at his new friends and at the actions of his sister's boyfriend.
The movie, as one might imagine, has no happy ending.
The military coup results in the repression of el pueblo, directly affecting Pedro's family. Gonzalo, however, can carry on with his life at the private school, saved by the colour of his skin and his Adidas trainers bought in Buenos Aires. Pedro has no such luck. With the army under orders to root out Communists and with absolute impunity to act with violence, the beginning of Pinochet's dictatorship begin to unfold. A dictatorship which resulted in torture, as indicted by Garzon and confirmed by the House of Lords in London.
According to the director, in an interview with Close Up film magazine:

'We wanted to recreate our own past, you know? We didn't want to tell the official story of Chile. The film is very much a partial vision. So we wanted to recreate our own past. My own past was a mixture of things, you know? So in the movie you have the background of different people, different styles. Pop, hippy, Andean, poor, rich. You hear music from the right and from the left, because in Chile in those days it was very different to be a musician from the right to be a musician from the left. And we mixed everything you know, so that nothing was so clear. I think that gives the movie a sense of reality, more so than to take care of every little detail – which of course we did also!'

During the film, which is excellent and definitely worth watching, I couldn't help thinking how much my experience of the film must differ from those who have a close personal connection to Chile.

On November 4

On this day in ...
...1998, the U.S. Department of State offered a $5 million reward "for information that leads to the arrest and/or conviction anywhere in the world of Osama Bin Laden and his military commander, Mohammad Atef," suspected of being responsible for simultaneous bombings of U.S. embassies, which had left hundreds dead in Kenya and Tanzania. (poster credit) The very next day, a federal grand jury in New York issued an indictment against bin Laden. U.S. officials would not find bin Laden until May 2011 – nearly a decade after the terrorist attacks of September 11,  2011 – when a team of Navy Seals killed him at his hideout in Pakistan.

(Prior November 4 posts are here, here, here, here, and here.)

Read On! Enslaved Women in America

(Read On! ... occasional posts on writing worth reading)

Daina Ramey Berry, Ph.D., Associate Professor of History at the University of Texas, Austin, and Deleso A. Alford, Associate Professor of Law at Florida A&M University College of Law, have co-edited what looks to be a groundbreaking new collection of essays on slavery, entitled, Enslaved Women in America: An Encyclopedia (Greenwood, 2012).
New scholarship on the lives and contributions of African-American women is a very welcome addition for legal historians and interdisciplinary scholars given the current scarcity of documented information. IntLawGrrls have celebrated foremothers such as Sojourner Truth and Harriet Tubman, but we know that so many others were silenced or intentionally erased from memory. Their legacy remains important in understanding contemporary domestic and international debates.
As outlined in the book flyer:

'Slavery in the history of the United States continues to loom large in our national consciousness, and the role of women in this dark chapter of the American past is largely under-examined. This is the first encyclopedia to focus on the daily experiences and roles of female slaves in the United States, from colonial times to official abolition provided by the 13th amendment to the Constitution in 1865.
'Enslaved Women in America: An Encyclopedia contains 100 entries written by a range of experts and covering all aspects of daily life. Topics include culture, family, health, labor, resistance, and violence. Arranged alphabetically by entry, this unique look at history features life histories of lesser-known African American women, including Harriet Robinson Scott, the wife of Dred Scott, as well as more notable figures.'

The new collection should be a rich resource for making the previously invisible, or marginalized, voices of women who were enslaved more central for historical and contemporary legal studies.

On November 3

On this day in ...

(credit)

... 1952 (60 years ago today), according to multiple sites, Clarence Birdseye 1st marketed frozen peas. His was not the 1st frozen-food product, but it was the 1st to maintain an acceptable level of the taste of the vegetable in the course of the freezing process. It also appears, perhaps coincidentally, that today is National Housewives Day. Birdseye, who died 4 years later, was the subject of a highly publicized biography, published just this past May.

(Prior November 3 posts are here, here, here, here, and here.)

Welcoming Irene Ten Cate

It's our great pleasure to welcome Irene M. Ten Cate (leftt) as an IntLawGrrls contributor.
Irene is a Visiting Assistant Professor at Marquette University Law School in Milwaukee, Wisconsin, where she teaches in the areas of civil procedure and business associations.
Interested in the interplay between the functions of adjudication and the process of judging, Irene focuses her research on how the presence or absence of adjudicative lawmaking affects adjudication in international commercial and investment arbitration.
Irene earned her J.D. from Columbia Law School in New York and her LL.B. degree from the University of Amsterdam in the Netherlands. She spent two years as an associate-in-law at Columbia and more than six years as a litigation and international dispute resolution associate in the New York office of Skadden, Arps, Slate, Meagher & Flom. She also interned with the Secretariat of the International Court of Arbitration of the International Chamber of Commerce in Paris and worked as a corporate associate in the Brussels office of Cleary Gottlieb Steen & Hamilton.
In her introductory post below, Irene surveys studies demonstrating the paucity of women among arbitrators appointed in arbitrations administered by the International Centre for Settlement of Investment Disputes.
Irene dedicates her post to Aletta Jacobs, portrayed in the sculpture below right, about which Irene writes:

'I frequently passed by this statue during my high school years in the university town of Groningen. Aletta Jacobs (1854-1929) started the world’s first birth control clinic, played a key role in the Dutch and international suffrage movements, and was actively involved in women’s peace organizations. But in the Netherlands, she is best known for being the first woman to graduate from a Dutch university. She needed special permission from Prime Minister Johan Rudolph Thorbecke to enroll in medical school and, a few years later, to sit for exams. This dedication is also an expression of support for all the courageous girls who are fighting the battle for equal access to education today.'

Today Jacobs joins other inspiring women on IntLawGrrls' foremothers page.
Heartfelt welcome!

Binders Full of Women . . . Arbitrators?

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post)

The title of this post, as readers based in the United States surely know, refers to a statement from candidate Mitt Romney in a presidential debate. In response to a question from the audience, Romney gave the following account of his quest to identify women candidates for cabinet positions after he was elected governor of Massachusetts:

'[A]ll the applicants seemed to be men. And I – and I went to my staff, and I said, “How come all the people for these jobs are – are all men.” They said, “Well, these are the people that have the qualifications.” And I said, “Well, gosh, can’t we – can’t we find some – some women that are also qualified?”
'And – and so we – we took a concerted effort to go out and find women who had backgrounds that could be qualified to become members of our cabinet. I went to a number of women’s groups and said, “Can you help us find folks,” and they brought us whole binders full of women.'

Amidst the hilarity that has since ensued (I recommend an Internet search for “binders full of women,” as well as a glance at this IntLawGrrls post), let’s pause to consider some data from the glamorous world of international arbitration.
Attorneys Mark Baker and Lucy Greenwood of Fulbright & Jaworski collected information about arbitrator appointments for their article, "Getting a Better Balance on International Arbitration Tribunals," which will be published in Arbitration International by the end of this year. Based on information provided by two major international arbitration institutions, among other sources, they estimate that women represent between 4 and 6.5% of recent appointments in international commercial cases.
A similar picture emerges in investment treaty arbitration:
Baker and Greenwood find that women account for 5.63% of arbitrators appointed in arbitrations administered by the International Centre for Settlement of Investment Disputes, or ICSID, and concluded between January 13, 1972, and January 18, 2012.
Earlier this year, a publication entitled "The (lack of) women arbitrators in investment treaty arbitration," by Osgoode Hall Law Professor Gus Van Harten, placed the number of women arbitrators in all known investment treaty cases until May 2010 at 6.5%.
To get a sense of recent trends, I reviewed appointments in cases registered with ICSID between January 1, 2008, and October 19, 2012, with the following result:

While hardly reason to uncork the Champagne, a 9.4% appointment rate is seemingly a substantial improvement over the 5.65% to 6.5% range based on longer-term data.
Yet as Van Harten points out, the increase disproportionately reflects the extraordinary success of Geneva Law Professor Gabrielle Kaufmann-Kohler (right) and Sorbonne Law Professor Brigitte Stern (left) in obtaining appointments, and doesn’t signify a broader trend. My review of appointments made in cases registered with ICSID in the past five years confirms Van Harten’s finding that Kaufmann-Kohler and Stern (prior IntLawGrrls posts) account for approximately 75% of all women arbitrator appointments in investment treaty cases:

One might expect to encounter more women in annulment committees, whose members are appointed by the Chairman of the Administrative Counsel of ICSID. After all, doesn’t ICSID have greater incentives than parties to consider gender balance?
Perhaps not. Women account for only 3.49% of annulment committee members appointed since 2008:

These numbers should cause disquiet in the international arbitration community. I’m sure all of us can instantly call to mind several female practitioners and scholars – in addition to Kaufmann-Kohler and Stern – who have established strong reputations. Women appear as counsel in high-profile arbitrations, win promotions in top law firms, publish articles and present at conferences. Why don’t they get appointed as arbitrators?

On November 2

On this day in ...
... 1917 (95 years ago today), during the reign of King George V, Arthur James Balfour, Britain's Foreign Secretary, wrote Lord Rothschild, "a leader of the Jewish community in Britain," as follows:

'I have much pleasure in conveying to you. on behalf of His Majesty's Government, the following declaration of sympathy with Jewish Zionist aspirations which has been submitted to, and approved by, the Cabinet:
'His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.
'I should be grateful if you would bring this declaration to the knowledge of the Zionist Federation.'

In the words of the BBC, the letter, known as the Balfour Declaration, "became an important arm of the movement to create a Jewish state in Palestine." (credit for Israel commemorative stamp)

(Prior November 2 posts are here, here, here, here, and here.)

Kenya Again Has Universal Jurisdiction Over Piracy

The Kenyan Court of Appeal in Nairobi has overturned the Mombasa High Court judgment of November 9, 2010, in which Judge M.K. Ibrahim had ruled that Kenyan courts did not have jurisdiction to prosecute anybody for the crime of piracy, unless the crime took place in Kenyan territorial waters.
In the case of In re Mohamud Mohammed Hashi, et al., decided on October 18, 2012, the Court of Appeal determined that Kenyan courts would once again have universal jurisdiction over the crime of piracy.
As yours truly and many others have written before, Kenya had concluded a series of transfer agreements with maritime nations, whereby Somali pirates captured by such maritime nations would be transferred to Kenya, for prosecution in the Kenyan magistrate-level courts. The Mombasa High Court’s 2010 judgment signaled the end of the Kenyan transfer program, because of its holding that only territorial piracy crimes could be prosecuted in the Kenyan courts (for an excellent analysis of this judgment, see this post). Most instances of Somali piracy take place on the high seas, and as such, none would have been eligible for prosecution in the Kenyan courts under the magistrate court ruling.
After the November 9, 2010, ruling, the international community reacted with both concern and pragmatism.
Attempts were made at the diplomatic level to persuade the Kenyan authorities to resume prosecutions. In addition, two new regional partners were identified: the Seychelles and Mauritius both concluded similar transfer agreements with major maritime nations, whereby these two nations agreed to prosecute captured Somali pirates in their national courts.
Facing pressure by the international community, as well as the prospect of losing the transfer model exclusivity, Kenya responded by establishing a special appellate jurisdiction in which the November 9, 2010, ruling would be challenged. The appellate panel was composed of five justices, who, after almost a 2-year delay, unanimously determined that the 2010 ruling would be overturned.
The appellate judgment should result in the restart of the Kenyan transfer program, and in the resumption of ongoing piracy trials in the Mombasa courts, which had all been halted pending this appeal.

Justice David K. Maraga

The Court of Appeals judgment was delivered by Justice David K. Maraga. Justice Maraga determined that the Mombasa High Court had misinterpreted Kenyan law, by subordinating a specialized substantive section on piracy to a more general section on jurisdiction.
In addition, Justice Maraga decided that the lower court had failed to appreciate the applicability of the doctrine of universal jurisdiction.  He wrote that

'the offence of piracy on the coast of Somalia, which we are dealing with in this appeal, is of great concern to the international community as it has affected the economic activities and thus the economic well being of many countries including Kenya. All States, not necessarily those affected by it, have therefore a right to exercise universal jurisdiction to punish the offence.'

It seems that, according to Justice Maraga, Somali piracy constitutes a global threat, and that courts of all nations, including Kenya, should be able to prosecute the crime of piracy under the concept of universal jurisdiction.
The re-opening of Kenyan courtrooms for the prosecution of Somali pirates is a welcome development in the global fight against Somali piracy.

'Nuff said

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

'As long as we claim we are a democratic country, as long as we say we respect the rule of law, we have to ratify the treaty so we can try those criminal living among us.'

– Samira Ibrahim (left), quoted in an article entitled "Revolutionaries demand jurisdiction for International Criminal Court," which appeared Tuesday in the Daily News of Egypt. Last spring Time magazine named Ibrahim, a marketing manager in her mid-20s, one of The World's 100 Most Influential People for having sued Egypt's military for compelling women detained in protests to take virginity tests. (photo credit) The Daily News article reported that Ibrahim has called for a rally tomorrow in Cairo's Tahrir Square, aiming to pressure Egypt to join the ICC.

On November 1

On this day in ...
... 2005, the appointment of Susan Maree Crennan to the High Court of Australia took effect. The headline in the Melbourne-based Age newspaper proclaimed:

'A Victorian woman has become just the second female judge appointed to the High Court.'

The adjective referred to Crennan's location, in the Australian state of Victoria, for which Melbourne is the capital.  At the time Crennan (prior IntLawGrrls posts) was a judge on the Federal Court of Australia. Appointed Queen's Counsel in 1989, she'd also served inter alia as President of the Australian Bar Association and as a Commissioner for Human Rights. The only other woman ever to have served, from 1987 to 2003, had been Mary Genevieve Gaudron. Today 3 women serve on the country's High Court – Crennan, Susan Mary Kiefel, and Virginia Margaret Bell.

(Prior November 1 are here, here, here, here, and here.)

Welcoming Charlesworth, Chinkin & Wright

We at IntLawGrrls are delighted to welcome comments from Hilary Charlesworth, Christine Chinkin, and Shelley Wright.
Today the three offer comments to wrap up our month-long series reviewing the impact of their ground-breaking article, "Feminist Approaches to International Law," 85 American Journal of International Law 613-645 (October 1991).

Hilary Charlesworth

► We've already had the pleasure of introducing Australian National University Law Professor Hilary Charlesworth as an IntLawGrrls contributor, and have welcomed numerous posts relating to her and her work.
► Christine Chinkin is Professor of International Law at the London School of Economics and a barrister. In 2005, she and Hilary won the American Society of International Law's Goler T. Butcher Medal "for outstanding contributions to the development or effective realization of international human rights law."  An Overseas Affiliated Faculty Member at the University of Michigan, Christine also has been a Visiting Professor at Columbia University and Australian National University.
Her publications cover a broad range of fields and topics, from human rights and women's rights in particular to international criminal justice to international dispute resolution to the laws of occupation. She is inter alia a co-editor of The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (2012), which IntLawGrrl Lisa R. Pruitt reviewed in this IntLawGrrls post, and a co-author of The Making of International Law (2007).

Christine Chinkin

Christine's activities, which are too numerous to list here, include being an Editor of the American Journal of International Law and a member of the Advisory Board for the Leiden Journal of International Law, the European Journal of International Law, and the British Yearbook of International Law.  Christine has been a consultant on gender issues for many organizations, including Amnesty International, the Council of Europe, the Organization for Security and Cooperation in Europe, the Peruvian Truth and Reconciliation Commission, the UN Development Program, the UN Division for the Advancement of Women, and the UN High Commissioner for Human Rights. She has also been a member of the Kosovo Human Rights Advisory Panel and the UN Human Rights Council Fact-Finding Mission to Gaza.
► Shelley Wright left Australia and the University of Sydney in 2002 to take up the Northern Directorship of the Akitsiraq Law School – a law degree program offered to Inuit students in Iqaluit, Nunavut. All but one of the graduates of this program were women. She was in the Arctic, where she's pictured below, for almost 3 years.
Shelley then moved down to Vancouver, Canada, where she is Chair of the Department of Aboriginal Studies at Langara College. In Shelley's words:

'Although I still have a strong interest in women's issues, this has been overtaken to some extent by a major interest in Aboriginal rights both within Canada (including especially Inuit) and internationally. I am no longer focusing primarily on international law or feminist perspectives, but instead incorporate all these interests into teaching courses in Aboriginal Studies (including Global Indigenous Perspectives and Aboriginal Women in Canada as well as other courses) and my current research project on the Arctic and climate change.

Shelley Wright

'The continuing interest in the work that Hilary, Chris and I did changed our lives as well as helping to change the direction of thinking about what seemed to us at the time the last bastion of male privilege in law – international law. In many ways it still is of course, but in other ways international law has changed dramatically, not only in better recognizing women's issues but also the perspectives and rights of Indigenous peoples and other vulnerable groups. I credit my own feminist background in helping make it easier for me to see the differing perspectives of Indigenous peoples, although in many ways Aboriginal women's issues and feminism are not always a comfortable fit.'

In their joint post below, Hilary, Christine, and Shelley discuss the making of their article and reflect on the piece 21 years after its publication.
Heartfelt welcome!

Looking back on Feminist Approaches

(Co-authors Hilary Charlesworth, Christine Chinkin, and Shelley Wright reflect on their 1991 AJIL article "Feminist Approaches to International Law," and so conclude IntLawGrrls' month-long series on this trail-blazing work)

We are so grateful to Jaya Ramji-Nogales for organizing this IntLawGrrls series, to Jaya and our colleagues Sari Kouvo, Aoife O'Donoghue, Fiona de Londras, Siobhán Mullally, Doris Buss, Fionnuala Ní Aoláin, and Diane Marie Amann for their generous posts, and to the readers who commented on those posts. It has been heartening to read the responses to our article and to see different ways of understanding it.
Our article, "Feminist Approaches to International Law," came to life in a haphazard way.
During a long dinner at the Australian Jessup Moot finals in February 1989, the three of us had discussed our separate interests in feminist legal theory and the difficulties in applying feminist thought to international law. A conference paper, we thought, would test and refine our fuzzy ideas. We decided to offer the paper for the mid-year annual meeting of international lawyers organized by Professor Don Greig at the Australian National University. We expected that our paper proposal would be rejected as too off-beat and provocative, so we were surprised, and rather daunted, when Professor Greig accepted it without hesitation.
We began writing the paper with no sense of where we would end up, and would regularly share bouts of long-distance panic by phone between Sydney and Melbourne. We wondered constantly whether we would ever manage to pull it all together.
In the end, facing a room full of our curious colleagues, Shelley began with a general overview of feminist legal theory; Christine followed with a discussion of legal instruments and the gender imbalance within international organizations; and Hilary (heavily pregnant) ended with a discussion of the international right to development as an example of how the gendered nature of international law serves to disempower and marginalise women. We did not see ourselves as adding anything to feminist theories, but rather as professional borrowers, using feminist insights to illuminate our discipline.
The reaction to our paper was mixed.
Several people were enthusiastic, while many of the audience looked discomfited and embarrassed (perhaps on our behalf!). One senior figure in the Australian international law community said in the discussion following the paper that the ideas were quite unrealistic, as they would mean enlarging the scope of international law and depriving our discipline of its distinctive character. Some of our colleagues advised us to get back to “real world” international law, for the sake of our careers. Another type of reaction was interest in the paper as an intriguing academic sideshow.

With some hubris, we decided to submit the revised paper to the American Journal of International Law, as it represented for us the mainstream of the discipline that we wanted to challenge. We expected a peremptory rejection, but instead received a guardedly positive response from Professor Tom Franck (left), the Editor in Chief. He was sympathetic to the topic, but he and the Journal’s readers did not think our draft was our ‘best shot’. His proposals for revision were, characteristically, insightful, and made the paper much tighter. Although we only saw this later, this interchange was typical of Tom’s openness to new ideas, his encouragement of junior scholars and his rigorous thinking.

After the article appeared in the Journal's October 1991 issue (right), we found that we began to be asked to appear at symposia and on panels to present what were seen as controversial and contentious feminist ideas – but the ideas were rarely taken up or engaged with. As the three of us became more closely associated with “feminist approaches to international law,” our colleagues were sometimes rather disconcerted if we spoke on international law issues without taking an explicitly feminist approach.
Over the years feminist work in international law has attracted both strongly negative responses and support from unexpected sources. It is striking that feminist analysis is debated mainly by feminists and is rarely taken up even by other critical scholars. The adoption of some feminist vocabulary by international institutions, such as gender mainstreaming, has by and large provided an alibi for the status quo.
Perhaps, we often think, the article created a splash without waves, but it’s been wonderful to learn through this series that it has been helpful to some members of a younger generation of scholars.
Looking back over the article, we see aspects that appear naïve or inconsistent, and we each still struggle with what feminist approaches might mean in international law. However, the impact of the article for us was as much personal and emotional as it was intellectual or academic. The article brought us into contact with a wonderful group of people across the globe. We ourselves have sometimes disagreed vigorously about the directions of our work, yet through it all have maintained close ties of friendship, a great and sustaining gift.

On October 31

On this day in ...
... 1863, 600 British troops embarked in an "armoured river fleet" to continue an invasion of the Waikato River in New Zealand, which had begun in July of the same year. The invasion was part of the Māori Wars, a conflict between British settlers and indigenous peoples that was waged from 1845 to 1872. More than a century later, in 1995, Queen Elizabeth II "agreed, in effect, to apologise for colonial injustices suffered by the Maori people in New Zealand," the Independent of London reported. Rather than leave the task of assent to her Governor-General, the queen gave her personal,

'royal assent to a New Zealand Act of Parliament explicitly acknowledging the injustices suffered by a Maori tribe whose lands were confiscated following a treaty signed by her predecessors.'

The statute also granted about $171 million in compensation. (credit for 1995 photo of British Queen Elizabeth II and Māori Queen Te Ātairangikaahu)

(Prior October 31 posts here, here, here, and here, and here.)