Volume XIV, Issue 1
Johanna E. Bond, Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law
David Pimentel, Legal Pluralism in Post-Colonial Africa: Linking Statutory and Customary Adjudication in Mozambique
Aparna Polavarapu, Procuring Meaningful Land Rights for Women of Rwanda
Beth Ribet, Emergent Disability and the Limits of Equality: A Critical Reading of the UN Convention on the Rights of Persons with Disabilities
NOTE FROM THE FIELD
Christine Bjork & Juanita Goebertus, Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya
Courtney Hostetler, Going from Bad to Good: Combating Corporate Corruption on World Bank-Funded Infrastructure Projects
Johanna E. Bond, Culture, Dissent, and the State: The Example of Commonwealth African Marriage Law | This is an explosive time for those seeking to define the meaning and parameters of marriage. The subject has generated heated debate worldwide. In June 2010, the European Court of Human Rights declined to extend marriage rights to a gay Austrian couple, but the Court carefully laid the foundation for the recognition of such rights when a European consensus on the issue emerges. In July 2010, Argentina extended to same-sex couples the right to marry, joining nine other countries that legally recognize same-sex couples' right to marry. In August 2010, a United States district judge struck down a California ban on same-sex marriage. Marriage, as a legal status and a social construct, continues to evolve.
In recent years, some theorists have questioned the continued salience of marriage as a legal category and advocated a minimal role for the state in marriage regulation. Those challenging marriage as an institution and the state's role in marriage regulation do so for legitimate and compelling reasons, primarily related to the role of the institution in perpetuating sexism and heterosexism. This Article is the first to explore the transnational applicability of this critique of marriage. In light of this critique, the Article interrogates the role of the state in marriage regulation in the particular context of Commonwealth African states. In contrast to those arguing for a limited or nonexistent role for the state in the ordering of private, intimate relationships, the Article argues strongly for expanded, rather than reduced, state intervention in marriage. Robust state regulation will promote equality within individual relationships and among relationships, including same-sex relationships.
The Article proposes a three-part strategy for promoting equality in marriage. First, states with plural legal systems, such as those in Commonwealth Africa, should preserve the plural legal architecture of marriage but integrate the relevant laws by establishing a legislative core of rights within marriage. Second, states should promote equality among intimate relationships by building on the existing marriage "menu" options, adding options for same-sex couples when the political climate is ripe for such reform. Third, states should explore traditions and customary law that support broader understandings of family and caregiving, moving the focus of family law beyond the heterosexual spousal dyad.
Aparna Polavarapu, Procuring Meaningful Land Rights for Women of Rwanda | Land reform and gender equality are important development issues in post-Genocide Rwanda. Beginning in 1999, the government of Rwanda passed and implemented reforms which granted women rights to own and use land on an equal status with men. However, as is expected with widespread social reform, obstacles continue to inhibit widespread gender equality in practice. In Rwanda, major social obstacles manifest in the form of (1) resistance to allowing daughters to inherit land from their parents, (2) adherence to assumptions of female inferiority, and (3) the persistence of informal marriages, in which wives remain unprotected by the new laws. Interested actors have documented these obstacles and proposed legal and policy solutions to overcome them. This article seeks to identify the causes underlying these obstacles to gender equality. Through this analysis, I find that land scarcity, vestiges of discriminatory legal systems, and gendered power structures are significant underlying causes of these social obstacles. I argue that many of the currently proposed solutions are inadequate because they do not address these underlying causes, as is necessary to better secure women's land rights.
The question currently before Rwanda - how to ensure gender equality in the face of continuing social obstacles - has importance outside Rwanda's borders. The underlying causes discussed in this Article are not unique to Rwanda. Understanding the ways in which these factors inhibit gender equality, and finding solutions to overcome them, are lessons learned not just for Rwanda, but also for the international development community.
Beth Ribet, Emergent Disability and the Limits of Equality: A Critical Reading of the UN Convention on the Rights of Persons with Disabilities | The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to, and conceptions of, disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theory, this Article critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability," or disability which is specifically produced as a consequence of social inequity or state violence.
Christine Bjork & Juanita Goebertus, Complementarity in Action: The Role of Civil Society and the ICC in Rule of Law Strengthening in Kenya | This Note examines the nexus between international and domestic criminal justice systems. It discusses whether the International Criminal Court (ICC) can advance positive complementarity through its so-called preliminary examinations. Using Kenya as a case study, we analyze the advocacy strategies of Kenyan NGOs during the preliminary examination that took place between February 2008 and March 2010.
We found that Kenyan NGOs did not use the ICC preliminary examination to "trigger" criminal justice reform or domestic accountability for crimes perpetrated during the post-election violence.
Instead, these NGOs successfully focused on advocating for the ICC preliminary examination to turn into a formal investigation. Kenya's experience with the ICC preliminary examination leads us to conclude that positive complementarity poses a paradox for NGOs: if they insist on capacity-building of the domestic justice system, they fail at demonstrating that the State is "unwilling or unable" to prosecute crimes domestically. This Note explores that paradox.
Courtney Hostetler, Going from Bad to Good: Combating Corporate Corruption on World Bank-Funded Infrastructure Projects | Large-scale infrastructure projects are a vital part of the World Bank's development agenda, but the World Bank and host countries alike have placed little emphasis on combating corruption attached to these projects. Investigation of ongoing corruption and punishment of offenders is an important end goal in itself, and can be an important deterrent to future corruption. The World Bank and host countries face challenges in properly pursuing investigation and punishment, but the results certainly are worth the effort. This Note explores the importance of investigating and punishing corporate corruption on World Bank-funded large-scale infrastructure projects, and presents practical suggestions as to how investigation and punishment processes might be made more effective. Specifically, host countries and the World Bank should utilize a "trigger" mechanism, by which investigations by one party automatically trigger investigations by the other, in order to increase accountability. Other factors - including the willingness of third party states to assist in these efforts - also influence the outcome, but the triggering mechanism may be an important step forward. The outcome of the Lesotho Highlands Water Project corruption investigations provides a useful illustration of how such a cooperative triggering mechanism might work.