2014 – 2015 : A period of transition

Banyan: SOAS Advocates has been run by Jess, Deval and myself for almost three years (without forgetting Matthew and Hayley’s valuable contributions last year of course!). With Jess and I graduating in 2012 and Deval working on his PhD, we have been accommodating Banyan as best we can and running it as effectively as possible whilst also pursuing our own fields of interest. This has included Jess moving to Manchester, Deval to the USA and a brief stint for me in Ghana. As such, we are currently in a period of transition –  we want Banyan to be run in the best possible way for all stakeholders and this transition and re-think will allow that.

Never fear though, this is just a transition, not a pause or a full-stop. During the summer, many students contacted us interested in the opportunities provided by Banyan – we know there is interest and we have proved we have a system that works. As such, we are still aiming to get out projects and get any new students at SOAS involved during this period. The ultimate aim is to recruit a more permanent SOAS-based coordinator who could run Banyan day-to-day and get projects in more regularly.

Demonstrating the good work Banyan does and will continue to do, on the 7th October 2014, the High Court in London ruled that Prince Nasser of Bahrain is not immune from prosecution over torture claims. This ruling would not have occurred with the diligent work of students brought into the project through Banyan and Deighton Pierce Glynn.

We will be in touch with news and projects soon. Don’t hesitate to get in touch if you have any questions, comments or potential projects.

All the best,

Luke

PROJECT: Namati and Community Land Rights Casebase

Namati seeks research assistants to assist in the development of the Community Land Rights Casebase, an on-line collection of court decisions on topics relevant to community land rights. The Casebase is a resource for community land rights advocates and lawyers crafting litigation strategies to fight the dispossession of small communities of their land. The Casebase provides full-text court decisions relevant to community land rights from national, regional and international courts, digests of the important holdings, and a vibrant and collaborative forum for discussing community land rights-related precedent.

Namati’s London-based Casebase coordinator seeks several motivated law students to assist in collecting these cases for the database and developing digests. This is an excellent opportunity for a motivated law student who is interested in developing a first class knowledge of the most current and important community land rights case law from jurisdictions around the world and honing their legal research and writing skills, as well as identifying and working with networks of advocates on issues relating to land, resources and community rights.

Hours per week: from 5 hours, depending on availability

Deadlines: the project operates on bi-weekly cycles, with research assistants completing assigned cases to brief in advance of bi-weekly meetings. Although the project is on-going, there is currently a push to populate the Casebase in advance of its launch in the autumn.

Desired outputs: at least one case brief per week, depending on availability

Possible outcomes and scope for ongoing student engagement: the Casebase will form the basis for a number of projects delving into the effectiveness and impact of litigation in preventing and addressing community dispossession. These projects include:

  1. A practitioners’ guide to legal strategies, featuring successful arguments, why cases were unsuccessful, suggestions for litigation and legislative strategies.
  2. A law review article summarizing the issue, types of arguments, results and lessons learned.
  3. A series of workshops bringing together advocates to inform future litigation efforts.
  4. A book sharing some of the stories behind the cases and analyzing the various legal efforts to halt dispossession and enhance community land rights.

Skills, Qualifications, Experience:

  • Legal training
  • Strong English writing skills; resourceful and thorough research skills
  • Understanding of international law principles, comfortable working with law in a variety of jurisdictions
  • Attention to detail
  • Commitment to deadlines
  • Knowledge of other languages a plus.

About Namati

Namati is an international organization dedicated to advancing the field of legal empowerment and to strengthening people’s capacity to exercise and defend their rights in practical ways. In partnership with civil society organizations and governments, Namati implements legal empowerment interventions that address the following issues: community land protection, increased access to justice, accountability of essential services, citizenship rights, and environmental justice.  To inform global practice, Namati researches and evaluates each intervention rigorously. Namati also actively cultivates an international community of legal empowerment practitioners, convening a Global Legal Empowerment Network to foster dialogue and tools sharing. Namati also provides technical assistance to lawmakers and civil society organizations to champion reforms to policies and institutions and to promote increased investment in legal empowerment initiatives. For more information, visit: http://www.namati.org.

Update – Deighton Pierce Glynn: Bahrain, torture & immunity

The work in brief:

In November 2012, Banyan was asked by Sue Willman, a partner at Deighton Pierce Glynn (http://www.deightonpierceglynn.co.uk/), to work on the case of the witness ‘FF’. The work was confidential due to its content and scope and thus we are only able to speak of it now the case has moved forward.

The witness alleged that Prince Nasser bin Hamad al-Khalifa of Bahrain was involved in the torture of detained prisoners during the Bahraini pro-democracy uprisings of 2011. In August 2012, Deighton Pierce Glynn wrote to the CPS asking for the prince to be arrested and prosecuted while he was visiting the UK under universal jurisdiction. The CPS replied that the prince had immunity from arrest because of his status as a foreign official. Deighton Pierce Glyn then applied for a judicial review of the DPP’s decision on 26 October 2012.

The project lasted from December 2012 to May 2013. The students involved were Matthew Burnett-Stuart (SOAS, MA Law) and Reem Mahmoud (SOAS, PhD). The students conducted background legal research and assembled evidence to present to the CPS in order to support the investigation and prosecution.

Outcome of the project:

A judicial review has been granted by the High Court in The Queen on the application of FF v Director of Public Prosecutions challenging the CPS’s decision to allow the prince immunity in the UK. The court is expected to decide if Prince Nasser should be granted immunity in October 2014. As noted by Reem, “It was an honour to work on this case for which I did some research and translation. It is both a relief and delight to see such a case move forward despite the political and diplomatic dimensions of the issue.”

Matthew elaborates on the work:
At the beginning of the project I had to read though the permission bundle that was initially sent to the CPS so I could understand the basis of the prosecution and what the available evidence was. My role was to identify missing evidence and consider possible leads and reference to other potential evidence. I had relatively little experience working on universal jurisdiction so I had to learn on the job. I studied the recent history of Bahrain in depth as well as a day by day timeline of the 2011 uprising. At times, the work was frustrating because some of the victims’ statements where vague and information was difficult to obtain, as it was impossible and dangerous to directly contact the prisoners in Bahrain. On the other hand, I was able to meet with the witness and other Bahraini human rights activist based in the UK which was a truly inspiring and motivating experience.

Thanks to the project I was able to explore interesting post Pinochet legal arguments about whether there is functional immunity for torture prosecution, and if so, to whom if should be applied.

There are of course few issues on which international legal opinion is clearer than on the condemnation of torture. Torture carried out by a public official anywhere in the world is an offence under The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The CPS decision that Prince Nasser has functional immunity was evidently misguided as he could not contend immunity on the basis of executing a function of state as it is clear that torture could never be such a function.

The judicial review is a positive outcome and it might become an important precedent for cases concerning state officials and crimes against humanity. However, whatever the decision, it is clear that much still needs to be done for human rights in Bahrain. The ‘Bahrain Thirteen’, thirteen Bahraini opposition leader and rights activists, sentenced after a political show trial in 2012, need to be released immediately. There is also a need to expose how The UK is complicit in Bahraini crimes, as the brilliant work of Bahrain Watch demonstrates.

Further information and coverage:

–       Bahraini Prince Nasser bin Hamad al-Khalifa could lose UK diplomatic immunity over torture claims, Independent, 12th May 2014

–       High Court grants JR on immunity of ‘torture’ prince, Law Gazette, 14th May 2014

–       High Court grants JR on immunity of ‘torture’ prince, LCCSA, 15th May 2014

UPDATE: Corporate Responsibility Coalition – Post-Kiobel research

The work in brief: In April 2013, Banyan was asked by the Corporate Responsibility Coalition (CORE, http://corporate-responsibility.org/) to assist in some post-Kiobel research (see our post-Kiobel brief here).

The students involved were Thomas Trennery (SOAS, MA Law), Victoria Fernandes (SOAS, LLM) and Belize Harrison (SOAS, LLM). The coordinators at CORE were Marilyn Croser and Ben Amunwa.

The goal of the work: In April 2013, the Kiobel decision had a dramatic impact on access to justice for victims of corporate abuse. What is less known is that in 2012, whilst the case was being heard, the UK and Dutch governments submitted 2 amicus curae briefs to Supreme Court seeking to limit US extraterritorial jurisdiction and support Shell’s arguments. CORE wanted to use Freedom of Information Laws to release documents concerning the UK’s intervention in this case.

Thomas Trennery elaborates on the case and the work involved:

“Even by the standards of the US Supreme Court, the judgement in Kiobel v Shell was enormously controversial and provoked a wide array of commentary and coverage. The failure of the claimants, a group of Nigerian citizens, to invoke the Alien Tort Statute was seen by some as a sensible limitation on American power abroad, and by others as a guttering of this nation’s beacon for human rights and a sign of the continuing failure of any breach of international law to be followed up with any semblance of enforceability.

However, of particular interest is the fact, not often discussed, that the governments of the UK and the Netherlands filed amicus briefs that were broadly in support of Shell – they argued that international law should not impose liability on corporations. I became aware of this point following a call for volunteers from Banyan Advocates in conjunction with Ben Amunwa and the Corporate Responsibility Coalition (CORE). It was a mandate to work on developing arguments to persuade the Information Commissioner’s Office (the regulatory authority controlling freedom of information in the UK) that documents concerning the Kiobel case that had been withheld by the government should be disclosed under the Freedom of Information Act 2000. Having spent a substantial proportion of my time at SOAS studying corporate accountability, I leapt at the chance to become involved in the work.

To be honest, I went into the project expecting UK freedom of information laws to be pretty dry (although in all fairness I was certainly looking forward to getting my teeth into an area of law with which I’d had no previous contact). I was surprised to discover that this legal landscape wasn’t quite as barren as I’d anticipated. In fact, freedoms of information laws, being relatively new, are still subject to rapid changes in precedent and possess an already vibrant history of case law.

The government had attempted to exempt information under several sections of the Freedom of Information Act 2000. Specifically, it had attempted to use exemptions to protect the United Kingdom’s international relations and interests abroad; information relating to the formulation and development of government policy; information relating to commercial interests; and information that may be held under legal professional privilege. My main task was providing research on legal professional privilege and how to circumvent the government’s attempt to withhold information on this point. This is an inherently difficult exemption to challenge given that such privilege against disclosure recognises the fundamental human right to be candid with legal counsel. However, it is possible to show that the public interest may swing in favour of disclosure in some cases – using previous case law and applying it to the case in hand was an exciting challenge.

In the end, we were more successful than expected. We achieved a considerable level of disclosure on many documents, particularly those relating to government policy, public affairs and commercial interests. Even where we were not successful, the Information Commissioner’s comments revealed that we had often come tantalisingly close. In particular, the exemption relating to legal professional privilege was upheld but the public interest was ‘finely balanced’ and the ICO acknowledged that there was a strong case for disclosure. More work, no doubt, will be put into pushing further against the government’s efforts to withhold the information in this case – but I certainly found my role in the project to be both stimulating and highly rewarding.

What the organisation said about our work: Marilyn Croser, Coordinator at CORE said: “Huge thanks to…the fantastic volunteers from Banyan: SOAS Advocates , without whom it would have been impossible for CORE to pursue the complaints to the ICO”

Further information and coverage:

Documents reveal extent of Shell and Rio Tinto lobbying in human rights case in Guardian, 06th April 2014

CORE & Amnesty International press release, 06th April 2014 (Word document)

The documents that show our Government caved in to corporate lobbying on Amnesty International UK blog, 07th April 2014

To make a successful FOI request, take a big dollop of patience and a handful of top-class law students on CORE blog, 07th April 2014

 

PROJECT: Western Sahara and Leigh Day

Banyan has been asked by Leigh Day to call out for a group of six students to work on the project listed below:

WESTERN SAHARA AND THE RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAW

  1. TREATY LAW AND CUSTOMARY INTERNATIONAL LAW: all UNSC resolutions and any other sources of international law that relate specifically to the status of Western Sahara (including any UNGA resolutions which signify customary international law)
  2. INTERNATIONAL CASE LAW: All judgements in international fora which relate to the status of Western Sahara
  3. DOMESTIC CASE LAW: All judgements in national courts around the world, which relate to the status of Western Sahara
  4. INTERNATIONAL SOFT LAW: The ICJ advisory opinion, all relevant UNGA resolutions (not included in section 1), details of every other occasion when the Western Sahara has been recognised as a non-self-governing territory in international and national fora (including domestic parliaments, the EP and so on)
  5. LEGAL HISTORY: A brief legal history of the Western Sahara from the time of the Spanish administration
  6. ECONOMIC SELF-DETERMINATION: arguments for economic self-determination that have been presented to international or national courts – these may relate to other comparable contexts such as West Bank produce and Gazan fishing rights.

Producing bundles (files) for sections 1-4 above, will involve compiling research materials: identifying and locating the relevant documents using online resources such as Westlaw and LexisNexis, the UNGA, UNSC, and EP websites, or other resources at SOAS or IALS libraries, then printing or photocopying them and sorting and filing them in date order (starting with the earliest at the top and placing the most recent at the bottom).  Each section will need an index or contents page with hyperlinks to the relevant documents.  We would ask that students kindly submit their index as a Word document, as well as including it in the front of their file.

Section 5 involves conducting research and writing a short piece of between 1,000 and 2,000 words plus footnotes.

Section 6 would ideally be presented in summary form of between 1,000 and 2,000 plus footnotes linking to the relevant documents, or alternatively, it could be a collection of the relevant sections of case transcripts and judgements (again, sorted in date order, and indexed).

Leigh Day will provide each student with the necessary stationary, such as lever arch files and dividers, and expenses for photocopying/printing, as long as accurate receipts are provided. Alternatively, Leigh Day will accept electronic submissions.

It would be helpful if students could indicate if they have a preference for a particular topic out of those listed above.  The priority areas are Treaty Law and Customary International Law, International Case Law, International Soft Law, and the Legal History.  Students will be assigned sections on a first-come first-served basis, and will work directly with Leigh Day rather than group format to complete the work.

All students who work on this project will be invited to attend hearings for any litigation which we pursue on this issue.

Competencies:

Essential: Legal research skills (ability to use case-law databases), research skills, ability to write concisely, knowledge of international law, international soft law, international customary law

Desirable: knowledge of Western Sahara

Commitments: +-14hours research and writing per file, students working independently

Deadline: The deadline is Friday 2 May 2014, though Leigh Day would welcome submissions before this date.

Confidentiality: Confidentiality is highly important for this project; every participating student will have to sign a confidentiality agreement before beginning the project.

Please email us at soas@banyan-advocates.co.uk with details of your availability and hours you can commit; please also attach a CV that includes information on your knowledge of the competencies, as cited above.

PROJECT: Responsible Investment within Pension Funds – Centre for Applied Legal Studies

Dear All,
Please see below an exciting new project.

In brief: The Centre for Applied Legal Studies (CALS), based at the University of Witwatersrand in South Africa,  is seeking 2 to 3 students to work on a project undertaking comparative research examining responsible investment within pension funds from both a South African and an international perspective.

The purpose of this project is to produce a comprehensive research report with a particular focus on the following areas:

  • the development of the international trend towards responsible investment;
  • comparative analysis of legislation from a range of comparable jurisdictions;
  • examples of “best practice” internationally;
  • an examination of the South African legislation for Pension Fund Managers and examples of Pension Fund Management which meet/do not meet the criteria (if possible);
  • possible areas of litigation where Pension Funds do not meet the international and domestic responsible investment requirements.

The findings of this report will be used to support the production of a further report by CALS on responsible investment in South Africa, which will outline requirements for Pension Fund Managers, and will be used as a measure of “best practice”. It may also be used in possible litigation for Pension Fund Managers who fail to comply with this practice.

Students will engage with CALS’ staff throughout the research project through email and telecons where necessary.

Commitment:

Approximately 75 hours of work in total to be split between 2-3 students depending on schedules/ availability.

It is desirable but not essential for students to have a background in the areas of economics/ finance and human rights and South African law/ politics.

Deadlines:

Draft for middle of November 2013, and a finished report for the end of December 2013.

Please email us at soas@banyan-advocates.co.uk detailing your availability and interest in the project, with the name of the project in the subject line. Please also attach a CV.

PROJECT: Social and Labour Plans and Mine-affected Communities (South Africa) – Centre For Applied Legal Studies

Dear All,
Please see below an exciting new project.

In brief: The Centre for Applied Legal Studies (http://www.wits.ac.za/academic/clm/law/cals/11159/cals_home.html) is seeking 3 to 4 students to work on a project focusing on the use Social and Labour Plans in South Africa.

There is mounting evidence of a stark disjuncture between the lofty rhetoric in Social and Labour Plans (SLPs) and the lived reality of mine-affected communities who do not see the promised benefits of mining development. To put it bluntly SLPs do not appear to cater for actual community needs; this is a sentiment that is echoed by mining communities throughout South Africa. SLPs can be characterised as a regulatory system which seeks to achieve its aim of benefiting communities and workers through the partial transfer of developmental responsibilities from the state to mining companies.

The goal is to identify issues and themes associated with SLPs by examining the extent of the aforementioned disjuncture and investigate the causes of the failure to benefit communities through mining. We will additionally formulate a best practise SLP model and work with the role-players in the mining industry to attempt to correct the problems identified.

Students will assist in conducting literature review on SLPs. This will involve examining international literature and mining community development plans in order to identify theoretical tools to analyse SLPs, issues and trends in both a global and South African context. This exercise will culminate in a comparative analysis of different mechanisms for the beneficiation of mining communities and global best practice. Students could also expect a portion of field work involving interviews with identified communities, mine management, investors and government regulators.

Commitment: 50 – 60 hours in total per student, divided up according to the students’ schedules

Deadline: Literature review to be completed by December 2013

Specific requirements: No specific requirements, other than an ability to analyse legal and academic documents, and  draft high-quality documents.

The work in context: The aims of the overall project are to:

  • Attempt to formulate a well-defined strategy that addresses short and long term objectives and places emphasis on social impacts beyond financial inputs
  • Identify effective partnerships between the company, community, other producers, NGOs and Government
  • Recommend whether legislative reform is required
  • Make proposals for a new system or reforms to the present system to address the realities of mine-affected communities
  • Analyse the causes of these problems and their impacts in the mine affected communities
  • Provide the role players with recommendations on how to proceed with providing basic services for their labourers and their families going forward
  • Make proposals aimed at strengthening enforcement of SLPs so ensure accountability
  • Ensure that the issues underpinning Marikana are not abandoned and that the community’s plight is not forgotten.Please email us at soas@banyan-advocates.co.uk detailing your availability and interest in the project, with the name of the project in the subject line. Please also attach a CV.

PROJECT: Use of Force – Centre for Applied Legal Studies

Dear All,
Please see below an exciting new project.

THIS PROJECT IS NOW AT FULL CAPACITY

We will let you know if and when more people are required

In Brief: The Centre for Applied Legal Studies (http://www.wits.ac.za/academic/clm/law/cals/11159/cals_home.html) is seeking 1 to 2 students to work on a project on the use of force by law enforcement officials carried out under the mandate of the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions (Special Rapporteur), which is centred on the protection of people against the arbitrary or unlawful deprivation of the right to life.

The purpose of the Project is to enhance domestic reform on the legal standards applicable to the use of force in States whose domestic legal standards are not currently in conformity with international standards. The Project will identify the scope and nature of the problem, determine those States which can most benefit from assistance, and propose modalities and partners who can be involved in the provision of technical assistance to those States. Students will develop a ‘Use of force in domestic law legislation index’ collecting the current use of force legislation and legal frameworks of as many countries of the world and as comprehensively as possible, for example, in criminal procedure acts, police acts, legislation on gatherings, and other primary sources of law that regulate the use of force by law enforcement officials.

The Project will inform the work of the Special Rapporteur. The initial results of the study will form the basis of a section on the need for domestic law reform in this area to be included in a report by the Special Rapporteur to the Human Rights Council in May 2014. The completed research will result in a full report and academic publication at the end of 2014. The preliminary research detailed above is the start of a longer-term Project of the UN Special Rapporteur, until end- 2016. Depending on the progress and time frames, there is scope for further work on the Project as it develops.

Commitment: 5-8 hours per week

We are looking for students with research skills and the ability to read, write and understand English and at least one other international language.

Deadlines: Research and collection of information: September – November 2013

Analysis of information: October – December 2013

Drafting country reports based on analysis, to feed into the final report: October 2013 – January 2014

Please email us at soas@banyan-advocates.co.uk detailing your availability and interest in the project. Please also attach a CV.

PROJECT: Refugee Status Determination in Tunisia – Fahamu Refugee Project

Dear All,
Please see below an exciting new project.

THIS PROJECT IS NOW AT FULL CAPACITY

We will let you know if and when more people are required

In brief: The Fahamu Refugee Project (http://www.refugeelegalaidinformation.org/about-us-0) is seeking 3 to 6 volunteers to work on a project that aims to support the remaining refugees from the former Choucha Refugee Camp in Southern Tunisia – particularly the approximately 300 refugees who have been refused refugee status on appeal by UNHCR and whose files are officially ‘closed’.

Beginning in March 2011, more than 200,000 non-Libyans sought sanctuary in Tunisia. The vast majority of these returned to their countries of origin and more than 3,000 have been resettled in third countries. There were around 300 refugees who had had their claims and appeals rejected and were subject to a policy of starvation, intimidation and alienation. Although the camp has now closed, the majority of those rejected are still living there in the same tents. They mainly come from Sub-Saharan Africa – including Sudan, Darfur, Southern Sudan, Chad, Côte d’Ivoire, and Ghana.

The rejected refugees argue that they were rejected unjustly – they say that they are true refugees and fear persecution and death were they to return to their countries of origin. Fahamu Refugee Project’s limited research bears out their claims. Furthermore, there is evidence of grave deficiencies in UNHCR’s process of RSD adjudication at Choucha.

Fahamu Refugee Project requires support with legal research to get UNHCR to re-open all the files of the rejected refugees who are still at Choucha and to trace the management of the refugees from Libya to the closing of the camp – thereby making a contribution to protecting the lives of future rejected asylum seekers. There may also be the possibility for students to take additional testimonies from failed asylum seekers still at Choucha.

Commitment: On average, 5-10 hours per week. This may vary depending on size of the team working on project.

Fluency in Arabic and French, an advantage, as well as other sub-Saharan languages (from Tigrinya to Malinké and Tamashaq, etc.)

Deadlines: Deadline for completing Legal Framework for existing testimonies: 30 November 2013;

Deadline for taking further testimonies and presenting written up results with legal arguments to UNHCR: 31 March 2014.

Deadline for completion of academic report: 31 March 2014.

Please email us at soas@banyan-advocates.co.uk detailing your availability and interest in the project. Please also attach a CV.

PROJECT: Death Penalty in Pakistan – Reprieve – end of Moratorium Project

In brief : Reprieve (www.reprieve.org.uk)  is seeking 3 to 4 volunteers to work on a project aimed at delaying the resumption of executions in Pakistan following the end of the moratorium which has previously prevented executions taking place .

On June 30th this year, the Pakistan government announced the end of a moratorium on executions that has been in place for the past five years. The moratorium was issued by President Zardari with the support of the then government, led by the Pakistan People’s Party which opposes the death penalty. The Ministry of the Interior issues statements saying that the new government headed by Nawaz Sharif and the Pakistan Muslim League is keen to resume executions at the earliest possible opportunity. At least 5 executions have now been scheduled for the end of August, although President Zardari has indicated that any stays of execution requested before he leaves office on September 9th will now be granted.

Reprieve and its partner organisation, the Justice Project Pakistan, are working to try and delay the resumption of executions for as long as possible by taking on individual cases with scheduled executions, filing strategic litigation on issues including death row phenomenon, and engaging foreign governments in lobbying the government of Pakistan to encourage them to put the moratorium back in place.

Reprieve requires support with legal research to support the cases it is planning to litigate – specifically research into international norms, and  UK and Indian law, which are of persuasive force in Pakistan. Advocacy assistance (non-legal) is also needed to help identify and reach out to potential stakeholders who might be able to lobby the new government of Pakistan and encourage them to reinstate the moratorium.

Commitment: On average, 5-10 hours per week. This may fluctuate both up and down.

Deadline: As soon as possible. Please email us at soas@banyan-advocates.co.uk detailing your availability and interest in the project. Please also attach a CV.