From the Guardian’s Liberty Central blog
From monitoring NGOs to supporting children’s rights, international lawyers are vital to Haiti’s reconstruction efforts
After a disaster on the scale of Haiti‘s earthquake, lawyers are low down on the list of experts most people would call. The obvious need is for rescuers, health professionals, security officials and teachers. Lawyers – whether of the domestic or international variety, like many of those here at the American Society of International Law – are known for litigation, and making money, neither of which spring to mind as useful or desirable during a humanitarian catastrophe.
But lawyers are also good at asking questions, and as far as what’s happening in Haiti is concerned, there is no shortage of those. Like, for example, what is happening to millions of extra dollars pouring into a country that already had a staggering 10,000 NGOs before the earthquake. For an island with a population of fewer than 10 million, there is at least one NGO per 1,000 people. Bearing in mind that the US government alone managed to waste an estimated $4bn in reconstructing Iraq, with fraudulent Americans looking like major beneficiaries, there couldn’t be a more tangible examples of what to avoid.
Then there is the question of immigration. One of the enduring characteristics of life in Haiti before the earthquake has been the attempts of its people to leave. Many headed here, to the US, and – in what remains a source of great bitterness among Haitians – boatloads were apprehended on the high seas and sent back. Meanwhile the US was welcoming Cubans into the country with open arms during the same period. Harold Koh, former dean of Yale law school and now legal advisor to the Department of State – one of the most senior lawyers in Obama’s government – represented Haitans who were held at Guantánamo Bay during this period in the 1990s, describes it as a dark period in the history of US immigration policy.
Just three days after the 12 January earthquake the US government put a significant, if temporary, end to that policy by granting Haitians temporary protected immigration status for 18 months, allowing them to remain in the country and work without fear of removal. But take-up has been much lower than the 200,000 Haitians expected to come forward. Haitian migrants are probably some of the least-well placed people to pay the $470 fee to obtain that status, but that is not, according to immigration law expert Muzaffar Christi at NYU school of law, the reason. He argues that the US policy of turning Haitans away over the past two decades has been so effective that the government cannot now find enough migrants to come forward to take advantage of its newfound benevolence.
Is it even right to encourage Haitians to work in the US – even if just temporarily? A historical brain drain is both a symptom and cause of Haiti’s problems. Talented individuals have left because of a lack of opportunities at home – a story that is familiar to much of Africa and the poorer countries in the Caribbean.
In Haiti, remittances now count for one third of the country’s entire GDP. Should skilled Haitians, of which there are many, be encouraged to work abroad to gain access to funds that will support the relief effort, or to return and contribute hands-on? And if the former, why are wealthier Caribbean nations such as neighbouring Dominican Republic and the prosperous Bahamas – which have increasingly stigmatised Haitians through their immigration laws – not doing their part to support them, too?
Last but definitely not least, what about rights? In this regard, the US and the UK are in a special place – driving the relief effort by, in part, preaching the adoption of rights which they don’t recognise at home. As Jonathan Todres, expert on children’s rights at Georgia State University College of Law, pointed out, 45% of Haiti’s population are children. Children’s rights are not an add-on in Haiti, they are mainstream – central to short-term aid, long-term planning and preventing abuse like child trafficking.
But the US and the UK – both major players in Haiti’s relief effort, are both deeply ambivalent about legal protection for children’s rights. The international rules governing children’s rights – most importantly contained in the UN convention on the rights of the child – is the most widely ratified treaty in the world, except the US hasn’t ratified it, and the UK has ratified it but not incorporated it into domestic law, leaving it toothless.
The US is an old hand at the strange art of encouraging other countries to adopt international law tools they refuse to accept at home. Whether children’s rights, the ICC, or domestic human rights organisations, the US devotes significant resources to promoting things abroad it deems unsuitable for domestic consumption. If the UK repeals the Human Rights Act but remains committed to human rights abroad, as seems likely, we will be moving in this bizarre direction too.
The commitment to Haiti does seem to transcend political divides. It’s impossible to conceive of a government in any major donor country that would shy away from contributing. But international law is there for a reason – it has been to disaster areas like this before. If it’s lawyers who serve as the bearers of that wisdom, so be it.
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