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Abstract
International law is often regarded as an omnipotent force, which, as a consequence, subordinates the lived experience of those who consider law in its local customary form. Framed in the context of vulnerable refugee groups displaced through conflict and beyond their national jurisdiction, this article critically examines discourses of legal pluralism and legal empowerment. Incorporating empirical research from Za'atari refugee camp this article will identify the barriers which refugees face when accessing formal legal services. In the absence of an effective and accessible legal process, Syrian community groups have emerged offering alternative avenues to pursue civil, religious and criminal claims, providing a level of legal empowerment. These groups present an opportunity whereby international human rights standards can be reincorporated where they are otherwise absent.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes on contributors
George Riach received his bachelor's degree from the School of Social Sciences, University of Leeds in 2013. He returned to the University of Leeds, this time under the school of Law, to obtain an LLM International Law, where he also received the accolade for best dissertation. He is currently completing his Graduate Diploma in Law at the University of Law, Birmingham.
Zoe James obtained her bachelor's degree from the School of Humanities, University of Derby in 2013. The following year, she went on to achieve her master's degree in Global Citizenship, Identities and Human Rights from the School of Sociology and Social Policy, University of Nottingham. She is currently a postgraduate student at Birmingham City University, in the school of Education.
ORCID
George Riach http://orcid.org/0000-0002-7043-0730
Zoe James http://orcid.org/0000-0002-6821-3526
Notes
1. Anne Griffiths, ‘Pursuing Legal Pluralism: The Power of Paradigms in a Global World’, Journal of Legal Pluralism & Unofficial Law 64, no. 43 (2011): 173–5.
2. Michael Akehurst, ‘The Hierarchy of the Sources of International Law’, British Yearbook of International Law 47, no. 1 (1975): 1. Such affirmations can be inferred from the International Court of Justice Article 38 as a renowned legal authority in which there is an absence of micro plurality reflecting customary relativity as a source of international law.
3. Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Sydney Law Review 29, no. 30 (2007): 31–2; Griffiths, ‘Pursuing Legal Pluralism’, 173.
4. John Griffiths, ‘What is Legal Pluralism?’, Journal of Legal Pluralism 24, no. 1(1986): 38.
5. Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, 2008), 2.
6. UNGA, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, 67th Session, 2006, UNGA Doc. A/CN.4/L/682, 11.
7. Lawrence Gorssberg, ‘Theorising Context', in Spatial Politics: Essays for Doreen Massey, ed. David Featherstone and Joe Painter (Oxford: Wiley-Blackwell, 2013), 32; David Slater, ‘Space, Democracy and Difference: A Post-colonial Perspective', in Featherstone and Painter, Spatial Politics, 70.
8. Paul S. Berman, ‘Global Legal Pluralism', Southern California Law Review 80, no. 1155 (2007): 1156. Berman supports the same theoretical interpretation of hybrid legal spaces ‘where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes'.
9. Kristin Bakke, Andrew Linke, John O'Loughlin, and Gerard Toal, ‘External Patrons, Violence, and Internal Legitimacy in de facto States’ (Working paper, University College London, 2014), 2. Internal legitimacy refers to those laws and governing values which hold authority within a group without the interference of outside agents. In this research it refers to displaced communities inside the jurisdiction of another state.
10. Bartram Brown, ‘From State-Centric Int'l Law Towards a Positive Int'l Law of Human Rights', Chi-Kent Law Review 68 (1992): 203; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Oxford University Press, 1994), 96; Higgins is a firm critic of state-centric legal approaches for undermining the views of the oppressed and marginalised within the jurisdiction of the state.
11. Nlerum Okogbule, ‘Access to Justice and Human Rights Protection in Nigeria: Problems and Prospects', Sur. Revista Internacional de Direitos Humanos 2 (2005).
12. UN Development Programme (UNDP), Making the Law Work for Everyone: Volume 1, Commission on Legal Empowerment of the Poor (UNDP, 2008).
13. Anne Lise Purkey, ‘A Dignified Approach: Legal Empowerment and Justice for Human Rights Violations in Protracted Refugee Situations', Journal of Refugee Studies 27, no. 2 (2013): 267.
14. UNDP, Making the Law Work for Everyone, 6, 11, 29; and UNGA, Legal Empowerment of the Poor and Eradication of Poverty, 64th Session (2009) UN Doc. A/64/133.
15. UNHCR, ‘2015 UNHCR Subregional Operations Profile, Middle East', http://www.unhcr.org/pages/49e45ade6.html (accessed 25 September 2015). These estimates are likely to be modest considering the number of unregistered persons and high mobility between states.
16. UNHCR, ed., The State of the World's Refugees: In Search of Solidarity (Oxford: Oxford University Press, 2012), 41.
17. Ibid., 41.
18. UNGA, Convention Relating to the Status of Refugees, United Nations Treaty Series, 189 (1951), 137.
19. UNGA, Refugees and Stateless Persons, United Nations Treaty Series, 606 (1967), 267.
20. UNHCR, ‘2015 Country Operations Profile, Jordan’, http://www.unhcr.org/pages/49e486566.html (accessed 24 September 2015).
21. Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, Georgia Journal of International and Comparative Law 25, no. 1 (1995/6): 287, 288.
22. Philip Alston and Ryan Goodman, International Human Rights (Oxford: Oxford University Press, 2013), 48. In particular, ‘international constitutionalism’, which propagates certain universalist values over domestic legal sources.
23. International Convention on the Elimination of All Forms of Racial Discrimination; International Covenant on Civil and Political Rights (but neither of its Optional Protocols); International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of All Forms of Discrimination against Women; and the Convention on the Rights of the Child.
24. OHCHR, ‘Fact Sheet No.20: Human Rights and Refugees', OHCHR, no. 20 (1993), http://www.ohchr.org/Documents/Publications/FactSheet20en.pdf (accessed 18 August 2014), 6.
25. International Covenant on Civil and Political Rights, Article 2(1).
26. UNGA, ‘International Convention on the Elimination of All Forms of Racial Discrimination’ (CERD), Article 5.
27. CERD, General Recommendation XXX on Discrimination against Non-citizens, 65th Session (2005) UN Doc. A/59/18, para. 18.
28. Ibid., para. 4.
29. Oona Hathaway, ‘Do Human Rights Treaties Make a Difference?’, Yale Law Journal 111 no. 1870 (2002): 2020. Hathaway raises concerns about how human rights are constructed in different countries and to what extent countries approach their positive obligations. While the intention to meet these obligations is sometimes apparent, political and economic realism often inhibits their delivery, for example resource constraint. This has been noted as a barrier to particular international treaties such as the International Covenant on Economic, Social and Cultural Rights (ICESCR).
30. Paul Prettitore, ‘Who Needs Legal Aid Services? Addressing Demand in Jordan’, World Bank MENA Knowledge and Learning, no. 62 (2012): 1.
31. Ibid., 1.
32. See Okogbule, ‘Access to Justice and Human Rights Protection in Nigeria'.
33. UN Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA), Where we Work: Jordan, http://www.unrwa.org/where-we-work/jordan (accessed 18 August 2014); Samar Muhareb, ‘Implications of the Geopolitical and Economic Constraints for Providing Legal Aid to Refugees in Jordan', Rights in Exile Newsletter, http://rightsinexile.tumblr.com/post/46838149992/implications-of-the-geopolitical-and-economic (accessed 18 August 2014); UNHCR, Country Operations Profile (2015).
34. See UNHCR, ‘2015 Country Operations Profile, Jordan'.
35. Ibid.
36. Andrew Tabler, ‘Jordan and the Syria Crisis: Mitigating the “Known Unknowns”’, The Washington Institute, 30 May 2014; UN Host Community Support Platform, Needs Assessment Review of the Impact of the Syrian Crisis on Jordan (UNHCR and the Hashemite Kingdom of Jordan, November 2013), 3.
37. Nina Gora, Provision of Legal Services in Jordan (ARDD Legal Aid, 2009), 10.
38. USAID, ‘MASAQ Small Grants Program and Grantee Project Profiles', USAID Rule of Law Project (2007), http://pdf.usaid.gov/pdf_docs/PNADM234.pdf (accessed 10 June 2014).
39. ARDD Legal Aid, Jordan's Criminal Justice System: Putting Theory into Practice (ARDD Legal Aid, 2012), 3–4.
40. See Prettitore, ‘Who Needs Legal Aid Services?’
41. UNDP, Making the Law Work for Everyone.
42. See Gora, Provision of Legal Services in Jordan.
43. CERD, General Recommendation XXX, para. 7: ‘Ensure that legislative guarantees against racial discrimination apply to noncitizens regardless of their immigration status, and that the implementation of legislation does not have a discriminatory effect on non-citizens.'
44. See Prettitore, ‘Who Needs Legal Aid Services?’
45. International Association of Refugee Law Judges, Assessment of Credibility in Refugee and Subsidiary Protection Claims Under the EU Qualification Directive Judicial Criteria and Standards (Haarlem, 2013), 18.
46. Bryant C. Serrato, ‘Refugee Perceptions Study: Za'atari Camp and Host Communities in Jordan', Oxfam Research Reports (2014), http://policy-practice.oxfam.org.uk/publications/refugee-perceptions-study-zaatari-camp-and-host-communities-in-jordan-317655 (accessed 10 July 2014).
47. Tom Blackwell, ‘Aerial Views of Enormous Zaatari Refugee Camp in Jordan Show the Size of Hardship Faced by Syrians', National Post, 19 July 2013.
48. Jordan extends a limited stay to refugees of up to six months, in which time the UNHCR aims to find appropriate resettlement in a third country. This is outlined in Article 5 of the MoU. The reality is that the government of Jordan often extends or renews those visas. However, many refugees fail to renew and often become irregular migrants and lose legal rights in Jordan and they face heavy fines if confronted by the authorities.
49. See Berman, ‘Global Legal Pluralism'.
50. Elizabeth Holzer, ‘What Happens to Law in a Refugee Camp?’, Law and Society Review 4, no. 47 (2013): 837. Holzer finds a contrasting example of refugees in Ghana who find legal agency and empowerment in humanitarian settings as they become ‘embedded’ in international law.
51. Brian Tamanaha, ‘Law’, Legal Studies Research Paper Series 8, no. 0095 (2008): 15.
52. Ibid., 13; Joseph Raz, ‘Can There Be a Theory of Law?’, in The Blackwell Guide to Philosophy of Law and Legal Theory, ed. Martin P. Golding and A. William (Oxford: Blackwell, 2005), 331.
53. Taylor Luck, ‘Jordan's “Zaatari” Problem’, The Jordan Times, 19 April 2014.
54. UNHCR, 2014 Syria Regional Response Plan: Jordan (UNHCR, 2014), 20.
55. See Luck, ‘Jordan's “Zaatari” Problem'.
56. Erica Gaston, Akbar Sarwari, and Arne Strand, ‘Lessons Learned on Traditional Dispute Resolution in Afghanistan', Building Peace no. 3 (2013): 7. For example, some of those historic traditions in dispute resolution, upheld by prominent figures in a community ‘may not capture the constantly evolving nature of these practices and denote overly static forums'.
57. Human Rights Council, ‘Civil Society Space: Creating and Maintaining, in Law and in Practice, a Safe and Enabling Environment’, UNGA, 23 September 2013, Doc/A/HRC/24.L.24, paras 5 and 7.
58. UNDP, Making the Law Work for Everyone, 1ff. By ‘quasi-legal’ the authors refer to agents who display characteristics of customary legal codes and practice.
59. See Human Rights Council, ‘Civil Society Space'. The terms ‘informal’ and ‘quasi-legal’ are meant as rhetorical devices to overcome notions which induce overly static visions of community organisation. The term ‘informal’ is not to be misconstrued: in some instances it incorporates agents who engage with, or are themselves vested with formal administrative functions. For example, influential Syrian Imams work closely with a Jordanian Judge and his legal team in the religious court which is operational in Za'atari. This court was an initiative launched by the Jordanian Ministry of Interior (MoI) under conditions outlined by the Jordanian constitution.
60. Veronica Fynn, Legal Discrepancies: Internal Displacement of Women and Children in Africa (Germany: Flowers Books, 2011), 173.
61. F. Peter Phillips, ‘Sulha: Traditional Arab Dispute Resolution', Business Conflict Management, 8 April 2011.
62. Michael Palmer, ‘ADR Missionaries: Developing Counties Import, Adapt Western methods’, Dispute Resolution Magazine 12, no. 3 (2006): 13.
63. CERD, General Recommendation XXX, 16.
64. World Bank, World Development Report: Conflict Security and Development (Washington, DC: World Bank, 2011), http://wdr2011.worldbank.org/sites/default/files/pdfs/WDR2011_Full_Text.pdf (accessed 28 May 2014), 84. Customary practices refer to different forms of social organisation and governance which develop locally. The support of empirical research helps to understand customary values as they find existence through the realities of people's everyday lives.
65. Jennifer Hyndman, ‘Geographies of Displacement: Gender, Culture and Power in UNHCR Refugee Camps, Kenya', University of British Columbia (1996): 125.
66. Richard Delago, Chris Dunn, Pamela Brown, Helena Lee, and David Hubbert, ‘Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution’, Wisconsin Law Review (1985): 1359; Paul Jackson, ‘Decentralised Power and Traditional Authorities: How Power Determines Access to Justice in Sierra Leone', Journal of Legal Pluralism 43, no. 63 (2011): 205. For particular implications of local ADR on women in patriarchal communities see, Subadra Panchanadeswaran and Catherine Koverola, ‘The Voices of Battered Women in India’, Violence against Women 11, no. 6 (2005): 736.
67. Katie McQue, ‘Inside Zaatari, the Jordanian Refugee Camp that Makes Syria's Civil War Look Like the Better Option', The Independent, 24 November 2013.
68. See Purkey, ‘A Dignified Approach’, 8.
69. The SFCC would regularly consult with religious leaders and request their opinions and input into the resolution of certain cases.
70. See McQue, ‘Inside Zaatari'.
71. See ibid. Panchanadeswaran and Koverola provide comparative studies on violations of women's rights as a result of informal community councils.
72. Kenneth W. Abbott and Duncan Snidal, ‘Hard and Soft Law in International Governance', International Organisation 54, no. 3 (2000): 421. This is often the case in international relations and human rights law, where soft law approaches can be more receptive.
73. Anthony Anghie Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2007); Martti Koskenniemi, Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001). This form of soft power can be particularly effective in implementing universal human rights standards without criticisms of hegemonic Western discourse.
74. International Centre for Policy and Conflict, Paralegalism in Kenya in a New Constitutional Dispensation (ICPC, 2012), 2; and Purkey, ‘A Dignified Approach'.
75. See note 66 above.
76. The Constitution of the Hashemite Kingdom of Jordan, Article 99 and Article 110 allow Special Courts to operate under the legislative mandate afforded to them. To be read in conjunction with The Hashemite Kingdom of Jordan, ‘Mediation Law for Civil Disputes Resolution’ No.37 (2003)