Jan 18 2017

More Speech, Not Less

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By Amy Shepherd*

In early December 2016, the High Court heard a test case brought by Mr. Salman Butt, a British Muslim labelled an extremist in a September 2015 press release by the Government’s Extremism Task Force. The litigation challenges the legitimacy of the Government’s ‘Prevent’ Strategy, which proscribes methods for identifying individuals allegedly expressing ‘vocal or active opposition to fundamental British values.’ The intent of ‘Prevent’ is ultimately to suppress the views of extremists, expression of which, according to ‘Prevent,’ puts society at risk of violent harm.

It has been well-highlighted that the ‘British values’ definition of extremism is of questionable compliance with international principles of legality, including non-discrimination. Mr. Butt’s case highlights the stigmatising implications of using broad and vague terminology to identify ‘dangerous’ extremists. Since his challenge provides a valuable opportunity for judicial scrutiny of whether extremism-curtailment measures do or can comply with the rule of law, in anticipation of judgment this post reflects on whether the curtailment of so-called extremist speech can in any circumstance meet the legal standard of necessity under international human rights law.

Given the central importance of free expression to democracy, there is little scope for any restriction on extremist speech to be justified. The European Court of Human Rights increasingly emphasises the societal value in promoting tolerance, broadmindedness, pluralism and participation in public debate. Any restriction must take account of the content and context of expressions, directly respond to the harm to the State identified as likely to be otherwise inflicted and be at the minimal adequate level of severity.

It could be argued that restricting extremism respects the rights of all citizens to have access to a free and open democratic discourse – if silencing a minority serves to protect the very existence of public discourse. The particularly vocal nature of extremists, who often actively recruit to their cause with intensity and fervour, leading them to gain disproportionate prominence – coupled with the increased danger of violent escalation when one interpretation or discourse gains the ‘upper hand’ and stifles alternative voices – could justify greater intrusion into extremist speech. If running counter to liberal values, extremist expressions arguably warrant little protection.

However, extremist views are precisely the kind of minority speech human rights law is designed to protect, and a secure democracy has no need to fear any disagreement with its precepts, nor even challenge its very foundation. As far as necessity is concerned, it is fallacious to assume that curtailing extremist speech negates existence of its underlying ideology and goals. Extremists may be willing to make superficial concessions in service of their aims, but ostensibly moderate speech may mask an uncompromising worldview that is shared only with select audiences. Restrictions on certain categories of extremist speech have no impact on these private conversations, dimming the urgency of restricting fundamental rights to protect.

Additionally, for some individuals, silencing extremist messages will exacerbate rather than alleviate potential damage. Suppression of extremist views can cause alienation and disaffection: identified factors in the road to radicalisation and terrorist violence. As noted above, focusing on eliminating extremist speech can take extremist conversations underground, preventing meaningful engagement with those most at risk of being radicalised by exposure to extremist material. Censorship also gives credence to claims by extremists that one of the most core freedoms of democracy is denied to those who argue against it, increasing the ‘level’ of extremism some individuals will be willing to subscribe to. And repressive action taken by the State against extremist speech can feed two dangerous illusions: that clashing with authority is a ‘testament to truth,’ and ‘sinister attribution error,’ whereby everything negative is construed as a plot. Overall, official narratives portraying extremism as an ‘embedded problem’ unhelpfully promotes and reinforces false stereotypes, distorts public discourse, and fosters social divisions, all of which increase the likelihood of violence ultimately occurring.

Cumulatively, therefore, the need to and wisdom of silencing the voices of extremists to secure the nation appears seriously contraindicated. Legally, measures harming fundamental rights but failing to benefit anyone or to achieve the desired results are not reasonable, effective, or necessary. The ‘Prevent’ view that the UK must ‘only give a platform to the right people’ has disturbing echoes, and it is questionable whether it will withstand intense judicial scrutiny. It is strongly arguable that a better – and more legitimate – approach to counter-extremism would be to teach people how to recognise extremist propaganda, understand when they are being manipulated, and identify poor arguments in order to build their resilience to hate-filled material. Fundamentally, effective counter-extremism needs more speech, not less.

Works Cited:

R (on the application of Dr. Salman Butt) v. Secretary of State for the Home Department CO/6361/2015 (judgment outstanding)

UK Government ‘Prevent’ Strategy (June 2011) Command Paper 8092

UN Human Rights Committee, ‘General Coment No. 34 (Freedoms of opinion and expression)’ (12 September 2011) UN Doc CCPR/C/GC/34

Royal United Services Institute, Drivers of Violent Extremism: Hypotheses and Literature Review (16 October 2015)

Buyse, A. ‘Words of Violence: “Fear Speech,” or How Violent Conflict Escalation Relates to the Freedom of Expression’ (2014) 36 Human Rights Quarterly 779

Kundnani, A. A Decade Lost: Rethinking Radicalisation and Extremism (Claystone 2015)

Nehustan, Y. ‘Offensive Expression: The Limits of Neutral Balancing Tests and the Need to Take Sides’ (2016) 16 Human Rights Law Review 1.

Reynolds, L. ‘Even with the face-lift of the Queen’s Speech, the Extremism Bill is misguided and counter-productive’ (Demos Blog, 20 May 2016)

Voorhoof, D. ‘The Right to Freedom of Expression and Information under the European Human Rights System: Towards a more Transparent Democratic Society’ (EUI Working Paper, RSCAS 2014/12)

Article 19, ‘Joint Statement: Planned new UK laws on extremism threaten free speech’ (18 May 2016)

*Amy Shepherd holds a degree in law from the University of Cambridge and an LLM in Public International Law and Human Rights from the University of Utrecht (Netherlands). Her research interests include: Freedom of Expression, Protest, Public Space and Extremism.

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Dec 19 2016

War and Peace: From London to Aleppo

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By Kwame Sekyere*

A narrative that parallels the experience of politicians in Downing Street being disturbed by the sound of protesters, with the experience of civilians in Aleppo being disturbed by the sound of war.

On the 13th of December at 10 Downing Street, politicians, political advisors and other professionals sat down to have their daily meetings and discussions, to consider issues both at home and abroad. They were having a general conversation about the weather and how positive anticipations of Christmas come with the dread of icy winds.

Each time they spoke their words would be drowned out by a bombardment of footsteps and with each sentence uttered, a shelling of chants would overwhelm it. Their discussions were armed with a barrage of ‘pardon?!’ and ‘excuse me?!’ because of the constant disruption caused by the protesters outside.

So they would go to the thermostat and turn it to 25 degrees. They would make a call to the kitchen and ask for the tea to be renewed. They would circle the room and make sure that every window was closed and all the curtains were drawn. Then they would be settled enough to have a productive meeting in peace.

—————

In what was once a building in Eastern Aleppo, what is left of a family sit down to share the food they had rationed for the evening. Over their meal they discuss what they should say in their latest tweet, trying to construct a message that would hit home in all the countries in which it will be read.

As they speak, the sound of planes relegates their voices to mere background noise and as the engine sound increases, so do their fears as they know the aircraft edges closer. In this moment of fear they call out to the world to help them, correcting the typos in the message caused by hands that tremble in the same manner that the surrounding buildings do.

To everyone who can hear me!#SaveAleppo#SaveHumanity

— Lina shamy (@Linashamy) December 12, 2016

As the pitter-patter of bullets turns to the pitter-patter of rain, and the bullets that once streamed past their windows turn to rain drops, there comes a rare moment of peace.

Good news for people in Aleppo! It’s raining! That means there are no planes in the sky! 😎

— Bilal Abdul Kareem (@BilalKareem) December 13, 2016

—————

Back at Number 10 this sentiment was shared: the rain had brought an end to their troubles too. As the showers increased the number of protesters decreased, then the footsteps and chants quietened. Now they could properly discuss issues at home and abroad in peace.

 

In writing this narrative I wanted readers to leave, asking themselves some questions about the U.K’s (individuals, institutions and the Government) involvement in the peace process in Syria:

  • Can we compare a protest to an act of war on apathy?
  • Is it in the sound of peace or the sound of war that key decision makers can truly understand the way to act on the events in Syria?
  • Is marching with placards the most effective way to protest?
  • How can we make sure key decision makers are aware of the experiences and emotions of civilians in Syria?

*Kwame Sekyere is a part-time student on the MSc Human Rights programme. Aside from his degree he also works part-time at the human rights organisation Global Dialogue and spends time developing various writing and advocacy projects that you can hear about on his Twitter page @KBSekyere.

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Dec 16 2016

Syria in Crisis: The Harrowing Case of Aleppo

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screen-shot-2016-12-15-at-01-10-57Campaigners have been changing their Facebook profile pictures to red to show their solidarity with the people of Aleppo.

Please note, this article was last edited on the morning of 15th December 2016 and may not reflect the latest news on the developing situation in Aleppo.

*By Merrin Meltzer. 

The city of Aleppo is a key battleground in the Syrian civil war and has seen intense fighting since 2012. On Tuesday morning, the city fell to government forces amidst claims of severe human rights abuses and deteriorating conditions on the ground. Throughout the conflict, the city has been split between two major warring factions: the pro-Assad forces, backed by Russia, Iran and other Shia groups, holding the western part of the city, and the Syrian rebel groups, backed by Turkey, Saudi Arabia and the United States, claiming the east. Other groups, including armed terrorist factions and Kurdish militias, are also involved in the conflict and maintain smaller territory throughout the city. Reports claim that the Kurds have been cooperating with the Assad regime to oust rebel groups from the city.

On November 27th pro-government forces launched a major offensive to take over rebel-held East Aleppo. The campaign came after a US brokered ceasefire crumbled. Using Russian and Syrian air forces to bomb the city, as well as ground forces, the campaign has killed hundreds and displaced thousands of civilians. There are reports that the rebels groups have prevented some civilians from fleeing, trapping them in the besieged East Aleppo region. Other sources claim that civilians and fighters fleeing to government held areas have been detained or have gone missing. Human Rights Watch reported that, “hundreds of men may have disappeared after leaving eastern Aleppo for government-held areas, raising concerns about extensive arbitrary detention, and enforced disappearances.” Both the UN and human rights groups have called for an end to arbitrary detention, citing international human rights and humanitarian law.

In what seemed like a sign of progress, late on Tuesday evening a ceasefire was brokered by Turkey and Russia to end the fighting and to allow any remaining rebels and all civilians to flee the city. Iran, however, intervened and reports from Wednesday morning describe renewed shelling as Shia militias prevent evacuation efforts. According to Al Jazeera, Iranian militias believe that they are winning and “must finish off the opposition, rather than allow them to leave the city alive.” Civilians on the ground have expressed fear and anguish over these developments and continue to call for the organization of a safe passage out of the city.

Over the past week of increased bombing and fighting the UN Human Rights Office, reported summary executions by government forces and relentless bombardment of civilian populations in East Aleppo. At least 82 civilians have been executed, and numerous more casualties have undoubtedly gone unaccounted for. Human Rights Watch, drawing from sources on the ground in Aleppo, has also reported dire conditions. They described areas where entire families have been slaughtered and bodies have been left on the streets, because people are too afraid of being shot to leave their shelters to bury them. The group has published desperate appeals for the safe passage of civilians and made calls for aid throughout the bombing campaign. Their pleas have gone mostly unanswered, as civilians remain trapped in the city without adequate resources. For many, hope has dissipated. Trapped civilians have used social media platforms to post statements and videos calling for aid, admonishing the international community for its silence, and saying their last goodbyes as their situation becomes more dire.

The offensive in Aleppo comes after five years of fighting across Syria, which has led to one of the largest exoduses of refugees in modern history, and countless instances of human rights abuses. As early as 2013, reports of chemical gas attacks revealed the cruelty of the Assad regime. Along with these inhumane attacks, human rights groups have documented repeated use of barrel bombs to target civilian populations. This latest campaign has been no exception in the use of cruel tactics, and continues to reveal the blatant disregard for human life by the Assad regime and its supporters.

The fall of Aleppo gives the government forces control over all major population centers in Syria, and may bring closure to a civil war that has dragged on since 2011. Indeed, Russian aid in recent months has bolstered the flailing government forces and may tip the scales in their favor. Despite these developments, all sides have affirmed their commitment to continued fighting, guaranteeing ongoing suffering for the people of Syria.

The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, has released the following statement in the face of the recent attacks: “The world is watching Aleppo – and we are documenting the violations being committed against its people, with the firm conviction that one day those who are responsible will be held to account. We must ensure that this happens. The hellish suffering to which the people of Syria are being subjected must stop.” Al Hussein’s words are a powerful addition to the growing global movement calling for an immediate stop to the atrocities being committed in Aleppo. The international community can, and must, do more than standby and watch as people continue to be slaughtered in Syria.

*Merrin Meltzer is a MSc in Human Rights student at LSE. She received her undergraduate degree from the University of Delaware in political science and computer science. She is very interested in the migrant crisis and the solutions available to migrants and refugees globally. She has worked as an intern for the International Rescue Committee in Salt Lake City, Utah and the Nationalities Service Center, which aims to provide refugees and immigrants in the Philadelphia area with the legal and social resources they need to create a stable life in the United States. 

 

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Dec 13 2016

Using International Human Rights Law to Guarantee the Right to Health: a Brazilian Experience

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by Iago Morais de Oliveira*

In 2014, fourteen families searched for assistance from the Public Prosecution of the State of Paraíba to guarantee the right to an effective medical treatment for their relatives—sixteen patients who suffered from several neurological conditions which caused multiple seizures a day (sometimes 20 in one single afternoon).

All conventional treatments proved unsuccessful. There was hope that products based on cannabidiol (CBD) would considerably lessen the number of daily seizures (and, even, put an end to it), allowing patients and their families to have a better quality life.

CBD is of the many active substances identified in cannabis sativa. Even though it causes no addiction, since it doesn’t contain any of the psychoactive components of marijuana, such as THC, the Brazilian Health Surveillance Agency has kept the substance on the list of proscribed chemical components for many years.

Considering this, what could be done when the State, the one responsible for guaranteeing the access to health, fails to provide it?

The Dialogue between International Human Rights Law and Brazilian Law

Until 2008 it had been assumed by the Supreme Court that human rights treaties, once incorporated, would have the same legal status of a federal ordinary law. But since then the Court has changed opinion on this subject.

For the record, back in 2004, Congress passed the amendment to Constitution n. 45, which, among other provisions, held that “[i]nternational human rights treaties and conventions which are approved in each House of the National Congress, in two rounds of voting, by three fifths of the votes of the representative members shall be equivalent to constitutional amendments.” International human rights treaties, then, would not always share the same position as federal ordinary laws.

When the Supreme Court ruled in 2008 that there would be no more civil imprisonment for indebtedness in the case of an unfaithful trustee, it placed human rights treaties that were not approved under the legislative process of constitutional amendments one level above federal ordinary laws. In other words, within a hierarchical scale such treaties would be below the Constitution, but above any other domestic legal disposition. This is the case of the Inter-American Convention on Human Rights.

Consequently, all laws and other normative acts are only valid after submitted to (and approved in) both constitutionality and conventionality control.

The Doctrine of the Conventionality Control in Use

The doctrine started to be delineated under the scope of the Inter-American Human Rights System with the case Almonacid Arellano y otros vs. Chile (2006), in which the Inter-American Court argued that national judges, as part of the State, are bound by the conventions the State has ratified, and therefore must verify if the domestic legal order is compatible with the provisions of the American Convention by exercising a sort of conventionality control. The Court established “to perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.”

In 2012, a group of Law students gathered and led by Professor Flavianne Nóbrega (at that time professor of Universidade Federal da Paraíba), decided to put academic knowledge into practise. One of its goals was to assist the Public Prosecution and the Public Defence in assessing the Inter-American System treaties and jurisprudence, so as to identity how human rights standards could be used to uphold legal actions concerning human rights violations.

Named “Access to the Jurisdiction of the Inter-American Human Rights System,” the group is registered at the National Council of Technological and Scientific Development and has been contributing to the aforementioned institutions with international legal aid, being mostly focused on cases that involve violations of the right to health and the rights of indigenous people and other traditional communities to the land.

In 2014, with regards to the situation previously described involving those sixteen patients, the Public Prosecution of the State of Paraíba requested a legal opinion on the extent of Brazil’s duties to protect, respect and fulfil human rights under the Inter-American Court of Human Rights, emphasizing the right to health.

The group searched for all human rights documents relating to this subject, some even beyond the inter-American scope. The main sources included the American Convention on Human Rights the Convention on the Rights of Persons with Disabilities and the jurisprudence of the Inter-American Court of Human Rights.

Based on meticulous research, in July of 2014 the group wrote a legal report highlighting the reasons why Brazil should allow the import of cannabidiol-based products for medical use, grounded on the idea of the conventionality control. The main arguments emphasized that, according to the current status of incorporated human rights law in relation to the federal ordinary laws and other normative acts, the prohibition of the National Health Surveillance Agency regarding cannabidiol represented a violation of the human right to health, since it prevented the access to the most reliable treatment available.

The Public Prosecution filed a class action using the full content of the legal opinion written by the group and obtained in 2015 an injunction against the State, which allowed the patients to import the products. In the same year the National Health Surveillance Agency removed the cannabidiol from the list of banned substances, thus authorizing its prescription for patients whose medical conditions demand the use of cannabidiol-based products. The judgment on the merits was rendered three months later.

iago

Little Davi, aged 5, awaiting his mother to prepare the cannabidiol-based medicine.

Source: http://oglobo.globo.com/sociedade/anvisa-divulga-orientacao-sobre-como-importar-remedio-feito-partir-de-substancia-da-maconha-12460663

The implementation of the right to health poses everyday challenges. Some Brazilian families still struggle to get access to effective medical treatment concerning CBD. However, the decision represented a big step towards protecting human dignity. Furthermore, it shows that when a group of dedicated students decide to talk about human rights and do something about it, good things happen…in Paraíba or in London!

*Iago Morais de Oliveira is an undergraduate Law student at the Federal University of Paraíba, Brazil. His main research interests include International Criminal Justice and International Human Rights Law, especially within the scope of the Inter-American System of Human Rights.

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Dec 8 2016

Nepal in Conflict: The War for Justice Continues

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*By Harsh Mahaseth

In 1996, a civil war broke out in Nepal between the national security forces and the Maoist political movement led by the Communist Party of Nepal – Maoists (CPN-M). The conflict came to an end a decade later in November 2006. In 2007 an interim government was established that incorporated the CPN-M. However, the conflict over justice still remains to be resolved.

The end of the civil war culminated in the Comprehensive Peace Accord (CPA), which was signed by the seven political parties in Nepal, including the CPN-M. However, the subsequent Enforced Disappearances Enquire, Truth and Reconciliation Act, 2071 (TRC Act) 2014 has resulted in provisions that are not in compliance with the CPA and do not uphold Nepal’s obligations under international law.

The idea of providing amnesty for war crimes is antithetical to the general principles of international law; however, the current Nepalese stance is pro-amnesty. Due to this there is a lack of trust in the Truth and Reconciliation Commission (TRC) and other transitional justice mechanisms and to date, the judiciary has played the largest role in the transitional justice system of Nepal. In personal interviews, the victims of the conflict expressed their lack of trust in the TRC, stating that because the perpetrators of the crimes were part of the committee itself, they did not expect justice.

While the CPA does not mention amnesty at all, Section 13(2) and 13(3) of the TRC Act have been read together to suggest that existing cases could be sent to the TRC for consideration, which could delay or even obstruct criminal investigations. This read along with Section 29 could provide for amnesty if deemed reasonable, except in cases of rape and grave rights violations. Additionally, the definition of grave rights violations has not been clearly defined and has been used inconsistently. While the Supreme Court has challenged the Truth and Reconciliation Ordinance as well as the TRC Act, which they have deemed to be unconstitutional, the implementation of the rulings is yet to be seen.

In contrast to what has transpired in Nepal, the transitional justice system in the Solomon Islands had a provision for amnesty, which was guaranteed under the Townsville Peace Agreement (TPA), but later all the perpetrators were tried for their crimes. The National Parliament of the Solomon Islands enacted two acts before the formation of the TRC, granting amnesty to people who would have been held guilty for their crimes during the civil war, as well as weapons amnesty and general amnesty as provided under the TPA. A largely Christian nation, many people in the Solomon Islands pushed for the forgiveness bill, but this is yet to be passed and only a few cases have been granted amnesty to date. Moreover, the judiciary has conducted several ‘tension trials’ in which former combatants who testified to their wrongdoings in belief that they would be provided amnesty ended up being convicted. Combatants who committed acts such as murder were sentenced to life imprisonment.

Unlike the transitional justice system of the Solomon Islands and the TPA, where there was a provision for amnesty, there was no express mention of providing amnesty in the CPA in Nepal, but the TRC included such a provision. To make matters worse, a 9-point agreement was signed between the current government and the CPN-M that also included a provision for amnesty.

A major concern for the perpetrators of war crimes is universal jurisdiction; they cannot leave Nepal as they could be tried for their crimes outside the country. Many fear the same fate as Colonel Kumar Lama, who had committed wartime atrocities and later fled to the United Kingdom only to be imprisoned there on two counts of torture. While this may not be of concern to every perpetrator, this does concern people in the higher levels of security forces, including those who work for the peacekeeping forces of the United Nations. The TRC Act, which may protect the perpetrators at the domestic level, does not protect them at the international level.

As a country that is heavily dependent on foreign aid and also a party to most Human Rights Conventions, Nepal’s push for amnesty has been short-lived. A provision of a special court, comprised of a domestic and foreign jury is something that could become a reality.

The establishment of the TRC is the Government’s final opportunity to provide the victims of the civil war with reparations and justice. But as hundreds of cases have already been shelved, people have lost hope in the TRC. Similar to the case of Cambodia where the Extraordinary Chambers in the Courts of Cambodia only awarded “collective and moral” reparations, in Nepal the Government cannot bare the financial burden of monetary reparations. The international community will likely have a huge role to play in the Nepalese Government providing the victims reparations; however, the international community would not support a system that goes against its principles. Thus the long running debate around the push for amendments in the TRC Act continues, as well as the fight for transitional justice in Nepal.

*Harsh Mahaseth is currently pursuing his bachelor’s degree in law from the National Academy of Legal Studies and Research (NALSAR). He has previously assisted the Centre of Legal Studies (CLS) in monitoring the transitional justice process in Nepal. With an aim to go back to Nepal and help establish a sustainable environment for peace and prosperity, he has been dedicated to International Humanitarian and Criminal Law with these forming his prime areas of interest.

 

Works cited: 

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Dec 5 2016

Cultures of Care: Morality and Gender

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By Sabin Muzaffar*

This article was previously published at: http://anankemag.com/2016/08/07/cultures-of-care-morality-and-gender/

Cultures of Care

Stemming from a patriarchal mindset, care-giving responsibilities to the young and old alike are presumed to be mainly a woman’s job. All across the world, women spend disproportionately more time doing care work with little to no remuneration.

Additionally, care work either goes unacknowledged or is relegated to the lowest familial ranks and/or positions in the labour market, confining women to gendered and societally segregated roles of child-rearing and domestic work. Thus arises the notion of the “Second Shift”[1] – the idea of not only being grievously under-paid and under-valued, but also grossly exploited.

Eastern societies, especially those in the Indian subcontinent, have emerged from an agrarian-feudalistic civilization. These regions have historically based their values on the commodification of means of production. With feudalism sanctioning men and those in power to brazenly extract produce and surplus from direct producers. Such societies subordinate those economically challenged and/or physically weak, from the serfs to women and children – producing unequal economic relations and social reproduction, and paving the way to oppressively gendered hierarchies.

According to Nancy Folbre in her book, Greed, Lust and Gender: A History of Economic Ideas,[2] “Patriarchal feudalism could be described as a set of implicit exchanges in which the subordinated parties (whether serfs, women, or children) received protection and security in return for working long hours in the service of their superiors. But these exchanges were enforced by threat of violence as well as weight of political and military power… Men benefited from a division of labor that assigned women the least remunerative forms of work; feudal lords, for the most part, inherited their land and privilege. Men, having chosen a wife, were legally bound for life.”

Historically speaking, this patriarchal hegemony can also be seen in the Middle East, with fathers, brothers, or husbands possessing supreme authority over women.

This belief system places care responsibilities solely on women’s shoulders, creating an unfair cycle of social reproduction.

Cultural Diversity in the Subcontinent

History is replete with stories of women maintaining a high status in ancient Indian society, though that position gradually eroded during the medieval and modern times. By and by, women’s status in the agrarian subcontinent hit rock bottom as feudalistic exploitation grew.

As a consequence, it magnified the commodification of women as a means of production. Not only did this emerging “norm” completely ignore care and domestic work as real work, it even went on to overlook women’s untiring efforts outside the home and on the lands.

Society was eventually shaped into an ironically patrilineal one. Women had the double burden of work within the confines of their homes as well as outside chores from bringing in water to tending the crops. It was indeed a dire situation as they did not even have the right to bodily and financial autonomy, let alone be recognized as pivotal players in economic and social development.

Post partition, the subcontinent has experienced a systemic decline in the status of women and the consequent rise of gender inequalities, be it in bodily and financial autonomy, education, or exclusion from the labour market. And the status quo largely remains the same.

Although different shades of traditions and cultures can be found across Pakistan, Nepal, Bangladesh, and India, one common aspect is the uniformed patriarchal mindset. These societies thrive on power relations, which tend to exploit all activities including care work performed by women, even to the extent of discounting them.

Role of Culture

It is clear that a gendered approach to care finds its roots in economic power relations, bolstered by the imposition of biased belief systems, rigid mindsets, and traditions as interpreted by stakeholders – in other words, those with power.

The impact of such an approach to social reproduction is cataclysmic as far as economic development is concerned. Disempowering women through discounting their labour – be it care or domestic work – has dire ramifications on development, the overall quality of life, and therefore sustainability.

Talking about gender roles and Pakistan’s patriarchal society, Safeer Ullah Khan, Executive Director of Bedari[3] explains in an interview: “Culture plays a very important role in setting gender norms, and unfortunately, culture is heavily tilted against women. The division of labor is very clear – man is supposed to earn, and woman has to take care of the house. As the financial earning is responsibility of the man, hence the monetary control also remains with him. The woman takes up the role of the caregiver, which is an inherently unpaid job, so she remains dependent on man (on father in her early life, on husband in her middle life, and on son in her later life). The gender roles are so clearly defined that it becomes nearly impossible for men to come to the support of their women even if they want to. The social pressure is so great to adhere to your gender role that you just can’t breach it.”

Adding further, Khan states: “Culture puts the responsibility of care giving exclusively on women’s shoulders, making life difficult for them. I don’t know about other societies, but in Pakistan men are actively discouraged from sharing the care related responsibilities by the society, which means it would take really long to change the mindset, and bring any improvement in women’s lives. And because they are mostly caring for their own children, husband, or in laws, women are not supposed to ask for money as it would be highly offensive to make such a demand. Any woman making such a demand would be severely censured by the entire community.”

Care work impacts all of us, yet it is hardly recognized or endorsed as so. To achieve gender equality in every socioeconomic sphere of society, recognizing and elevating the status of care work is a must. Rights-based policies and laws on the premise of shared responsibilities by all stakeholders (individuals, public and private sectors) are fundamental stepping-stones to achieve this end.

Additionally, gender-sensitive education and awareness that promotes co-sharing of responsibilities is important as it has the power to fracture stereotypes within the family and community.

Until our hegemonically patriarchal mindset is completely dismantled, all will remain but a bombastic rhetoric.

[1] See http://geekfeminism.wikia.com/wiki/Second_shift.

[2] See http://blog.oup.com/2011/02/patriarchal-feudalism/.

[3] http://www.bedari.org.pk/.

*Sabin Muzaffar (Twitter @Critoe) is the Executive Editor of Ananke (www.anankemag.com) – eZine empowering women. She has been in the publishing business for two decades and has worked for prestigious media globally. Sabin believes in creating social impact and empowerment through education.

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Nov 23 2016

The new surrogacy law in India fails to balance regulation and rights

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*By Simran Aggarwal and Lovish Garg

India has a thriving surrogacy market with an estimated valuation of over 2 billion USD. However, the industry – which has been largely unregulated until now – is expected to witness an extensive overhaul with the proposed Surrogacy (Regulation) Bill, 2016. The watershed provisions of the new Bill seek to impose a blanket ban on commercial surrogacy primarily to check the exploitation of poor women, while permitting altruistic surrogacy in the country.

The Bill, however, comes with two caveats while allowing altruistic surrogacy: first, it outlaws altruistic surrogacy for unmarried couples, foreigners, single parents, live-in partners, and homosexuals; and second, only Indian couples who have been legally married for a minimum of five years can avail its benefits.

The proposed law is not only legally unsound but also highly divorced from the Indian social reality. By banning, rather than regulating, the market, the government cannot ameliorate the exploitation of poor women who are coerced into surrogacy. It is a regressive law embedded with overtones of Indian patriarchal mindset, which is bound to push the surrogacy market underground and escalate the oppression faced by Indian women.

Constitutional invalidity of the proposed law

The Surrogacy Bill fails to adhere to the “Golden Triangle” test devised by the Indian Supreme Court to inspect the constitutional validity of the laws enacted by the Government. This test of reading equality, liberty, and freedom of rights conjunctively aims to ensure that the basic fundamental rights of individuals are not encroached upon by the State.

Firstly, the proposed law infringes Article 14 of the Indian Constitution, which guarantees “equality before the law and equal protection of laws to all persons.” Restricting altruistic surrogacy to only married Indian couples and disqualifying others on the grounds of nationality, marital status, and sexuality impinges upon the right to equality for being an unreasonable classification. Given that the Bill is motivated by a desire to shield women from exploitation and prevent commodification of the birth process, the restriction also fails to bear any nexus with the intended objectives of the legislation.

Further, by disallowing the right to choice vis-à-vis surrogacy for homosexuals and unmarried couples, the Bill reinforces the majoritarian Indian morality that stigmatizes the idea of homosexuality and unmarried people living together. Here, it is pertinent to note that being a homosexual or residing in a live-in relationship is not illegal per se in the country, and limiting the access of altruistic surrogacy is a clear instance of discrimination against these minorities.

Secondly, the Bill violates the “right of livelihood” and “right to reproductive autonomy” enshrined under the broad framework of Article 21 of the Constitution. The ban on commercial surrogacy threatens the livelihood of many poor women in the country who have been able to educate their children, establish businesses, and financially support their families through surrogacy. The number of such women, many of whom are sole breadwinners, is estimated to be more than 100,000.

Further, the Indian Supreme Court has interpreted the right to reproductive autonomy to mean that the parents have the prerogative to choose the mode of parenthood, either naturally or through surrogacy in this case. Normatively and constitutionally, the method of procreation and parenthood lies outside the domain of the State, and any interference in this choice will warrant an infringement of this Fundamental Right.

Thirdly, the proposed law is foul of Article 19 in general, and Article 19(1)(g) specifically, which guarantees the “freedom of trade and profession” in India. The surrogacy industry is the source of bread and butter for not only the surrogate mothers but also the numerous surrogacy clinics in the country. A blanket ban on commercial surrogacy cannot be justified as a reasonable restriction because it jeopardizes the interests of multiple stakeholders in this multi-billion-dollar industry.

Infringement of international covenants and obligations

The Surrogacy Bill also contravenes several safeguards to human life, health” and dignity enshrined in the various international covenants ratified by India. By interfering with the reproductive rights of the individual, the proposed law infringes upon the “right to found a family” enshrined in Article 16 of the Universal Declaration of Human Rights. An additional challenge to the Bill also arises from Article 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination against Women,  which requires state parties to ensure equality of rights for men and women “to decide freely and responsibly on the number and spacing of their children.”

The UN Special Rapporteur on the Right to Health has also highlighted the importance of freedoms and entitlements pertaining to reproductive, maternal, and sexual right, including the right to family planning services for the attainment of the highest possible standard of physical and mental health. The Bill further violates the state’s core obligation to ensure equal treatment and non-discrimination in access to reproductive health service by restricting the access to altruistic surrogacy.

Unanswered questions and the way forward

In its present form the Surrogacy (Regulation) Bill 2016 seeks to achieve the twin goals of: (1) preventing the exploitation of poor women; and (2) preventing the equating of the surrogacy process with renting a womb. While the legislators’ intentions are well placed, their provisions aren’t. Yes, the State must intervene to check the exploitation of poor Indian woman who are coerced into surrogacy, but it should not be done in a manner which is inimical to other individuals who are well within their legal and human rights to avail surrogacy services.

Instead of imposing a ban, the commercial surrogacy market should be regulated for the protection of the vulnerable in the surrogacy contract. A balanced path by the Government would be the adoption of a rights-based approach addressing the concerns of the surrogate mother, children born out of surrogacy, and other stakeholders in the surrogacy market. India needs a centralized system that could regulate the surrogacy market by addition of supplementary checks and balances, transparency, and registration of surrogacy contracts. This would also eliminate the middleman, ensuring that the entire compensation reaches the surrogate mother.

The proposed law is a clear case of homophobia, majoritarian enforcement of cultural norms, and discrimination against non- heteronormative relationships. By limiting the access to surrogacy on fallible and exclusionary grounds, the government will also provide impetus to a rising black market for wombs. Lessons have not been learnt from the ban on sex-determination tests and organ donations, which have previously pushed the entire market underground and left it completely unregulated.

Works Cited

  1. Law Commission of India, Government of India, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy,” Report Number 228 (August 2009).
  2. Department of Health Research, Government of India, “The Surrogacy (Regulation) Bill, 2016” (August 2016).
  3. UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, 18 December 1979, United Nations, Treaty Series, vol. 1249.
  4. UN General Assembly, “Universal Declaration of Human Rights”, 10 December 1948, 217 A (III).
  5. UN Human Rights Council, “Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras,” 2 April 2015, A/HRC/29/33.
  6. The Constitution of India, Republic of India, 1950.
  7. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
  8. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
  9. Indra Sarma vs V.K.V.Sarma, 2013 (14) SCALE 448.
  10. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
  11. Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235.

 *Simran Aggarwal and Lovish Garg are third-year law students at National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad. They will be graduating in 2019.

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Nov 21 2016

Durable Solutions For Refugees: Principles And Implementation Strategy Of A General Framework

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By Liliana Lyra Jubilut* and André de Lima Madureira**

Refugees count on 3 durable solutions: 1) local integration, 2) resettlement and 3) voluntary repatriation. They “allow them to rebuild their lives”[1] and “to live their lives in dignity and peace”[2].

Durable solutions are a key component of the refugee regime[3], as they are instrumental for assisting refugees in accessing either protection or rights. They have to be seen as protection tools.

Refugee protection should not be divided into what happens before RSD and after it.  A dichotomy between refugee protection and durable solutions should not exist. They need to be seen as mutually reinforceable: durable solutions are instrumental for the protection of all rights refugees are entitled to under refugee law and human rights law; and protection is a goal of durable solutions ascertaining rights throughout refugeehood.

Refugee protection needs to be seen in a more holistic manner, encompassing traditional refugee protection topics and durable solutions.

There are no legal entitlements to durable solutions in International Refugee Law[4]; they are not rights per se and remain at the discretion of states. This imposes challenges, as, although the international community needs to work with durable solutions as “answers” to refugee conditions, core aspects of them are still rather feeble[5].

In light of this, establishing a general framework for durable solutions is a necessary proposal[6].  It would aid in clarifying (i) what rights refugees are entitled to, (ii) the policies to guarantee them; and (iii) how durable solutions should be sought and applied in a principled way.

We propose 8 principles that a general framework for durable solutions should be based on:

1) Perceiving durable solutions as protection – An idea so vital that it has to be at the basis of the framework (foundation)[7] but also an aim (i.e. a principle). Traditional refugee protection and durable solutions need to co-exist.

2) Respecting the human rights principle of non-discrimination – Different solutions can be applied to different scenarios, but any difference in treatment needs to be justified and always be based on the best interests of refugees. Non-discrimination needs to be present throughout refugeehood.

3) Commitment to not establishing limitations on human rights – Integral protection is the aim, and the most comprehensive protection should always be the goal. Refugees should not suffer excessive or unjustified restrictions on their human rights because of their refugee condition.

4) Balancing States’ interests and refugees’ needs – This is part of the goal of the framework but needs to also figure as an aim (i.e. principle), as it is a guideline when looking for solutions. Benefiting States, local host communities and refugees seem to be the better way forward in securing long-term adequate solutions[8].

5) Prioritising the best interests of refugees – if respect for principle 4 in its entirety is not possible and a choice between States’ interests and refugees’ needs is in order; the protection of refugees needs to be a priority.

6) Involving refugees in seeking and implementing durable solutions – Refugees should have an active part in the decisions on the solutions for their cases, thus respecting not only autonomy and individuality, but also increasing the chances of successful solutions through empowerment. The best mechanisms to use to give a voice to refugees needs to be sought on a case-by-case basis.

7) Seeing durable solutions as part of a non-hierarchical toolbox – No a priori preferences among the existing durable solutions should guide action and options in each case. All possibilities need to be taken into consideration to find the most adequate durable solution in a particular situation.

8) Choosing the best solution for each case – Taking into account particularities and peculiarities as much as possible and to address them in a principled way. This would entail, at the very least, the incorporation of a gender, age and diversity approach in all solution-seeking actions; and would allow for the inclusion of other perspectives on vulnerabilities and particular situations of refugees.

Regarding implementation, it seems that the best strategy would be to start by means of soft law instruments. The general framework would be based on hard International Human Rights Law, but be implemented through soft law instruments. A pathway in this sense would be the adoption of guiding principles on durable solutions, in the same model as there is for Internally Displaced Persons (IDPs), for example.

In light of the current complex migration scenario, focusing on durable solutions may be relevant in finding ways to not only manage the “crisis” but also to enhance the protection of refugees. A general framework on durable solutions, such as the one outlined above, is a positive step in this direction.

* Professor of the Masters and PhD Programme in Law at Universidade Católica de Santos (UniSantos), former Lawyer/RSD and Protection Officer/ Outreach Protection Consultant at the Refugee Centre of Caritas Arquidiocesana de São Paulo (Brazil) and former UNHCR-Brazil Consultant. E-mail: lljubilut@gmail.com

** Master in Law by Universidade Católica de Santos (UniSantos), MSc Human Rights student at LSE, former Lawyer/RSD and Protection Officer at the Refugee Centre of Caritas Arquidiocesana de São Paulo (Brazil). E-mail: alimadureira@gmail.com

[1] See: http://www.unhcr.org/en-us/solutions.html

[2] Ibid.

[3]Seeking permanent solutions” is stated as a function of UNHCR, in its Statute, article 1.

[4] TÜRK, Volker; DOWD, Rebecca. Protection Gaps. In: FIDDIAN-QASMIYEH, Elena; LOESCHER, Gil; LONG, Katy; SIGONA, Nando. The Oxford Handbook of Refugee and Forced Migration Studies. Oxford: Oxford University Press, 2014. p. 284-85.

[5] For some of the challenges that durable solutions currently face see: MADUREIRA, André de Lima; JUBILUT, Liliana Lyra. Durable Solutions: 5 implementation challenges and possible pathways for improvement. Refugee Research Blog, July 2016. Available at: http://refugeeresearchblog.org/durable-solutions-5-implementation-challenges-and-possible-pathways-for-improvement/

[6] For the first proposal of said framework see: JUBILUT, Liliana Lyra; MADUREIRA, André de Lima. Why not a general theory for durable solutions for refugees. 1st Annual Conference of the Refugee Law Initiative – The future of International Refugee Law. London, 30 of June, 2016. Available at: http://www.sas.ac.uk/sites/default/files/files/RLI/Why%20not%20a%20general%20theory%20for%20durable%20solutions%20for%20refugees.pdf

[7] For the foundations of the general framework being proposed see: JUBILUT, Liliana Lyra; MADUREIRA, André de Lima. Thinking long –term: A foundational framework for durable solutions for refugees. Oxford Human Rights Hub Blog, 2016 (forthcoming)

[8] Ibid.

Posted by: Posted on by sekyerek

Nov 14 2016

#StandWithCongo

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By Elizabeth Edwards*

On Monday 24th October, I attended the London premiere of the documentary When Elephants Fight at the LSE.[1] What I watched left me both stunned and appalled. I would urge you all to find an opportunity to watch the documentary and join in on the debate. #StandWithCongo

The film discussed how a vast wealth of mineral resources, mined deep within the grounds of the Democratic Republic of the Congo, have fuelled a complex, multi-faceted war which has perpetuated human rights abuses on an atrocious scale. It was shocking to me that I knew so little about the horrendous realities faced by many men, women, and children living in the Congo – particularly in the eastern provinces of North Kivu, South Kivu, and Katanga – including brutal physical and sexual violence at the hands of rebel groups (such as the FDLR) and government militia (FARDC). People living in the Congo also experienced gross levels of structural violence as a result of political corruption and mismanagement. The Congolese people explained that they lived in a world fuelled by economic uncertainty: lack of secure, well-paid jobs and inadequate access to education perpetuated cycles of poverty and conflict. Vulnerable children were militarised to such an extent that war became a game to play and death became something to sing about. What will become of these children’s futures? The documentary paints a bleak picture.

As I watched footage showing the aftermaths of ruthless violence and listened to the testimonies of disempowered individuals, I was gradually filled with a deep sense of crisis and outrage. Why does all this conflict, this abuse, this misery, continue to happen to so many people living in the Congo? And how could I, just one person who sat thousands of miles away, do anything at all to help mitigate the situation?

Well, the documentary left me in little doubt about what to do. It gave me a sense that I could do something, however small. Firstly, by simply talking about these issues and raising awareness. Because we are not disconnected or distanced from the Congolese struggle. The film brought the terrifying realities of people’s lives into the very heart of London that dark night. It brought their grim stories into the minds of everyone who watched it. But to those of you who haven’t watched it yet: let me just tell you, that you too are not as many miles away from the Congo as you think. Because you carry a bit of it with you. Perhaps you are even holding a bit of it now. If you own a smartphone, or some form of technological device, you are most likely in possession of Congolese minerals such as coltan, tin, and gold. These minerals are essential to the smooth running of your gadgets but they may have a dark and untraceable history. This is the heart of the problem. And this is why these atrocities continue to happen.

I am not an expert on Congolese history and clearly I cannot give you the answers to the issues so succinctly put forward in the documentary. But I can make you more conscious about conflict minerals so that they do not end up in your hands again. The people who mine these minerals in desperate, unsafe, and dangerous conditions are not the ones who see any financial returns. The minerals are illegally smuggled out of the country and sold through the neighbouring countries of Uganda and Rwanda. This profits armed gangs and rebels, and fuels conflict and human rights abuses. Furthermore, lucrative and furtive deals between politicians in the Congolese government and predatory transnational corporations has resulted in the loss of billions of dollars of revenue (approximately $1.36 billion between 2010 – 2012) as international mining firms are granted land concessions to plunder the earth for its natural resources. Mineral wealth does not contribute to the national economy, which is desperately needed for education, health, and development, but is held in the hands of a few, mysterious, economically elite throughout the globe.

So, what can you do? Well, the next time you are thinking about buying a new device, make sure it comes from a company committed to sourcing ethically produced minerals, which can be legitimately tracked from their source all the way through the supply chain. This will help reduce armed conflict, illegal smuggling, and hopefully improve working conditions for the miners. Hopefully, this will help stem the flow of mineral wealth leaving the country and ensure that the profit goes to the people who need it the most.

You can also #StandWithCongo. Share with your friends, host a free screening, and sign their pledge to demand transparency and full disclosure within all Congo mining industries run by the state and multinationals. This is so that we can discover who exactly is benefiting from the mineral wealth being extracted from the Congo and ensure that all companies comply with OECD standards on minerals mined in conflict zones.

Thank you.

Watch the trailer to the film When Elephants Fight.

[1] You can listen to the Q&A session after the event by clicking here.

Works Cited

United Nations Security Council (2004) Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of Congo
<https://www.un.org/sc/suborg/en/sanctions/1533/materials/summaries/entity/forces-democratiques-de-liberation-du-rwanda-(fdlr)>

Woudenberg, A V et al (2009) “You Will Be Punished” Attacks on Civilians in Eastern Congo
<https://www.hrw.org/report/2009/12/13/you-will-be-punished/attacks-civilians-eastern-congo>

War Child (date unknown) Congo’s Conflict Minerals
<http://www.warchild.org.uk/issues/congo-conflict-minerals>

#StandWithCongo (date unknown) The Facts
<http://standwithcongo.org/wp-content/uploads/2016/08/SWC-Quick-Facts.pdf
>

Bloomberg, T W (2016) What it takes to make a conflict-free smartphone
<http://www.mineweb.com/news/industrial-metals-and-minerals/what-it-takes-to-make-a-conflict-free-smartphone/>

*Elizabeth Edwards is a recent graduate (2016) from Durham University where she received a B.A. (Hons) in Anthropology with a Year Abroad. She is currently at LSE where she is studying for an MSc in Human Rights.

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Oct 25 2016

The Constitution Trumps Mr. Trump’s Presidential Plans

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By Rory Mondshein*

Over the past few months, we have heard Republican Presidential nominee, Donald Trump, make numerous promises to the American people. As part of his platform, Mr. Trump vowed to: (1) ban refugees from our shores; (2) simplify our tax code; and (3) construct a wall along the United States-Mexican border–which would be funded by the Mexicans–because “a nation without borders is not a nation, a nation without laws is not a nation.”

Although Mr. Trump is very vociferous about his plans, one must inquire their feasibility. For these reasons, I will explore the constitutional constraints to Mr. Trump’s policy proposals, particularly the way that the federal and state powers will limit his ability to implement his ideas. The United States political system operates on a system of checks and balances in all walks of life.

A. Immigration

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” (U.S. Constitution). That means that, if the Constitution does not explicitly give Congress powers, then it falls into states’ hands. Unfortunately, the Founding Fathers lacked the power of foresight, and intentionally limited congressional powers to avoid government vituperation.

Over time, the descendants began to realize that the Constitution was plagued by cognitive dissonance: the Tenth Amendment granted the states any power that was not explicitly given to the Congress; however, the bureaucratic limitations inhibited Congress from fully performing their duties. The Constitutional confusion was discussed in the 1819 Supreme Court case McCullough v. Maryland, which centered on states’ ability to operate their own banks. The Court’s decision in McCullough produced the concept of “implied powers,” which referred to powers that were not explicitly stated in the Constitution but were needed to perform other duties. After McCullough, Congressional power began to expand vis-a-vis the “Necessary and Proper Clause,” but states still sought to protect their powers and only ceded to the federal government in necessary instances.

Although it was not explicitly stated in the Constitution, immigration has been federally regulated since 1952, which would put it under Mr. Trump’s purview (if he is elected). That said, although the states could complain that Mr. Trump’s “Great Wall of Mexico” is inconvenient, they cannot exert further control in the immigration debate.

In that case, Mr. Trump could easily commission the wall from the American side, but he would need state governments to oversee the construction in their respective areas. Although the state cooperation caveat could be seen as a logistical concern, many Southern states (including Arizona, Texas, and New Mexico) tend to lean towards the Republicans, which increases the likelihood that they will both support Mr. Trump in both the election and the implementation of policy proposals. California, on the other hand, tends to be more liberal so their cooperation in the large-scale wall project is questionable. Californian recalcitrance may add an additional complication for Mr. Trump, as numerous Mexican drug cartels have been found in California warehouses.[1]

In that case, he could commission the wall, but may have a hard time getting it done in California. Mr. Trump, however, can force compliance by threatening to withhold state funding in the style of Lyndon B. Johnson, but this could cost him in his re-election campaign.[2]

B. Deporting Immigrants

On numerous occasions, Donald Trump has made it clear that he plans to deport 11 million undocumented immigrants, but, unfortunately for him, the Constitution inhibits his ability to implement his plan.

As previously mentioned, the Tenth Amendment bifurcates federal and state power, and, while immigration is a federal issue, the states would have to consent and actively work towards deporting all of the “illegals” within their territories. The massive deportation movement would be a logistical nightmare because it would require perfect coordination.

If Mr. Trump wanted to deport all of the illegal immigrants, he would require the states’ assistance in actively identifying them. The fact that the “illegal immigrants” are, in fact, undocumented and therefore not on state records would complicate the identification process. He could, perhaps, advocate for all states to adopt the stop-and-identify approach that was made famous by Sheriff Joe Arpatio, but that would lead to large-scale racial profiling and the deprivation of dignity for members of a certain population.

In addition to coordination, Mr. Trump’s efforts would be enervated by states’ potential unwillingness to cooperate in the mass identification and deportation movement. Although immigration would be under his purview, state recalcitrance would enervate his entire plan, and, due to constitutional constraints, Mr. Trump would not be able to enter each state and personally facilitate the deportation process.

Recognizing the constitutional constraints, Mr. Trump’s big plans can only exist as offensive words meant to exacerbate the ostensible racial tensions, and deprive particular groups of their human rights to dignity. The racial profiling that is the basis of Mr. Trump’s dreams of building a wall and deporting all illegal immigrants is simply atrocious, but there is comfort and solace in the idea that our institutional structures actively limit the full implementation of these xenophobic and poorly constructed initiatives that seek to “make America great again” by antediluvian standards of human rights.

[1] In 2011, U.S. Senator Dianne Feinstein led a meeting with the Senate Judiciary Subcommittee on Immigration and The National Interest to discuss immigration. During this meeting, Senator Feinstein showed the elaborate tunnels that the cartels used to come into the United States.

[2] If he does have a hard time in California, he can punish their state in other ways, like decreasing federal funding, to get the job done. In fact, tons of Presidents have threatened to withhold federal funding in the face of state recalcitrance, most notably Lyndon Johnson threatened to withhold federal funding for states that refused to comply with Brown v. Board of Education so, considering the interdependence between each branch of government and the relationship between federal and state government, there are ways to get around this.

Works Cited

  1. Constitution, U. S. “Article I.” (1999).
  2. Constitution, U. S. “Article II.” (1999).
  3. Constitution, U. S. “10th Amendment” (1999).
  4. Marshall, Chief Justice John. “McCulloch v. Maryland.” United States reports4 (1819): 400-437.
  5. Trump, Donald “Positions” com (2015) https://www.donaldjtrump.com/positions/immigration-reform

*Rory Mondshein received her B.A. in Political Studies and Social Policy from Bard College in 2014. Currently, Rory is the founder of Make It Appn, and serves as the Chief Community Officer of the Political Student. She is pursuing her MSc in Human Rights at the London School of Economics.

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