May 12 2015

How to eliminate violence against women: the view from Scotland

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Janine Ewen is a researcher in the field of Public Health and Human Rights and has been involved in overseas humanitarian work. Her current research is focused on the integration of Public Health in policing practice, with a focus on harm reduction.

Nicola Sturgeon speaking at the Scottish Women’s Aid conference in Edinburgh on 26 March 2015

Nicola Sturgeon speaking at the Scottish Women’s Aid conference in Edinburgh on 26 March 2015

On 26 March 2015, a conference organised by Scottish Women’s Aid took place in Edinburgh. The theme of the day was, Violence Against Women (VAW): a Human Rights Violation’. A number of formal and informal agencies gathered to discuss progress in combatting VAW. The international context was presented by Rashida Manjoo, UN Special Rapporteur on violence against women and a Scottish perspective was provided by Lily Greenan, Chief Executive of Scottish Women’s Aid, the First Minister Nicola Sturgeon and Scotland’s Equality and Human Rights Commissioner Kaliani Lyle.

The day coincided with the 20th anniversary of the Beijing Platform for Action, which laid out the work that should be undertaken globally to improve and protect women’s human rights. The Platform for Action identified violence against women as one of the critical areas of concern. The significance of this anniversary emphasised the conference’s strong focus on the human rights impact of violence against women, globally and locally.

Less than a year since her last visit to the UK, Rashida Manjoo stressed the responsibility on all States to recognise their role in tackling violence against women. “It is my hope that we are working on a common quest towards complete elimination of violence against women,” she said. “My mission to the UK is a starting point; a tool for you in your advocacy and a challenge to us all”.

Manjoo delivered a forensic analysis of International VAW instruments and her own mandate across the globe.

“I rely on CEDAW (The Convention on the Elimination of All Forms of Discrimination against Women) to hold governments to account. Being a mandate has allowed me to measure and evaluate in various countries on the adoption of national legislation, including institutional and policy measures. 125 countries do have policies against VAW; however there are no laws in place to guarantee protection or justice, and that leaves a huge gap. On that note, we need to remember there are no rights unless we have justice. You may find this hard to believe, but women who I have spoken to in developing countries do not believe that violence exists in the developed world against women. That is what happens when you separate both worlds”.

Through her keynote address, Manjoo made it clear that a large amount of convincing is required in her work, despite over four decades’ recognition that VAW is a human rights violation. She noted that governments often favour soft law developments (quasi-legal instruments which do not have any legally binding force) over “hard laws”. However Manjoo said that while soft law is convincing, “it is not enough – we need to strengthen laws so States can be legally bound to respond to this provocative phenomenon”.

The next speaker, Scotland’s First Minister Nicola Sturgeon, emphasised that “we need to put women at the forefront in all means of living… I want to see women across boardrooms to diminish myths that women can’t fill ‘male roles’.. Women have a place in our society, which should be free from discrimination. It’s time for women to break the glass ceiling”. Sturgeon cited her appointment of a gender balanced cabinet in November 2014 as one example of this policy being applied.

Sturgeon, with input from Kaliani Lyle, Scotland’s Commissioner on Equality and Human Rights revealed why Scotland still has work to do on VAW. She noted that only 20 per cent of domestic abuse cases in Scotland are reported to the police. Even with this under-reporting, there were over 60,000 reports of domestic violence in 2012-13, 1372 reported cases of rape and 90 attempted rapes. Furthermore, 70 per cent of women seeking asylum in Scotland will have experienced violence in their lifetime.

Sturgeon announced the development of a new consultation in the Scottish Government into criminal justice reform which could see the creation of a criminal offence of domestic abuse and revenge porn. “I know that changing the law isn’t enough on its own – but it can play an important part in the wider social and cultural changes we want to bring about,” she said.

While the conference was well-received, it did not resolve confusion of the role men can and should play in achieving gender equality. There was also the vexed question of terminology in tackling violence against women: should it be referred to as gender-based violence, or women and violence? As the remarks of Rashida Manjoo on the day demonstrated, gender neutrality has, in some cases, prohibited the advancement of women’s participation and representation in society.

With that being said, equal participation of women and men in decision making was one of the goals of the Beijing declaration and has become an international plea through the HeForShe campaign. This movement towards solidarity for gender equality is important, as it endows men with the responsibility for achieving change alongside women. As Director-General of UNESCO Irina Bokova stated recently, while the struggle for gender equality must begin with girls, it must “also include boys, and it must work within community structures, to shape new social and cultural norms, to fight against violence and discrimination, to craft new forms of global citizenship.”

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May 7 2015

Less no more: why it’s time for marriage equality in Ireland

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Gareth Walsh is a law graduate from Trinity College Dublin, and is currently undertaking the MSc Human Rights at the LSE. His principal academic interest is in the area of socio-economic rights, and utilising the law to bring about social change. As a gay Irish person, the upcoming marriage referendum represents a personally and historically seminal moment for him and his country.

A mural promoting marriage equality in Dublin (source: Flickr/infomatique)

“I have spread my dreams under your feet;
Tread softly because you tread on my dreams.
   – WB Yeats”

With the May 2015 Irish marriage equality referendum fast approaching, it is the long denied rights of a minority group that have been spread out before the general voting public for deliberation. In the debate and the vote that will follow, the Irish public should tread softly, because you tread on our rights.

The endorsement of the right to marry of Ireland’s LGBT (Lesbian, Gay, Bisexual and Transgender) minority population lies in the hands of the country’s heterosexual majority. After years of LGBT rights being denied, it is troubling that the right to marry is now, in effect, being treated as a gift for the majority to grant the LGBT minority.

The concept of a 50 per cent plus one vote lends itself to the idea of a “tyranny of the majority” whereby a bare majority can deny the rights of a minority. A sophisticated and effective democracy entails recognition and protection of minorities, particularly when they cannot command a majority of any vote in an election. The risk of the majority denying the rights of the minority appears small in the case of the marriage equality referendum, but on principle it is concerning that a minority group, their legitimacy and the merits of their cause will be assessed by the public at large. Furthermore, the Irish government opted to hold a referendum on the issue rather than legislating, despite conflicting legal views on whether a referendum is constitutionally necessary.

The quality of our love, the legitimacy of our relationships, and our ability to form a committed and equally valid family unit in society are all the subject of a broad national debate.  Such personal and intimate qualities will be measured and weighed up by the majority, and each individual will come to a conclusion as to whether LBGT relationships are worthy of equal status or not. Yet, despite the risk of minority rights being denied by public decree, the referendum does represent an historic opportunity.

Ireland is the first country in the world to hold a referendum on marriage equality, and so it should be seized as a chance to achieve a resounding win for tolerance and inclusion. A strong ‘Yes’ vote on 22 May won’t just be a hugely important step for LGBT rights in Ireland. It will be highly symbolic globally, and make Ireland the first country to achieve marriage equality by means of popular vote. A general population embracing their LGBT citizens as equals would send a powerful message around the world.

The campaign for LGBT rights in Ireland, as all over the world, has been a long and arduous one. Homosexual activity between men was only decriminalised in Ireland in 1993 following the 1988 David Norris case at the European Court of Human Rights. Homosexuality between women was never criminalised, not because of a progressive policy towards lesbians in Ireland, but because those in power doubted even the existence of gay women. Both the Irish government and judiciary were resistant to change at every stage of the process. In 1983, the Supreme Court of Ireland upheld the law against ‘buggery,’ for which the maximum sentence was penal servitude for life.  That today every major Irish political party is in favour of marriage equality is proof of the remarkable achievements of the LGBT movement in Ireland, and the transformation of Ireland more generally on social issues. The majority of Irish people today are tolerant, open and celebrate diversity.

Should it pass, the marriage equality referendum in Ireland will represent more than just a milestone in the gay rights movement. It will also demonstrate the increasing secularism of a country where public policy has historically been swayed by the Catholic Church. The famous “condom trains” from Belfast to Dublin in the early 1970s or the requirement of a prescription for the sale of non-medical contraceptives until 1985 are examples of the Church’s past power over sexual and relationship matters in Ireland. The influence of the Church also played a role in divorce remaining illegal until 1995 – and even then, it was only approved by the slimmest margin, 50.23 per cent.  Given this background, the marriage equality vote can be a watershed moment, in which the Irish public firmly separates religious influence from civic policies, and votes for inclusion and recognition of all citizens.

Many LGBT people will acknowledge that we are lucky to live in Ireland, a much more tolerant society than in many parts of the world. But as a community being simply tolerated is not enough. We should be celebrated, and have a right to celebrate our love.

When I was in a state-run secondary school in the mid to late 2000s, the topic of homosexuality was almost never mentioned by any member of the teaching staff. My one distinct memory of anything vaguely LGBT-related being brought up by a member of staff is less than encouraging. My year-head was jokingly described as gay by a student because he was wearing a pink shirt. Rather than taking that opportunity to say that there is nothing wrong with being gay, my year-head said that he was the only person in the room who had ‘proved’ he wasn’t gay because he was married and had kids. The message sent to impressionable young people was that the race is on to prove your heterosexuality, to dispel any suspicion of homosexuality as soon as possible, and marriage was held up as being the ultimate mark of heterosexuality. Full marriage equality will send the very opposite message to young gay people: you have nothing to disprove or prove about yourself, just be yourself.

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Apr 24 2015

The origins and harsh reality of human trafficking in Thailand

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Hugo Chow is a current MSc Human Rights student at LSE. He completed his undergraduate study at Chinese University of Hong Kong, with a major in Government & Public Administration and a minor in German. He is currently working as a part-time Research Intern for the Business and Human Rights Resource Centre.

Bright lights in Thailand's nightlife district

Bright lights in Thailand’s nightlife district (photograph: Flickr/Soytal)

Since the arrival of American service officers during the Vietnam War, sex tourism has prospered in Thailand. Today, Thailand has become one of the most popular destinations for people, mostly men, seeking sexual services. It is also a site of sexual exploitation of children. In 2007 the Thai Government, university researchers, and NGOs estimated that there were as many as 60,000 prostitutes in the country under the age of 18. This was a rough approximation and no further figure was released after 2007. These significant numbers remain to be considered an underestimation due to the hidden nature of the crime.

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime adopted by the General Assembly in 2004, defines “trafficking in persons” as:

The recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

One form of exploitation made possible by trafficking in persons is sexual exploitation. As noted above, there are currently no definitive figures on the number of children trafficked in Thailand both internationally and internally, however evidence suggests that human trafficking is a large source of child and adult prostitutes in the country.

In a 2007 interview with the BBC, a human trafficker in Thailand, who herself was trafficked as a child, described how she would “collect” and traffick underage boys domestically. She stated that she targeted boys between the ages of 11 to 13 and locked them up in the bar where she worked. If no desirable targets around Bangkok were found she would hire a van and drive to remote villages to “collect” boys. “He has got a much better life with me than he ever had at home or on the street,” she said, as she told the interviewer about the story of a Cambodian boy she trafficked to Bangkok.

Disturbing as it may be, her rationale is not uncommon. Poverty is an enormous issue in Thailand, as it is in other South-East Asian countries, and can drive children to enter the sex industry. As Patricia D. Levan has observed, young girls in rural villages are forced to seek opportunities in major cities like Bangkok and Chiang Mai as there are simply no prospects in their localities. These girls, poorly educated and unskilled, often end up taking lower-paid jobs which prove to be insufficient for supporting both themselves and their families. Prostitution then becomes the most viable option to earn an income. As revealed in a 2014 National Geographic documentary, these girls are often financially controlled, forced to live in filthy conditions and, in many instances, brutalised by their pimps.

Thailand has in place a comprehensive anti-trafficking law, which came into effect in 2008. The lack of capacity within the Thai Government and its police to enforce this law, however, is believed to one of the main obstacles in ending child prostitution in Thailand. For instance, the 2011 US Department of State Trafficking in Persons report for Thailand highlighted local police corruption, including direct involvement in the facilitation of human trafficking, as a key issue hindering the anti-trafficking effort. The report also critiqued the lack of a comprehensive monitoring system, the absence of a human rights-based approach to labour abuse cases and “systematic disincentives for trafficking victims”. These structural deficits protect human traffickers from accountability and provide cover for transnational crimes.

Another equally important issue to address in discussing trafficking in Thailand is the problem of normalised demand. Travel agents in Asia, Europe, and the United States have been shown to openly promote sex tour packages to Thailand, usually to groups of men, with slogans ranging from suggestive to exploitative. This in turn provides custom to Thailand’s “billion dollar” sex industry, which as I have noted is directly dependent on tens of thousands of trafficked women and children.

As with other South-East Asian countries, problems of child prostitution and sex trafficking in Thailand are highly intertwined. While regulating travel agencies and enforcing laws against the trafficking of children should be prioritised, the Thai Government must also address and acknowledge endemic poverty, which is arguably the fundamental issue that fuels the rampant trafficking of children. With the country’s political saga having halted, now may be the best chance for the Government to focus on this burning issue, and take urgent action to protect the most vulnerable people within its borders.

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Apr 21 2015

Comics and human rights: An interview with the team behind Sogi’s Story

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Professor Andrea Durbach is Director of the Australian Human Rights Centre in the Faculty of Law at UNSW, where she co­-directs projects on health and human rights, and transformative reparations and gender violence post-conflict. Andrea was Deputy Sex Discrimination Commissioner at the Australian Human Rights Commission in 2011-2012.

Jed Horner is a Project Director on health, sexual orientation and human rights at the Australian Human Rights Centre and a PhD candidate at UNSW. Previously, he worked as an external advisor to the New Zealand Human Rights Commission and Office of the Children’s Commissioner (Young Peoples Reference Group).

Interview conducted by Andrew Small (@_ansmall), Lead Editor of the LSE Human Rights Blog.

Could you explain the origins of the Sogi’s Story project and who was involved?

Screen Shot 2015-04-16 at 9.39.07 pm

Two years ago, the Commonwealth Forum of National Human Rights Institutions (CFNHRI) identified the issue of sexual orientation and gender identity as a priority. Chaired by the Australian Human Rights Commission at the time, the CFNHRI undertook to build its own capacity and that of its 16 African members to promote and protect the rights of LGBTI people. The AHRCentre was commissioned to design an educational resource that would address misinformation, dispel harmful myths and stigmas and provide possible options for resolution and remedy for individuals and communities facing discrimination on the basis of their sexual orientation, gender identity, or intersex status. The project was funded by the Australian Government’s Department of Foreign Affairs and Trade and the AHRCentre worked with a graphic design studio, The Explainers.

Do you think comic books allow for a more nuanced approach to representation of LGBTI issues than, say, a research report or a documentary feature?

In designing the resource, we were very aware of the need to develop something useful, accessible and transportable to those working to challenge the horrors of discrimination, but that did not endanger them or exacerbate their struggle – given that the majority of the 16 African countries have criminalised homosexuality by law. So, we had to find a format that conveyed information but contained minimal words and captured ideas visually to attract an audience that layers of written text might have alienated. It also had to be easily translatable into French or indigenous languages and graphically meaningful to those without reading skills. In Sogi’s Story, the visual depiction of human rights violations, including corrective rape and assault, can move people in a way that words, although powerful, tend not to.

A challenge in producing a human rights resource for a wide audience is striking the right balance between an engaging narrative and a coherent Screen Shot 2015-04-16 at 9.46.14 pmmessage. How did you approach this challenge in preparing Sogi’s Story?

Given the complex nature of the subject matter, ensuring the presentation of a coherent, universal message to different audiences was a significant undertaking. Working with colleagues from Ghana, Zimbabawe and South Africa, we prepared a lengthy briefing document on the 16 countries, which included relevant domestic legislation and examples of local human rights violations against LGBTI activists, defenders and individuals. Using this document and NGO reports, the graphic design team crafted a love story narrative that acutely communicated the horrors, the tragedy and the hope central to a political struggle for equality.

Terminology is often controversial in debates around sexual identity issues. How did you settle upon the term SOGII (Sexual Orientation and Gender Identity and Intersex Status) for use in the fact sheet accompanying Sogi’s Story?

In many ways, the name of the main character in our comic or graphic novel, Sogi, determined the overall terminology. From the outset, it was quite clear that we had to mould our terminology around international human rights jurisprudence, and not use or invent terminology that didn’t reflect the international legal landscape. The terms sexual Screen Shot 2015-04-16 at 9.44.06 pmorientation and gender identity, for example, are widely used as evidenced in UN resolutions, as well as the well-known Toonen v. Australia case. We also researched local NGO usage of appropriate terminology. Adopting this terminology allowed us to keep our specific focus consistent with international jurisprudence and with the work of many NGOs working in this area at a regional or local level. More specifically, using this language enabled us to articulate the fact that every human being has a sexual orientation or a gender identity, or may indeed be intersex.

More generally, are there any limitations to the usefulness of a human rights based approach in combating violence and discrimination on the basis of sexual orientation, gender identity or intersex status?

Screen Shot 2015-04-16 at 9.47.53 pmIn developing our project, it was very evident that in some contexts, where domestic laws are in violation of international human rights law, the very notion or utility of universal, interdependent and indivisible rights seems unimaginable. But we also recognised the value of equipping people with the knowledge that presented them with alternatives. The challenge lies in translating international human rights principles into practice in local contexts, so that they are appropriate and can be used to educate, mobilise and empower communities, even incrementally. It’s also important to remind communities that they have recourse to national and international human rights bodies and NGOs and that, even in the face of the worst forms of discrimination and related violence, there must and can be accountability, including internationally.

Now that Sogi’s Story has been launched, are there plans to get copies of the comic to the 16 countries involved in the project?

The Commonwealth Secretariat and the Australian Human Rights Commission distributed Sogi’s Story to the 16 African NHRIs who are members of the secretariat.

What has the reaction to Sogi’s Story been so far?Screen Shot 2015-04-16 at 9.43.20 pm

Sogi’s Story was launched in Canberra in September 2014, at an event co-ordinated by the Department of Foreign Affairs and Trade, the Australian Human Rights Commission and the AHRCentre. The South African High Commissioner spoke of the critical importance of the need to embrace difference and Australian Senator Dean Smith said it was appropriate that Sogi’s did not end in a traditional, tidy fashion “because the next chapter in Sogi’s Story is yet to be written. And in a very real sense, we will be its authors.” The resource has been lauded by NGOs, NHRIs and academics. It has been distributed online and is available for download. The resource has also been welcomed not only for its content but its various formats.

This question requires gazing into the future somewhat, but how will you be able to gauge whether the project has achieved its aims?

If there is an increasing awareness of issues surrounding sexual orientation and gender identity, as well as intersex issues, within national human rights institutions that would be an achievement itself. Another key indicator of success would be the extent to which engaging forms of human rights advocacy, including through visual formats, such as Sogi’s Story, are taken up by other organisations, both working in Australia and abroad, to engage a broader audience.

You can view the full Sogi’s Story comic, along with a short video and fact sheet at www.sogistory.com 

Want to read more on comics and human rights? Have a look at our Comics, Human Rights & Representation series, published in February 2015. 

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Apr 10 2015

An argument for democracy from an LGBT perspective

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Jonathan Cooper is the Chief Executive of the Human Dignity Trust (@HumanDignityT). This article was originally published in a different form by Pink News.

Winston Churchill

In comments to Cabinet in 1954, Winston Churchill anticipated the push for LGBT equality

With the UK’s General Election fast approaching – and Ireland’s marriage equality referendum to take place soon after – it is worth reflecting on how democracy has served the LGBT community in recent years. Winston Churchill once described democracy as “the worst form of government except all the others that have been tried.” But what is democracy? And what has it ever done for LGBT (Lesbian, Gay, Bisexual and Transgender) people in the UK?

If democracy is just about voting every five years or so, leading to a government formed by the party with the most MPs elected: then it has done very little for LGBT people. The offence of “gross indecency”, for example, which tyrannised us all – women and men – for over a century by criminalising intimacy between men, was created by an elected House of Commons. They didn’t even bother to vote on it; in 1885, the House of Commons just passed the law containing the offence. To his credit, Churchill recognised that gay men were being tormented, but conceded his Government could do little or nothing about it. He pointed out in 1954: “… I wouldn’t touch the subject. Let it get worse – in hope of a more united public pressure for some amendment… Remember that we can’t expect to put the whole world right with a majority of 18.”

During the 1950s, as many as one thousand gay men were in prison at any one time for being gay. Pressure from the Church of England and then the Wolfenden Report calling for decriminalisation did bring about a partial reprieve. But this only occurred at the end of the 1960s, and there were significant caveats. Crucially, the legislation clarifying that consensual sex between men was legal required that both men were over 21, there were only two people involved and they were in private. Anyone else would be convicted. Ironically, after the law changed in 1967 there was an increase in convictions.

After 1967, there was no further action from the UK Parliament for 30 years, except a refusal by elected representatives to create an equal age of consent for LGBT people. Worse still, 1988 saw the introduction of Section 28 to the Local Government Act, which prohibited local authorities in England and Wales from “promoting” homosexuality, and labelled gay family relationships as “pretended [sic]”. By the end of the 70s, the UK had protection against race and sex discrimination, people could still be fired, not hired, made homeless and denied services simply because they were gay, lesbian or transgender. Equality came, but it was offered principally by Europe’s multi-layered democratic mechanisms, and New Labour rode that wave with confidence. In order to do that, Tony Blair had to out manoeuvre the opposition. Even his huge parliamentary majorities at times felt powerless against those who were hell-bent on keeping LGBT people as second-class citizens.

If democracy is about accountable government, where elections play a crucial but not a defining role, then democracy has come to the rescue of the beleaguered LGBT community in the UK. As the most straightforward way of holding a democratic government to account, human rights have transformed us from being grateful for anything that Westminster might do for us (or rather not do to us) to be equal bearers of rights.

Our rights are the same as everyone else’s – not bigger (or smaller), the same. We have privacy rights, so does everyone else. They can’t be vilified and targeted and nor can we. They mustn’t be discriminated against and neither must we. They might need protection and so might we. From a European perspective, it is a slow ongoing process before the European Court of Human Rights, but we are getting there. And for the UK, the whole process has been sped up because we have the Human Rights Act. As a result, all domestic courts and tribunals in the UK can guarantee our human rights, not just the court in Strasbourg. On top of this, the EU’s democratic institutions have transformed everything by ensuring our equality through regulations. And not to be outdone, out of the dying embers of the New Labour project came the Equality Act of 2010 which put LGBT people at its very heart.

Once human rights law confirmed LGBT equality, elected representatives had no choice but to follow. It was as if MPs of all parties breathed a great big sigh of relief. They no longer had to be homophobic (some of them could even come out). Prime Minister Cameron is a shining example of how our equality has enriched us all. He embraced equality with verve and has used all democratic opportunities to welcome LGBT people into the fold.

Without democratic institutions holding government to account and nudging representative democracy along, experience continues to prove that the situation of the LGBT community is dire. Jamaica, Uganda, Nigeria (all purporting to be democracies) foment LGBT persecution. The list seems endless as does the violence and the deaths. Apartheid South Africa subjugated LGBT people, but liberation also brought their equality, in the form of a Bill of Rights, a Constitution with its Court and a Commission devoted to upholding human rights for all. Nonetheless, the struggle of the LGBT community in South Africa remains, as evidenced by the violent abuse directed at lesbians because of their sexuality.

Democracy should be celebrated, but for it to be meaningful, much more than elections are required. It is about democratic institutions beyond the legislature and enforceable human rights. Churchill also had this to say about democracy: “The best argument against democracy is a five-minute conversation with the average voter.” No doubt many of us will be disappointed by the outcome of the election in May, but now that democracy and its institutions can protect human rights in the UK, I feel less daunted by the prospect that others also have the right to vote.

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Mar 27 2015

The promise of eradicating poverty through human rights

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Rafael Silva is a senior human rights lawyer at the Research Centre of the Chilean Supreme Court, and was formerly Director of Techo-Chile in the Region of Valparaiso. He holds an LLM with a specialism in Human Rights from LSE. This is the second in a series of posts Rafael is writing about human rights and global poverty.

Urban poverty in Jakarta, Indonesia (photograph: J. McIntosh)

Urban poverty in Jakarta, Indonesia (photograph: J. McIntosh)

Certainly the most relevant contribution of human rights to the struggle against poverty is the introduction of a new logic to understand and to face this problem. Replacing the language of opportunities (characteristic of neoliberal approaches) with one of rights means that development is no longer a chance that benefits exclusively those who are able to demonstrate specific abilities or to conduct particular actions. Instead, it is a universal entitlement, especially for those unable to satisfy their most basic needs, and a legal obligation for those who are in a position to respect, to protect and/or to fulfil these entitlements.

The result of this new logic is that the eradication of poverty is now a mandatory legal aim for governments and non-state actors supported by a set of national and international law instruments and principles that demand the inclusion of all, not only of those who are functional to economic growth. Nevertheless, an effective deployment of the logic of rights has been obstructed in a manner that affects its essential features while undermining its impact. Especially, the role of duty-bearers and rights-holders has not been fully developed as in other kind of legal relations, either for lack of understanding of its particularities or of willingness.

Human rights obligations have usually been understood as binding legal duties exclusively to states, leaving non-state actors out of the equation. But the current economic global order has highlighted the role of non-state actors in the delivery of welfare. When transnational companies surpass the economic power and political influence of some developing countries, it is essential to hold them accountable for the human impact of their actions. Otherwise, as it has been experienced through the financial crises of the last decade, it will create a legal vacuum where human rights are being massively violated with no one being accountable, leaving their universal enjoyment as illusory. At this point, it deserves to be mentioned that the UN has attempted to establish a framework that sanctions and compensates the negative human rights impact of business. Although, it is still a weak framework that does not establish a mandatory set of legal obligations for corporations, it is certainly a step towards the recognition of a normative rhetoric against the impunity of these entities.

On the other side, the notion of the most excluded as rights-holders of legal entitlements that can satisfy their most basic needs has the capacity to create profound social transformation. First it has the empowering potential to enhance their protagonism towards their development, and secondly, it is particularly valuable when it is capable of breaking the status quo and the position of the poor as losers of the system established by the pace and decisions adopted by ruling elites. However, the logic of rights has been distorted through the inclusion of alien elements that directly affect the quality and effectiveness of the human rights (particularly social rights) that are held by people living in poverty. For instance, the process of commodification undermines the position of the most excluded, who are no longer perceived as citizens but as customers whose development will exclusively depend on their purchasing power. This model considers distribution as a political-economic issue instead of a legal matter. This will mean that the decisions adopted in this regard are based on the ´market´ that is presented as an abstraction that is technical, anonymous and incapable to produce social harm, consequently, not subject to legal responsibility.

In a similar vein, political actors have affected the efficiency of social rights in poverty eradication establishing their conditionality. The discourse of citizenship that promotes the individual not just as a rights-holder, but also as a duty-bearer, could be convenient to enforce behaviours that are probably desirable for a given society. But, when the execution of a specific action is the condition to satisfy basic needs it could easily lead to the establishment of a framework for social control where the ruling elites employ social rights to regulate the behaviour of the poor.

The deprivation of essential attributes of social rights through commodification or conditionality impedes the empowerment of the most marginalised based on a language of rights, basically because entitlements will not be used to satisfy their basic needs, instead to enhance the market and to control their behaviour. Moreover, this approach would only foster capitalism while undermining individuals. These welfare systems (according to Marxist criticism) would only ensure that citizens are able to satisfy the demands of companies, using public expending to guarantee the production of mentally and physically suitable workers. As a consequence, through ideologically loaded social provisions, the state would aim to transform citizens into wage-labourers.

However, arguably, the most harmful deprivation of social rights attributes is the questioning on their legal enforceability. Some arguments to impede the proliferation of social rights litigation comprise the imperfect obligations they would originate, the non-democratic intrusion of courts in political affairs, and even the unlikelihood to achieve pro-poor involvement of judges. Nevertheless, it is difficult to deny the practical value of judicial strategies of social development when we focus on the needs of the poor and on effective and inclusive strategies of poverty eradication, rather than theoretical legal debates. Under a framework of entitlements and duties, it becomes fundamental to establish an accessible and efficient mechanism of judicial redress, because it is necessary to hold accountable those who violate human rights, maintaining the rule of law and democracy. But, more importantly, it has the potential to foster social change by empowering the poor, introducing human rights standards in social policies and  breaking the status quo in the distribution of resources and power.

For example, the experience on right to food litigation in Camotan (a rural council in Guatemala), the first of its kind in Latin America, has shown the different levels of impact of social rights litigation on jurisprudence and rights realisation. At a recognition level, the Guatemalan tribunal has reasserted the poor as a right holder. It has concluded that the undernourishment of children is not the result of personal failures or negligence of their parents, but the result of a violation of social rights because the state did not adopt the necessary measures to fulfil its legal obligations. At a political level, human rights standards must be taken into consideration in the design and implementation of social policies. In a settlement as Camotan, with 89 per cent of its population living in poverty, those who experience severe deprivation need strong legal and political mechanisms to break a reality that seems predestined and to call the attention of political elites to represent their interests. Irrespective of the initial reticence of the Guatemalan authorities to comply with the 22 measures ordered by the tribunal, the withdrawal of the appeals and the progressive compliance of the measures can contribute to a rights-based comprehension of poverty.

The human rights approach is certainly neither the panacea nor the definitive solution for defeating poverty. Indeed, it needs to urgently overcome the series of obstacles that have been described in this article in order to reach its full deployment and stop being more a promise than a reality. But, it is definitely a framework with the potential to create social and structural transformation and to empower the poor, guaranteeing their treatment as citizens, not as subjects of charity. Also, this approach allows the identification of duty bearers, which is particularly relevant when the persistence of poverty and high rates of inequality are definitively the result of conscious decisions adopted by political elites. Maybe, for its capacity to create change in favour of the poor, it is time to seriously take this approach into consideration, particularly when adopting the international consensus that will replace the Millennium Development Goals.

Interested in the intersection of human rights, fairness and justice with economic globalisation? The Laboratory for Advanced Research on the Global Economy (based in the Centre for the Study of Human Rights) probes the challenges posed by the complexities of the global economy and their implications for human well-being.

Posted by: Posted on by Andrew Small Tagged with: , , , , ,

Mar 25 2015

Revealing the real-world benefits of the UK’s Human Rights Act

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Natalie Threlfall is a Human Rights Associate at the British Institute of Human Rights. Her research is focused on key developments in human rights law.

img-introIf you’ve ever thought that human rights protections are more about good intentions than practical benefit, consider the following two stories.

In 2008, a 19-year-old man with epilepsy and autism jumped into a swimming pool fully clothed. He was restrained by five police officers using handcuffs and leg restraints and was bundled into a police van. The man relied on the UK’s Human Rights Act 1998 (HRA) to challenge this treatment, and the Court found that the police had breached his right to liberty and his right not to be treated in an inhuman and degrading way.

The HRA is also important in everyday situations that never go near the courtrooms. For example, Jenny*, a voluntary patient in hospital, was told she couldn’t leave the ward, as she was “not well enough”. Jenny’s advocate argued that not allowing her to leave voluntarily breached her right to liberty protected in Article 5 of the HRA. After discussions with the Ward Manager, Jenny was allowed to leave the ward – initially accompanied, then unaccompanied – and was perfectly safe.

These are just two stories. There are countless others, which you can read here. These stories show how important the HRA is in everyday situations that don’t reach the courtroom and these situations lie at the heart of the work carried out by the British Institute of Human Rights (BIHR). The HRA helps to shape our experiences with those who hold power, and it provides the rule book for our democracy. However, this important role is rarely mentioned and public commentary tends to be dominated by misreported untruths about human rights. As the 2015 General Election approaches, this negative commentary will unfortunately fuel and reinforce the loud voices calling to scrap the HRA.

Given the recent climate of confusion about the HRA, it is worth noting how it can help real people achieve real outcomes. Firstly, the HRA puts a legal duty on all public authorities – including central and local government, the police, social services, NHS organisations, and state schools – to respect and protect human rights in their decisions and actions. Secondly, the HRA enables those who think officials have failed in this duty to seek a judicial remedy. Thirdly, the HRA requires all other laws and policies to be developed or applied in ways that take account of our human rights.

So, even if you think human rights laws will never have an impact in your life, they most likely already have.

This month, in an attempt to restore some balance to the debate surrounding human rights, the British Institute for Human Rights has launched a new campaign: March for Human Rights. Through the campaign, BIHR is asking people to tell us why they’re “Alright With Human Rights”. There has been a great response, with a wide range of people sharing their reasons for being Alright With Human Rights. One supporter, Rob, tweeted “#ImAlrightWithHumanRights as they are blind to class, wealth, gender, orientation, race and religion and help us safeguard life and liberty.” Chloe wrote: “#ImAlrightWithHumanRights because when protected, respected and fulfilled, they create an environment which enables human flourishing.”

To accompany this social media campaign, BIHR is also running a series of events called “Human Rights Beneath the Headlines”. At these events, we scrutinise recent news stories on human rights and check the facts to see if the whole story has been reported. Audience members can submit questions in advance about headlines or stories they’ve read, and can participate in discussions on the night.

Through our March for Human Rights campaign, we are providing a much needed space for people who are alright with human rights to speak up and join together and to find out more about human rights. Human rights can and should be a powerful source of unity – not of division.

The next “Human Rights Beneath the Headlines” event in London is due to take place on 29 April 2015. If you’d like to participate, book your free place here.

You can join the BIHR campaign by downloading this flier, and posting why #ImAlrightWithHumanRights on social media.

*Name changed to protect anonymity.

Posted by: Posted on by Andrew Small Tagged with: , , , , ,

Mar 18 2015

Why We Must Talk About FGM Today

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Lyndsey Jefferson is a graduate of the LSE MSc Human Rights programme (2012-2013). She is an activist for women and girls’ rights currently working for The Girl Generation. She also previously worked as a researcher in the UK Parliament. You can follow her on twitter @lyndseyj. This article originally appeared in Standard Issue.

Caroline Crawford and Lyndsey Jefferson campaigning for The Girl Generation

Female Genital Mutilation (FGM) is not an easy subject to talk about. The taboo of discussing women’s genitals exists in every culture, and it can be difficult to engage with an issue that might feel far removed from one’s own individual experiences. However, each and every one of us must stop living under the illusion that FGM is not our issue.

According to the United Nations, one out of every three women in the world will personally experience physical or sexual violence. That’s one billion women. It is important to consider FGM as an expression of extreme discrimination and Violence Against Women and Girls (VAWG), as the UN has already done with the 2012 resolution calling for a worldwide ban on FGM. It is also important to remember that VAWG, including FGM, are international problems that transcend cultural, religious, and economic boundaries.

FGM refers to the partial or total removal of the female genitals for non-medical reasons, with the goal of controlling a woman’s sexuality. It is usually carried out on very young girls between infancy and the age of 15. FGM is practiced in 29 countries in Africa, Asia, and the Middle East, and due to migration it is also happening in Europe, North America, and Australia. The World Health Organisation has estimated that between 100 and 140 million women worldwide are currently living with the harmful effects of this practice. FGM can cause severe pain, bleeding, problems urinating and menstruating, cysts, infections, infertility, complications in childbirth, and sometimes death. The psychological effects of FGM are also severe and can cause post-traumatic stress and depression. Another study by UNICEF (pdf) found that over the next decade, 30 million more girls will be at risk. In the UK alone, over 20,000 girls under the age of 15 risk undergoing FGM each year. It’s time to start talking.

While culture and tradition are often used to justify oppressive practices, there is no justification for violating the human rights of a child. FGM is erroneously linked to religion, but it is not particular to any faith, and predates both Christianity and Islam. Here in Britain, the fear of being politically incorrect has severely undermined efforts to end FGM in the UK. FGM has been illegal in the UK since 1985, but there have yet to be any convictions. Campaigning against FGM  is not cultural imperialism – ending this harmful practice is a human rights issue. Using the right language is also crucial: FGM is an act of violence against women and girls. Full stop. We would not accept a practice of cutting off a girl’s arm for culture, so how can we be silent about FGM?

By starting an open and honest discussion about FGM, we can create an environment in which more people are comfortable talking about sexual violence. FGM is shrouded in secrecy and in the affected communities everyone plays a role upholding this practice. Women who speak out against FGM risk a strong backlash, and uncut women are often stigmatised and ostracised. This is why it is absolutely vital that women and girls feel empowered and confident to talk about FGM in order to end the cycle of shame that drives the practice underground.

FGM is one of the most important human rights issues of our time because it goes hand-in-hand with other gender equality issues, including child, early, and forced marriage (CEFM), honour-based violence, and girls’ education. Talking about FGM opens up doors to wider discussions and can be a catalyst for change. The survivors will lead the way to ending this practice, and it is our duty to listen to their stories, and be humble and ready to learn. Everyone has a part to play in making a world that is safe for girls.

We need to push ourselves to take a stand, even though it may not always be easy. The rights of girls and women are more important than feeling comfortable. As women, as men, as parents, teachers, lawyers, police officers, health professionals, and as human rights advocates – FGM is everybody’s business.

To learn more about The Girl Generation’s campaign to end FGM in one generation visit www.thegirlgeneration.org or follow them on Twitter at @TheGirlGen.

Posted by: Posted on by Andrew Small Tagged with: , , ,

Mar 16 2015

Do African-Americans have the right to internal self-determination?

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Sarah Fuhrman is an American attorney and LLM candidate at University College London. Her research focuses on international human rights and democracy.

Protesters in Ferguson, Missouri: August 2014

Protesters in Ferguson, Missouri: August 2014 (Photograph: Jbouie/Flickr)

On August 9 2014, Michael Brown, an African-American teenager, was killed by a white police officer. Brown’s killing – and the subsequent deaths of Eric Garner, Tamir Rice, and others – ignited a firestorm in American society.

Some feel that the American legal system is broken and thus cannot address the challenges that these events have raised. Others argue that the domestic system is working perfectly, and that it has been designed to work against blacks and other minority groups. Whichever view one takes, it is clear that the legitimacy of the American legal order is being questioned, and that it is unable to provide answers to the challenges raised against it.

If the domestic legal system is not seen as one that can effect change, one must ask what other avenues are open to minorities in America. One such option is the right to self-determination. Self-determination has been poetically described as the right of a people to “decide their own destiny“; more prosaically, it ensures a people’s right to govern themselves or to participate in their own governance. Though the right has two aspects (external and internal), most scholarship has focused on whether groups have the right to external self-determination. This is most often seen in the context of decolonisation, and the benefit of its exercise is generally total secession from the parent state, or realignment with a different one.

There has been comparatively little discussion of what benefits the internal aspect of self-determination would yield. The recent protests by African-American and black communities may provide an illustration of how internal self-determination can help address challenges to a government’s legitimacy and its systematic discrimination of some groups.

Internal self-determination does not entitle a group to secession, but ensures that they are able to participate in their own governance, and that their culture is protected. The exercise of this right may mean changes for how a particular state operates, but should not cause disruption to national borders, and would be significantly less disruptive to the international community. In the Reference re Secession of Quebec case, for example, the Supreme Court of Canada found that Quebec did not have a right to external self-determination because its demands had been satisfied through internal self-determination. The Canadian government respected the Québécois culture and allowed them a large measure of self-rule; therefore in the opinion of the Court, the interests of the community – and the country – were protected.

Should African-Americans and blacks satisfy the requirements to use the right, as outlined by Kristin Henrard in her 2012 book Devising an Adequate System of Minority Protection, a number of benefits, similar to those the Québécois enjoy,  could result. Among those benefits are the legal obligations it would impose on the U.S. government; the systematic changes that it would necessitate; and the potential for renewal of the right.

International human rights obligations are few and far between in America. Though the country has signed and ratified several human rights treaties, its numerous reservations to those instruments and failure to incorporate them into domestic law have rendered them essentially toothless. There are few enforcement mechanisms for the protection of rights outside of state and federal courts, which may or may not be effective.

This makes the right of self-determination’s customary international law character critically important. Customary international law is binding on all states in the international system, regardless of whether they have signed a treaty or not. This means that the US has more than a general duty of good governance; it is legally obligated to evaluate the claims of African-Americans and blacks and to work with them to address their concerns.

Protesters in cities across the country have done an excellent job starting dialogues in their communities and calling for reforms. But inspiring change at the federal level is a difficult task, and one that might be facilitated by the exercise of self-determination. The exercise of the right brings force to a group’s demands, and requires governments to cooperate with them. In America, this may mean setting federal policy that requires police forces to hire more persons of colour or to engage in more community-oriented models of policing. It could lead to the creation of quotas for minority groups in state and national governments. Even more broadly, it could require changes to criminal penalties and voter regulation. Clearly, the impact of internal self-determination could be felt at every level of society.

The right of internal self-determination is never exhausted. External self-determination is more limited: one can only secede so many times in so many years before it has negative effects on the people of a state and on the international community. Internal self-determination involves comparatively less risk. Rather than the group severing ties with the government, the two are forced into a dialogue. The group claiming the right can call the government’s attention to the problem as often as necessary until the group’s full right to participate in their own governance is realised.

The internal right of self-determination is still relatively new and there are many unanswered questions. These include how, for example, the African-American and black communities would enforce their right against the government if the government ignored them, and whether the government or the group would decide which measures to implement to help the group achieve self-determination. Despite these questions, internal self-determination is an underused but important right for groups around the world whose ability to participate in their own governance is unsecured.

The advantages of exercising the right have largely gone unexplored. But if one imagines the right being used by African-American and black communities in light of the Ferguson protests, one can see the right’s enormous potential for change. In the United States, this could mean everything from police reforms to revisions of criminal law to the dismantling of racist policies at the highest levels of government. Unlimited to paving the way to a group’s secession, internal self-determination can result in structural adjustments to existing states, without the potentially negative repercussions for the international system.

Posted by: Posted on by Andrew Small Tagged with: , , , , , ,

Mar 12 2015

International investment and sustainable development: the unrealised link

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Andrea Saldarriaga and Andrea Shemberg co-lead the Investment and Human Rights Project, an initiative of the Laboratory for Advanced Research on the Global Economy in the Centre for the Study of Human Rights at LSE.

This article was originally posted as a think piece on the Investment and Human Rights Learning Hub. It was prompted by the Project’s participation in the UNCTAD Expert Meeting on “The Transformation of the International Investment Agreement Regime” in Geneva on 25-27 February 2015. 

protesters with banners opposing TTIP

London, 12 July 2014

There is increasing momentum worldwide to reform International Investment Agreements (IIAs) and Investor State Dispute Settlement (ISDS) driven by criticisms and concerns from governments, civil society organisations, academics, and more recently, the arbitration community itself. This past year unprecedented public protests regarding the negotiation of an international investment agreement swept across Europe, echoing concerns voiced in Latin America, Africa and Asia.

Successful reform requires a careful assessment of the issues at the core of the criticisms being expressed. Some criticisms challenge what they call the ‘imbalance’ of rights and duties for investors contained in IIAs and in ISDS. Others reflect concerns about the apparent challenge that IIAs and ISDS pose to some of the foundations of what the UN and other authorities promulgate as precepts of good governance, such as transparency and accountability. Yet much of the criticism levelled against IIAs and ISDS also reflect wider disappointments and frustrations about what international investment is delivering (or failing to deliver). While international investment creates expectations for improved prosperity and standards of living, in many contexts it has failed to deliver on this front and has also resulted in negative impacts on people and the environment.

These same frustrations have underpinned a range of key policy discussions at the international level over the last decade, including in the areas of environment, taxation, corruption and business and human rights. Indeed, John Ruggie the former Special Representative of the UN Secretary-General for Business and Human Rights, pointed extensively to international investment as one key area where States and businesses need to better ensure the protection of and respect for human rights.

Thus, we believe that the crisis we are witnessing is not simply a loss of legitimacy for IIAs and ISDS. Instead it is a more profound crisis reflecting the failure of international organisations, institutions, businesses, governments and others to create policies, rules, practices and norms that ensure that international investment supports environmental, social and economic goals, while reinforcing principles of good governance. We can identify in this crisis an unrealised expectation that international investment should support the values that we now often identify as sustainable development.

Accordingly, overcoming this legitimacy crisis requires more than tweaking IIAs and introducing procedural reforms of ISDS. A broader stance to reform is needed, and it should begin by reinforcing the growing consensus around the supportive role that international investment should play with respect to sustainable development. The current negotiations of the Sustainable Development Goals appear to be pointing in this direction. Legitimacy can then be restored if this shared understanding is embedded in the very purpose and substance of the policies, rules, practices and norms that govern international investment.

What does this mean for reforming IIAs and ISDS specifically? The starting place must be an examination of the values embodied in the purpose and substance of these instruments. They came about to promote and protect international investment, providing an alternative to gunboat diplomacy. The tools promote investment by protecting against the single threat of host-State interference. The key to investment promotion and protection is contained in a fairly standard set of broad legal safeguards for investors to use against host-State governments.  The structure and substance of these instruments largely embody the values of a time when the dominant world view was that international investment necessarily resulted in economic growth, that economic growth alone secured development, and that corporations had no other purpose but that of making profits. The institutions and practices that grew up around these tools similarly reflect these values. These values and the practices and instruments that adhere to them are not aligned to what we now know to be true about achieving sustainable development.

Today we know that profitable international investment does not necessarily drive economic growth in host States, and we know that economic growth does not necessarily result in development, especially when it is achieved at the cost of people and the environment. Since 2011 we have an international consensus that companies have a responsibility to respect human rights in all of their activities and in every country where they operate. Moreover, the current body research provides inconclusive evidence as to whether IIAs are a useful tool for increasing international investment flows, and institutions like the OECD are now warning States about the financial, reputational and political risks of signing IIAs, especially in light of these dubious benefits.

These observations beg a number of questions.

  • If we have a shared understanding that international investment should support sustainable development, what does this mean for the shape of these tools? Is it possible for the tools to remain largely as we know them today but embody new values that underpin sustainable development? Or, on the contrary, do we need an entirely new design?
  • There is growing evidence that in addition to managing political risk, the management of social and environmental risks is key to the success of an investment. How does this understanding shape our ideas about what ‘promotion and protection’ could mean? How should the need to reduce negative impacts on people and the environment shape the design of international investment tools?
  • IIAs and ISDS were meant in part to serve the interests of host States by helping them attract international investment to drive development. Given what we know now about IIAs, international investment flows and resulting development, what does this imply for how these tools can better serve host States’ interests in achieving sustainable development? Moreover, how can these tools respond to the varying development needs of host States over time?

These are just some of the fundamental questions that need to be addressed if there is to be a meaningful reform of IIAs and ISDS.  At the Investment and Human Rights Project we are working to catalyse research and thinking around these ideas. 

 

Visit the Investment and Human Rights Learning Hub to explore the connections between investment and human rights, find relevant resources in the toolboxes, watch learning videos and read expert articles on a range of investment and human rights themes.

Posted by: Posted on by Zoe Gillard Tagged with: , , ,