Oct 9 2014

No monkeying around: animals can and will have human rights

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Alasdair Cochrane is a Lecturer in Political Theory at University of Sheffield. His main research interests include: contemporary political theory, rights theory, human rights, environmental ethics, animal ethics and bioethics. Between 2007 and 2011 Alasdair Cochrane was Fellow and then Lecturer in the Centre for the Study of Human Rights at LSE. This article originally appeared in The Conversation.

Get with the programme, humans (Eric Kilby CC-BY-SA)

Get with the programme, humans (Eric Kilby CC-BY-SA)

A US appeals court is currently hearing the case of a chimpanzee named Tommy and is to decide if he has the right to bodily integrity and liberty, just like a person. The case, brought by the Nonhuman Rights Project, which is concerned about Tommy’s living conditions, is hugely significant.

The questions debated in this New York court have implications beyond the question of whether former circus animal Tommy should be moved from the shed in which he is held captive to a chimp sanctuary with conditions more conducive to his well-being. What is really being considered is whether human rights can transcend the species divide.

At first, this question might seem extremely odd. After all, isn’t the very point of human rights that they belong only to humans? Surely the clue is in the name. But names can limit our moral imaginations, often with terrible results. Before the idea of human rights was established in the aftermath of the horrors of World War II, there was the older idea of the rights of man. When it was argued that these rights excluded half the human population, defenders of the status quo pointed out that the clue was in the name.

In the same way, the question of whether human rights can transcend the species divide is simply a way of asking who we include when we talk about basic rights. Nobody now regards the old limits of sex, race, nationality, religion and property ownership as justifiable reasons for excluding others from basic rights. But is species?

Traditionally, the justification for reserving a special class of basic protections exclusively for humans was based on religious grounds. The argument went like this: “We humans alone possess souls, so we alone merit the special rights that God has granted us.” But in contemporary societies that are marked by religious pluralism and atheism this argument is no longer viable.

More common contemporary arguments for keeping our privileged political and legal status are based on our cognitive complexity. But this justification has been convincingly challenged too. The cognitive abilities of other animals, such as chimpanzees, are now much better understood and a range of skills thought exclusive to humans, such as tool and language use, have been witnessed in chimps and other animals.

It is also a simple fact that not all human beings – such as young infants and the seriously mentally disabled – possess the advanced capacities that are thought to establish these basic rights. It is precisely these vulnerable individuals who are considered to be most worthy of the special protections that basic rights offer, yet we don’t extend them to animals.

Many argue that we need a special class of rights that are exclusive to the human species simply because we have different needs and interests to other animals. It would, for example, be absurd to extend the right to a fair trial or the right to marry to other animals. And of course they are right to argue that. But this point ignores that it would be absurd to extend such rights to many human beings too. Human babies do not need the right to marry and no one would suggest they would. Human rights are differentiated, with different groups of humans often possessing quite different basic rights. There seems no obvious reason why this practice should not also extend beyond human beings.

Critics of the Tommy case would warn that we need to draw the line somewhere. Once we cross the species divide and grant basic rights to certain animals, what is to stop us awarding them to plants, rocks and electricity pylons? Perhaps not much. And indeed, Ecuador and Bolivia have already recognised the rights of Mother Nature in their constitutions.

I share the common view among human rights theorists and practitioners that basic rights are about protecting an individual’s well-being.  And to have well-being is not merely to benefit from certain goods, but also to experience the benefits of those goods. On this view, then, basic rights should not be extended to all things, but certainly should be extended all other animals who possess conscious life.

A decision on Tommy’s status is due in the next few weeks but whatever the outcome, it is clear that more cases and more decisions are coming. It is only a matter of time until the species sectarianism of human rights is overturned and becomes as anachronistic as the rights of man.

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

Oct 8 2014

Access to Remedy: an International Tribunal for Business and Human Rights?

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Hilary Stauffer is a Visiting Fellow at LSE’s Centre for the Study of Human Rights. She is an international lawyer with extensive experience working on projects in the U.S., Europe, Africa, and Asia. Her specialties include International Law, Rule of Law, Human Rights, Humanitarian Affairs and Diplomacy.

"Miners at Work Potosi" by Christophe Meneboeuf

“Miners at Work Potosi” by Christophe Meneboeuf

On 29 September 2014, global law firm Clifford Chance, Notre Dame Law School and the Business and Human Rights Resource Centre co-hosted a panel discussion to examine the possibility of developing an International Arbitration Tribunal on Business and Human Rights.  The proposal was put forward by Lawyers for Better Business (L4BB), an organisation which advocates for increased corporate social responsibility, and the discussion was the latest in a series of consultation exercises L4BB is undertaking to probe the strengths and weaknesses in its proposal.

Attendees were comprised of business and human rights advocates, academics, lawyers and NGOs activists. It was a full house, which is not surprising given that interest in this field is increasing at an exponential rate (reflected, for example, by the abundant resources provided by LSE’s own Investment and Human Rights project).  The discussion was wide-ranging and spirited, and no dominant consensus emerged on any issues. Given the diversity of attendees, there were numerous competing views put forward for further consideration, which will be incorporated into future drafts of L4BB’s proposal.

Dialogues such as these are a vitally important part of the maturation of the business and human rights debate, which for many years languished as a neglected off-shoot of corporate social responsibility.  From its origins in toothless ‘Environment, Health & Safety’ policies that companies proliferated in the late 1990s, business and human rights concerns first turned to fair labour practices and supply chain management—issues which remain at the forefront of many NGO activities. However, since the promulgation of the United Nations’ Guiding Principles on Business and Human Rights and their subsequent unanimous endorsement by the Human Rights Council in 2011, the business and human rights field has become the new Wild West of corporate social responsibility, with several competing initiatives angling for prominence. This chaotic atmosphere was reinforced in June 2014 by the creation of an ‘inter-governmental working group’ under the auspices of the UN to explore the development of a binding treaty ‘to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.’

The Guiding Principles have three main pillars: the State duty to protect human rights, the corporate responsibility to respect human rights, and access to remedy for victims of human rights abuse.  All of these concepts are still in their infancy, at least with regard to business enterprises.  Nevertheless, it is the concept of ‘access to remedy’ that many observers find the most intriguing, and it is precisely this concept that the proposed International Arbitration Tribunal would address. At its core, the proposal asks ‘how do we bring multinationals to the table?  Would they be more likely to take part in a civil process where the outcome could be reasonably predicted’? Seeking, perhaps, to avoid the litigious naming-and-shaming techniques that have been employed by NGOs in recent years with varying degrees of success, the answer appears to be: ‘maybe’.

The proposed Tribunal is grounded in the alternative dispute resolution world of arbitration and mediation.  Criminal courts are generally not competent to regulate human right abuses, as the remedy for such violations is almost always financial restitution as opposed to criminal sanctions. Civil courts are thus better situated to adjudicate such claims, but may have to contend with severe backlogs, judges and lawyers unfamiliar with human rights law, or questions of extraterritorial jurisdiction. It is this last point which presents a significant stumbling block: human rights abuses committed by multinational corporations often take place in developing countries, whose judicial systems may be under-developed, under-resourced and ill-suited to hear such claims. However, the hurdles to bring such cases in courts in Europe and the United States are significant, both logistically and jurisdictionally. Thus, victims are left with no real recourse.

The International Arbitration Tribunal for Business and Human Rights could provide a useful alternative forum in which to address these issues. Housed in a neutral location and staffed by experienced negotiators, participants would voluntarily consent to avail themselves of its services, thus nominally lessening the adversarial nature of the proceedings.  The Tribunal could introduce some much sought-after certainty in the adjudication of human rights violations: disputants would know in advance what the catalogue of potential claims were, and therefore what the possible penalties could be, all of which might induce multinationals to embrace a process that avoided the ambiguous outcome of a court case.

Nonetheless, this rosy outlook may be overly optimistic. Panel participants at the panel event identified several potential weaknesses with the draft proposal as it currently stands, which L4BB will have to address in subsequent drafts. Foremost in many minds was the source of law the Tribunal would use in making its decisions—international human rights law is not an option, because its obligations attach to State parties, not individuals or corporations. (At present, the Tribunal’s proponents suggest that national tort laws may be the best option.) Two panellists debated the merits of mediation versus arbitration: the former process is conciliatory in nature, the latter imposes a quasi-judicial ruling.  Several attendees questioned whether either corporations or victims would have an incentive to participate. NGOs in particular were concerned about the potential transparency of any proceedings, but corporate litigators who were present noted that arbitration hearings are usually confidential. And underlying all other issues was the question of who would fund the Tribunal.

There are no easy answers. Business and human rights is currently very much in vogue, but providing an access to an effective remedy for victims of human rights violations remains an enduring challenge in all branches of international law. Time will tell if the proposed International Arbitration Tribunal is viable. However, in the interim, its creators should be commended for thinking of a creative alternative to the dysfunctional status quo.

Posted by: Posted on by Maria Werdine Tagged with: , ,

Sep 26 2014

Beware the Beating Drums of War

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Maria Werdine Norris @MariaWNorris is a final year PhD candidate at the London School of Economics and Political Science. She is researching the British Counterterrorism strategy and legislation, with a focus on nationalism, security and human rights.

Photograph: Chris Radburn/PA

Photograph: Chris Radburn/PA

Over ten years ago, Tony Blair spoke to Parliament on the eve of the vote on the Iraq War: “the outcome of this issue will now determine more than the future of the Iraqi people. It will determine the way Britain and the world confront the central security threat of the 21st century.”

The Iraq War has indeed determined how the UK and the world deal with the security threat of terrorism: bombs and rhetoric. Earlier this week, the United States started a bombing campaign against ISIS, the terrorist group that calls itself the Islamic State. Today, after a long debate in Parliament, the UK has decided to follow suit.

We live in times of nebulous, permanent insecurity, where we rely on the words of political leaders to tell us whether or not we are safe. Barack Obama tells us that there can be no reasoning with this brand of evil, this network of death. David Cameron says that this is about psychopathic terrorists that are trying to kill us. Senior EU officials warn that a major terrorist attack is inevitable. Michael Fallon, the Defence Secretary, cautioned that this campaign could last for years. But this is not a new campaign. It is the so called war on terror of over a decade ago. We have been here before. We have been here for a long time.

The humanitarian situation in Syria and Iraq is unsustainable. But as a justification for the latest round of military intervention, we are told of the 500 British citizens and around 3,000 Europeans  have gone to fight in Syria; we worry and speculate over the British accent of the ISIS militants appearing on YouTube. Coming as it does on the heels of a long campaign of highlighting the ISIS threat to the UK, the suspicion is that this latest round of bombs has very little to do with humanitarian aid.

Are bombs the best way to fight ISIS, let alone the best way to help the people of Syria and Iraq? It is difficult to say when we are not presented with alternatives. All we have are the words of elected officials immersed in a culture of secrecy. And just like a decade ago, there is a lack of public scrutiny on the nature of the threat. We are told that to release detailed information on the threat from ISIS would damage national security. This creates what Gareth Peirce (2012, p10) calls the dangerous circularity of national security:

“Deference is fed in part by ignorance, and ignorance is fed in turn by claims that secrecy is essential.”

This deference and ignorance in turn creates what Rosa Brooks irreverently calls a state of threatiness, where we cannot articulate why something is a threat, or offer evidence to back up our claims.

But in a ‘state of threatiness’, we remain in the dark. And the dark is a dangerous place to be if you care for human rights. In the dark, we believe in the false dichotomy constructed between liberty and security. Countless human rights violations have taken place during this war. Abu Ghraib, water-boarding, enhanced interrogation, sensory deprivation are words that should be imprinted in our minds. There are still over 100 prisoners in Guantanamo Bay, and at least 30 of them are on a hunger strike. Over a dozen of those on hunger strike have been force-fed. Over 4,000 people have been executed without a trial in Pakistan, Yemen and Somalia under the CIA Drone Programme. And after all this time, we still have not had a functioning Torture Inquiry in the UK.

All of us who care about human rights, and about the humanitarian crisis in the Middle East should be wary of inflated threats that are not subjected to scrutiny.  And we should have no doubt that the war that started so many years ago is nowhere close to ending. After eleven long years, we remain in the dark, hearing the beating drums of war, whilst our government keeps holding its finger to the dam, hoping that it won’t burst and engulf us all.

Posted by: Posted on by Maria Werdine Tagged with: , , , , , , , ,

Sep 16 2014

Irom Sharmila : The World’s longest hunger strike in World’s largest ‘democracy’

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Ravi Nitesh is an India-based human rights activist. He is the founder of Mission Bhartiyam, an organisation working in the fields of peace & harmony, human rights and environment. He is a core member of Save Sharmila Solidarity Campaign, a nation-wide campaign in support of Irom Sharmila and the repeal of AFSPA.

Irom Sharmila Chanu

Irom Sharmila Chanu

In India, the world’s largest ‘democracy’, there is an activist named Irom Sharmila Chanu (popularly known as “Iron lady of Manipur”) who has been on hunger strike since November 2nd, 2000. Her hunger strike is the longest in the world and is still continuing.

Irom Sharmila is demanding the repeal the Armed Forces Special Powers Act 1958 (AFSPA). She started her hunger strike after the ‘Malom incident’ (also known as the Malom massacre), wherein 10 people, who were waiting at bus stand in Malom, were killed in the indiscriminate firing of the Assam Rifles. Irom became so affected by this incident that she decided to go on a protest against the AFSPA which permitted this and similar such incidents.

The AFSPA is a law which grants arbitrary powers to the armed forces. It empowers the armed forces (even non-commissioned officers) to shoot on mere suspicion, to arrest without warrant, to destroy property and to enter and search under section 4. But it doesn’t stop here.

The AFSPA also provides legal impunity to the armed forces. In the case of arrests without warrant, while the normal procedure elsewhere in India is to produce the person before the magistrate within 24 hours of arrest, section 5 of the AFSPA states that ‘Any person arrested or taken in to custody under this act shall be made over to the officer in charge of the nearest police station with least possible delay, together with a report of the circumstances occasioning the arrest’. A loophole has been created by the ‘least possible delay’, wherein no time frame is mentioned thereby creating an ever-increasing list of cases of disappearance.

The AFSPA was imposed in north eastern states of India (except Sikkim) and was later extended to Jammu & Kashmir as a counter insurgency law. It was passed by parliament without much debate and in spite of the objections of a few parliamentarians who were from the concerned regions. Since then, this law has continued in the same manner and this ‘counter insurgency’ strategy has not been changed or reviewed.

The law has resulted in extra-judicial killings, rapes, torture, disappearances and fake encounters with security forces. From the local public and organisations, to national and international organizations and individuals, many have come together to oppose this law. But because of section 6 of the AFSPA, which holds that no prosecution can be allowed against security personnel without prior permission from central government, the government has not allowed a single sanction for prosecution, despite several proven examples of human rights violations.

Irom Sharmila Chanu has been on a hunger-strike to repeal this law. The Manipur government lodged a case of “attempted suicide” when she started her strike in 2000. But in all case hearings, Irom Sharmila has always maintained that she does not want to commit suicide, instead she loves life and is fighting for people. She has re-iterated several times that, “I love my life but I want justice and peace”. Under section 309, the maximum punishment awarded is of up to one year and so every year, the court release and re-arrest her for the same case. During one such release, in 2006, Sharmila went to Delhi and offered a floral tribute on the memorial of Mahatma Gandhi, the father of the nation who also chose the path of hunger-strike during the colonial period. She then resumed her strike in Delhi.

The Manipur government has kept her prisoner in a security ward of Jawaharlal Nehru Hospital, Manipur, where she is force-fed through nasogastric intubation. She has not taken even a morsel or a drop of water through her mouth for 14 years. But still in these 14 years, the government has not taken any step to talk to her.

On August 19th 2014, the Imphal court ordered the release of Irom Sharmila on the grounds that there was “no supportive evidence for attempted suicide”. Sharmila was finally released, however, the government quickly registered a fresh case and re-arrested her after two days. During the arrest, she was dragged by security personnel and dumped in a jeep.

During her hearing at New Delhi in May, I had the opportunity to meet her. It was quite surprising and inspiring to see how she was so full of positivity and hope. In spite of suppression by the government, she expressed her hope for democracy. She never became irritated and did not say anything against the government.

I also met her during the court trial when the court was adjourned for lunch. It was revealed by the nurses who had accompanied her that Sharmila had been in court since the morning but, due to delay in court proceedings, it had not been possible to feed her through the nasal tube. The court was not bothered. I felt sad to see a lady who has not eaten for 14 years waiting for the court’s lunch break to end, but it had not bothered her. During the hearing, she again re-iterated that she loves her life and is not committing suicide. The court did nothing except give her the date for the next hearing.

This has been happening for 14 years in the ‘world’s largest democracy’. Irom continues to protest against the AFSPA, the AFSPA continues to violate human rights and the Government and judiciary continues to turn its back.

Posted by: Posted on by Maria Werdine Tagged with: , , , ,

Aug 12 2014

Guilty verdicts for Khmer Rouge killers – now let Cambodia’s wounds heal

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UN Photo/John Isaac. www.unmultimedia.org/photo/

UN Photo/John Isaac. www.unmultimedia.org/photo/

Peter Manning is a Fellow at the London School of Economics. His doctoral research focused on the relationship between the Khmer Rouge Trials and memory in Cambodia. Peter is a member of the LSE Centre for the Study of Human Rights research group Atrocity, Suffering and Human Rights and co-curated the LSE Human Rights Centre display of the ‘Reflections of the Khmer Rouge’ exhibition (original exhibition by DC-Cam). In 2008/9 Peter was appointed Visiting Research Fellow at the Centre for Social Development, Phnom Penh. This article originally appeared on The Conversation.

More than 40 years after the Year Zero horror of Cambodia’s Killing Fields, two of the most senior Khmer Rouge leaders have been found guilty of crimes against humanity and sentenced to life imprisonment.

Khieu Samphan, 83, the former Khmer Rouge head of state, and Nuon Chea, 88, a leading party ideologue, were prosecuted in the Extraordinary Chambers in the Courts of Cambodia (ECCC) for crimes committed under the “Democratic Kampuchea” regime, under which 1.7m people died of starvation, disease or were executed between 1975 and 1979.

The verdicts represent a moment of historic reckoning with Cambodia’s tragic past and are a significant landmark in the work of the troubled ECCC. Victims’ groups recognised by the ECCC have met the sentences with broad approval and the verdicts will undoubtedly contribute to some sense of accountability among those Cambodians who remain keen to see former Khmer Rouge figures prosecuted.

Khieu Samphan

Khieu Samphan: crimes against humanity

Mini trials

Despite the conclusion of this landmark trial, it is worth offering some cautionary reflections on this milestone. The guilty verdicts offered today are the outcome of proceedings that were increasingly winnowed and hastened in order to work as a “mini” trial.

In 2013, with one eye on the ailing health of defendants, the ECCC began a process of expediting its prosecutions against former leaders by breaking proceedings into more manageable “mini” cases.

Each of these will focus on a specific event or site – and today’s guilty verdicts in case 002/01 are for crimes against humanity perpetrated during the evacuation of Phnom Penh in 1975 only. They therefore reflect and acknowledge only a small part of Cambodia’s experiences of the Khmer Rouge.

Genocide charge

The pair will face the hugely significant charge of genocide in the next “mini” trial as the ECCC starts case 002/02 later this year. Yet the poor health of the defendants means that the next set of prosecutions may not be completed.

The failure to do so would mean that the longstanding and thorny question of genocide recognition in Cambodia goes unanswered. This would be a blow for many Cambodians given the historic reluctance of the international community to recognise genocide in Cambodia.

Moreover, the specific experiences and fate of some minority groups under the Khmer Rouge, such as the Muslim Chams and ethnic Vietnamese, would not be acknowledged as an important part of this tragic story. The likelihood that the ECCC will offer a partial and incomplete picture of the atrocities of the Khmer Rouge seems at odds with claims that the court can act to consolidate a historical record of Cambodia’s atrocities, or “set the record straight”.

There are further sobering issues to bear in mind. The first relates to the mandate and framing of the ECCC prosecutions. The ECCC can and will only prosecute “senior leaders” and most responsible persons.

The roles of large numbers of lower-level Khmer Rouge perpetrators, although often implicated during the ECCC proceedings, will go largely unexamined.

Nuon Chea

Nuon Chea: brother number two

Still hurting

It is important to remind ourselves that such lower-level perpetrators still live with and among victims. Many lower-level Khmer Rouge also lost friends and relatives to the internal purges of the Democratic Kampuchea regime and during the subsequent years of protracted civil war in Cambodia.

There are outstanding questions concerning reconciliation within Cambodian communities and we still need to better understand exactly how former perpetrators of atrocity have come to live in relative harmony in Cambodian society today. These are questions that the ECCC cannot attend to.

A final cautionary point concerns the relative indifference and apathy of many Cambodians toward the ECCC. Longstanding mistrust toward Cambodia’s judicial institutions, frustrations about the costs and delays with the court process, and the failure of the ECCC to properly account for the roles of various international actors in Cambodia’s history of political violence has led to many Cambodians losing interest in the ECCC.

Many in Cambodia’s human rights circles are also reluctant to recognise the legitimacy of a basic desire in many sections of Cambodian society to leave the past where it is.

Thinking about the rulings in the wider context of prosecutions for the gravest international crimes, it was inconceivable that there could have been anything other than guilty verdicts. It is worth reminding ourselves that all international criminal proceedings will always be symbolic and incomplete. For all its limitations – limitations that we should be at pains to remind ourselves of – the ECCC has offered verdicts today that will begin to help a nation draw a line under a terrible period in its history.

Posted by: Posted on by Bernard Keenan Tagged with: , , ,

Aug 1 2014

Steps Towards Statelessness

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Hilary Stauffer is a Visiting Fellow at LSE’s Centre for the Study of Human Rights. She is an international lawyer with extensive experience working on projects in the U.S., Europe, Africa, and Asia. Her specialties include International Law, Rule of Law, Human Rights, Humanitarian Affairs and Diplomacy.

POLITICS Passport 1On 28 July 2014, one of the more controversial provisions of the United Kingdom’s new Immigration Act came into force: the power to deprive naturalised British citizens of their passport, even if doing so would make them technically stateless. Civil libertarians, human rights activists and even the House of Lords were all understandably alarmed at this prospect, which nonetheless managed to make its way through a belaboured legislative process to eventually become law.

The move comes amidst the Coalition Government’s larger efforts to strengthen its counter-terrorism policies in response to the perceived threat from radical Islam, but the impetus for this particular amendment to the nation’s immigration laws appears to stem from a legal battle the Government lost last year. In the Al-Jedda case, the respondent—a native-born Iraqi who became a naturalised British citizen—was captured by US forces in Iraq in 2004 on suspicion of terrorist activities. He was eventually transferred to the custody of British forces in Iraq and held for three years, although never charged. Shortly before his release from British custody in 2007, his British citizenship was revoked.

Mr Al-Jedda eventually moved to Turkey, where he remains. His case became cause for controversy when he appealed against the deprivation order, arguing that the revocation of his British passport had rendered him stateless, as he had lost his Iraqi nationality upon become a naturalised citizen of the United Kingdom. The Home Office responded that because he would have subsequently been able to ‘regain’ Iraqi citizenship (and eventually did), he was not ‘technically’ stateless, and therefore the point was moot.

The resulting series of appeals was litigated all the way to the Supreme Court, who decided in Mr Al-Jedda’s favour in October 2013, ruling that the British Nationality Act of 1981 was fairly unambiguous on this issue when it stated that ‘[t]he Secretary of State may not make an order [to deprive a person of citizenship status] if he is satisfied that the order would make a person stateless’. Whatever other contributing factors may exist (including, for example, the possibility of whether the person in question could ‘quickly and easily re-acquire another nationality’) were of no consequence. The question, the Court said, was ‘simply whether the person holds another nationality at the date of the order depriving him of his British citizenship’.

While the introductory text for the new Immigration Act (which amends the Nationality Act) does not explicitly declare that it was drafted to address the Court’s ruling in Al-Jedda, it seems indisputable that this is precisely its purpose. Section 66 of the Immigration Act states that despite Nationality Act’s unequivocal prohibition on rendering someone stateless, the Home Secretary can go ahead and do it anyway, so long as:

  • the ‘citizen’ in question is a naturalised (rather than native-born) one;
  • the Government is ‘satisfied that the deprivation is conducive to the public good’ because the person in question has conducted himself ‘in a manner which is seriously prejudicial to the vital interests of the United Kingdom’; and
  • if there are ‘reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory’.

To allay any concerns about arbitrary deprivation of citizenship, periodic reviews of revocation orders will be carried out. Possibly undermining this check on arbitrariness is the fact that decisions to revoke citizenship can be taken in secret, if the Government feels it necessary for reasons of ‘national security’ or ‘public interest’. Moreover, such orders can be retroactively applied, meaning that in making her decision to render someone stateless, the Home Secretary can take into account allegedly troubling behaviour that took place before the new Immigration Act was in force. Ex post facto laws are frowned upon in many democracies, and in fact prohibited by the Constitution of the United States.

Another disquieting aspect of these new statelessness provisions is not listed anywhere within the text of the Act itself, but was made evident during legislative debates about the Act before its adoption: revocation of citizenship is intended to occur when the person in question is out of the country. During deliberations regarding the Act, several MPs highlighted how administratively challenging it would be to deport a person if they had been deprived of their citizenship and left stateless ‘while present in the UK’. The House of Commons and House of Lords also examined this issue in their Joint Committee on Human Rights, querying whether it was kosher to deprive someone of nationality for the sole purpose of deportation. ‘The Government’, the Committee noted, ‘made clear that it intends to exercise the new power, leaving individuals stateless, when they are abroad’. This is a simple solution to the practical considerations at hand, although obviously deeply disturbing from a moral, ethical and procedural standpoint.

The legal implications of the new law are staggering, not only from a human rights perspective, but also in regards to inter-state relations. As Oxford professor Guy Goodwin-Gill pointed out in a paper submitted to Parliament about the possible repercussions of the new Immigration Act, when a State allows a non-citizen to enter, this manifests ‘a series of legal relationships with the State of which he is a national’. Crucially, this includes the receiving State’s right to ‘terminate the non-citizen’s stay by deporting him to the State which issued his passport’. Professor Goodwin-Gill emphasised that ‘returnability’ and the State of nationality’s obligation to admit its citizens ‘are central to the passport regime’, all of which are negatively impacted if someone’s citizenship is revoked after they have left their own country and legally entered another one.

In addition to possibly causing the UK to breach its international legal obligations to other States, the statelessness provisions of the Immigration Act may cause the UK to fall foul of its human rights commitments. The International Commission of Jurists calls statelessness ‘one of the most profound and serious human rights challenges in the world today’, and notes that stateless persons are ‘faced with immense barriers to legally travel, reside, work, study or receive health care’. This makes them ‘highly vulnerable to arbitrary detention, deportation, cruel, inhuman and degrading treatment and other human rights violations’. It is a mystery why the United Kingdom, which has ratified all the major United Nations’ human rights treaties and the European Convention on Human Rights (not to mention incorporating the ECHR domestically through the Human Rights Act), would undermine a legal regime it helped to create and often calls on others to abide by.

The Immigration Act is certain to prompt a number of legal challenges, both on human rights and more procedural grounds, as it effectively creates a two-tier system of citizenship, with one tier having significantly fewer legal protections than the other. As the new provisions begin to bite and these cases begin working their way through various jurisdictions, the Government may come to regret its impetuous decision to repudiate the Supreme Court’s decision in Al-Jedda. In the meantime, all naturalised British citizens beware.

Posted by: Posted on by Sara Ulfsparre Tagged with: , , , , ,

Jul 14 2014

S.A.S. v France – the French principle of “living together” and the limits of individual human rights

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Teresa Sanader is an alumnus of the LSE MSc in Human Rights. She was an intern on the Human Rights Futures Project at the Centre for the Study of Human Rights and is currently working on a PhD thesis in constitutional law at the University of Innsbruck, Austria.

In its recent and much discussed judgment of 1 July 2014 the Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg held that the French law no. 2010-1192 of “prohibiting the concealment of one’s face in public places”, better known in the media as the so-called “French burqa-ban”, is compatible with the European Convention on Human Rights (ECHR). The applicant, a 24-year-old French citizen of Pakistani origin, who voluntarily wears the burqa and niqab according to her religious faith, culture and personal convictions, is one of the estimated 1,900 women on the French territory affected by the blanket ban on wearing the full veil in public. She based her complaint against the French law inter alia on Articles 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination) ECHR.

niqab burqa

The ECtHR’s jurisprudence on manifestation of one’s religion or belief

In the light of the ECtHR’s previous case-law the decision of S.A.S. v France is not surprising at all, as no violation of the right to manifest one’s religion or belief can be found in the Court’s jurisprudence with the sole exception of Ahmet Arslan v Turkey, where ordinary citizens belonging to a specific religious group were convicted for wearing religious garments in public and at a court hearing. All other cases concerning religious clothing in the educational environment (e.g. Dahlab v Switzerland, Leyla Şahin v Turkey, Kurtulmus v Turkey, Dogru v France, R. Singh v France) lost before the Strasbourg Court; they were either declared inadmissible or seen as justified under Article 9 (2) ECHR. Nevertheless, it was reasonable to think that the French law of 2010, expanding the prohibition of wearing a full veil from the educational environment (introduced by French law no. 2004-228) and from representatives of the state such as state school teachers to ordinary citizens in their everyday lives went too far. Even the ECtHR was aware of the similarities between Ahmet Arslan (violation of Article 9 ECHR) and the present case and was keen to distinguish the two cases on the facts: religious garments in public places were decisive in both cases, but the concealment of the face played a role only in the present case. By doing so in an arguably far-fetched way, the ECtHR happily accepted the new principle of “living together”.

The ECtHR’s cautious approach regarding Article 9 ECHR

The ECtHR has often applied a technique of avoidance when it comes to Article 9 ECHR, finding the first violation only in 1993 (Kokkinakis v Greece; until 2012 only 46 violations of Article 9 and e.g. 940 violations under Article 8 ECHR).

Moreover, the ECtHR always underlines the lack of European consensus in the Council of Europe member states regarding the relationship between state and church: the different concepts range from state-church arrangements to secularism/laïcité. For the present case it might be true that on a more abstract basis no European consensus on the significance of religion in society can be found, but I agree with the third-party interveners and the dissenting judges on the fact that – apart from France – a law of prohibiting the concealment of one’s face in public can be found only in Belgium. Thus, 45 out of 47 member states strongly point towards a clear European consensus on this matter.

Furthermore, and connected to the second point, is the ECtHR’s willingness to grant the member states a wide margin of appreciation concerning the topic of manifestation of religion in public places. This means that national legislatures are generally given discretion on how to address the question. However, the ECtHR held in X and Y v the Netherlands that the margin of appreciation might be narrow when “fundamental values and essential aspects of private life” are at stake; therefore in the burqa case, the Court should have undertaken a more careful balance. Instead of doing so, the Court refers to its supervisory role, its lack of direct democratic legitimacy and the subsidiary nature of the Convention system to national human rights protection mechanisms (see also the new developments in Protocol 15 to the ECHR) and deferred to the discretion of the French government.

Le “vivre ensemble” as a legitimate aim

The right of manifestation of one’s religion or belief is a qualified right, which can be limited by the member states if the restriction is “prescribed by law”, pursues a legitimate aim and is “necessary in a democratic society” and thus proportionate. The French Government provided two legitimate aims: public safety and the “respect for the minimum set of values of an open and democratic society”. The ECtHR held that as no evidence for a general threat to public safety was provided for by the government, an absolute ban was disproportionate to the aim pursued. However, it accepted the second legitimate aim of “living together” and subsumed it under “protection of rights and freedoms of others”. The other two explanations for the law – fostering gender equality and human dignity – were, however, rejected by the Court. Moreover, the ECtHR acknowledged the French effort of not phrasing the law in a directly discriminatory way (basing it on the religious connotation only) and it did not pay much attention to the legislative history, or the clear political intention of banning the full veil from the public realm.

The Court correctly pays attention to the French concept of laïcité – nevertheless, in my opinion a line should be drawn between forms of liberal and fundamentalist secularism: extending duties regarding religious neutrality from public officials to ordinary citizens in all public places seems highly problematic. Furthermore, the question remains how likely it is for a French citizen to meet one of the 1,900 women wearing a burqa in public and wishing so badly to communicate and socialise with them that their sense of “living together” is deeply disturbed.

vie ensemble

The dissenters, Judges Nußberger and Jäderblom, raise some well-grounded questions regarding the vague nature of the general concept of “living together”. They point out that the right to private life includes the right not to communicate, the right to remain an outsider. Moreover, they criticise the absence of an in-depth analysis of the principle of proportionality; less restrictive measures exist to pursue the legitimate aim of “living together”, such as civic education instead of a general prohibition. I especially agree on the point that a ban on wearing the full veil in public might produce counter-productive effects for women who are forced into wearing the niqab or burqa: they stay at home instead of being able to integrate themselves by means of education or employment.

Future outlook

The case of S.A.S. v France shows once more the European Court of Human Rights’ unwillingness to interfere in the highly sensitive topic of religious manifestation in public, and its willingness to grant a wide margin of appreciation to the member states; after this second Grand Chamber judgment (on education see Leyla Şahin) little hope remains that the Court will change its approach in the future.

In conclusion, the problems identified in the case raise the key question that human rights activists can never escape: is it ever possible to satisfactorily solve highly political issues by means of law, particularly by the individual human rights regime?

 

Posted by: Posted on by Bernard Keenan Tagged with: , , , , , ,

Jul 7 2014

The poverty of human rights

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Rafael I. Silva N is a student in the LLM course with a specialism in Human Rights at LSE. He is a lawyer of Universidad de Chile; and the former Director of Techo-Chile in the Region of Valparaiso. This is the first in a series of posts Rafael is writing about human rights and global poverty.

Shanty town in ManilaPoverty is a sustained and/or chronic denial of civil, political, economic, social, cultural, and development rights, according to the human rights approach. This paradigm means addressing the eradication of poverty through the recognition of the poor as individual right-holders, under the premise of their empowerment as agents of social change. However, implementation under these terms of reference has been problematic, in particular regarding inequality and the role of the poor in their own development. I argue here that in practice, rights-based approaches to poverty have not been able to overcome prevailing neoliberal thinking on development; nor existing structures that have produced poverty as an inevitable harm that many people throughout the world must suffer as “losers” of a political and economic global order imposed by elites.

When half of the world’s population owns less than 3% of the global household income, inequality is not only experienced in economic terms, it is also translated into rude differences in the realisation of individual rights. In this respect, human rights can aim to create a “safety net” for all individuals guaranteeing their enjoyment of a minimum level of rights in order to satisfy their basic needs and to ensure their freedom from want. But international human rights law remains silent regarding the “other side” of the picture: that the winners in the system have no limits on the enjoyment of their rights. Indeed, they have an over-realisation of them, being absolutely above the margins of minimum essential levels. This over-realisation directly harms the rights of the losers, thus reproducing the cycle of poverty.

Human rights legal obligations aimed towards international cooperation aim at some measure of equality, but the refusal of states to consider them as legal duties have left these aspirations firmly in the arena of “charity”. This perception has been replicated by several states in the domestic context, in that they consider the eradication of poverty as a matter of solidarity rather than a legal obligation towards citizens. This approach undermines the imagined position of the poor as right-holders, making their role that of passive observers waiting to become beneficiaries of public policies that have nothing to do with rights. Thus they are deprived from the necessary means to change their reality. Poor families face perpetuation of their position as losers in the system for generations.

The “paternalistic” approach is convenient for global elites to the extent that, with an important sector of the population marginalized, they are capable of deciding the methods utilised and the pace in eradication of poverty. They can ensure that this method neither compromises their privilege nor threatens structural reform, which would jeopardize their economic interests.

We need a more radical approach. The unequal distribution of resources and power, combined with the systematic violation of human rights of the poor, makes the adoption of measures of positive discrimination in favour of the most marginalized an urgent priority. The emerging consensus aiming to replace the Millennium Development Goals should be the moment to finally establish a revolutionary human rights approach to poverty eradication based on the recognition of a sui generis right to freedom from poverty. This should include a pro-poor special recognition of rights to non-discrimination, to participation, to redistribution of resources and power, to remedy in case of violations, and to resistance to political and economic systems that serve private interests and violate their basic rights.

If advocates of the rights approach do not recognize its weaknesses and fails to call for the necessary reforms, human rights finally will be the legitimization of an order that will continue benefiting a small minority while harming the large majority.

 

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Jul 4 2014

Alumni Interview: Catherine Hodder

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This interview is part of a series of interviews with alumni of the Centre for the Study of Human Rights at LSE. Catherine Hodder studied for an MSc in Human Rights at LSE, graduating in 2005. Interview by Nikki Edwards, current MSc Human Rights student.

Catherine HodderWhere do you work now?

I am currently the Parliamentary Adviser for the Children’s Rights Alliance for England (CRAE), which seeks the full implementation of the UN Convention on the Rights of the Child in England. CRAE coordinates the England NGO submission to the Committee on the Rights of the Child and produces an annual State of Children’s Rights in England report, charting Government progress on the Committee’s Concluding Observations.

As Parliamentary Adviser, I communicate children’s rights concerns to parliamentarians, ministers and civil servants in order to hold the government to account for its commitments under the Convention on the Rights of the Child. I draft and disseminate briefing material for debates, parliamentary questions and suggest amendments to legislation going through Parliament. I also ensure that children’s rights concerns are heard in the development of government policy and guidance.

What other work experience do you have?

Before becoming a human rights lobbyist, I worked for a Member of Parliament, gaining first-hand knowledge of the political process. During my undergraduate degree I interned with an NGO in Senegal for four months. I also gained a wide variety of skills from working with different groups of children, including young asylum-seekers. Being a member of Amnesty International opened up opportunities for me to get involved in human rights campaigning at the start of my career.

What advice would you give someone wanting to start a career in human rights?

My advice would be to make sure you have the relevant skills to complement your human rights knowledge and commitment. These skills will vary greatly depending on what sort of job you are interested in, but focusing on getting the right experience will give you the best chance of getting employed. These skills can often be gained from outside the human rights sector, so be open-minded about where you look for opportunities. In my case, I was able to gain the skills I needed to become a human rights lobbyist by working for a Member of Parliament.

What was your favourite bit of the MSc?

My favourite aspects of the MSc were the wide variety of subjects we covered (and the great people we got to hear from) as well as the law module I studied. The law course was a great opportunity to see how human rights issues are resolved in practice.

Do you think there is anything distinctive about the way LSE teaches human rights?

I think the interdisciplinary way that LSE approaches human rights is distinctive. This creates opportunities for students to look at human rights from a wide variety of perspectives and helps them understand the critiques of human rights. This is invaluable knowledge for human rights campaigning.

Are human rights universal?

Absolutely. Human rights belong to everyone, wherever they happen to be. Everyone should be treated with the dignity that human rights provide.

Do you have any pet human rights projects?

One of the human rights campaigns that I’ve been involved in is for children to be given equal protection under the law on assault. It’s a disgrace that the law still provides a “reasonable punishment” defence for common assault against children. We cannot hope to respect children as rights-bearers unless we leave behind the idea that any sort of violence against children is acceptable.

www.childrenareunbeatable.org.uk

Posted by: Posted on by Bernard Keenan

Jul 2 2014

Interview: Dulma Clark of Soul Rebel Films

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Dulma Clark is an MSc student in the Centre for the Study of Human Rights. Her film “Safina” screened at the Human Rights Watch Film Festival in London earlier this year. Fellow MSc student Lily Kendall caught up with her to find out more.

Dulma ClarkSafina is based on a true story about a girl trafficked from Ghana and sold into sexual slavery in Glasgow. The ten-minute short highlights some of the key difficulties faced by girls in their engagement with the British authorities, especially when their age is ‘undetermined’.

I met Dulma on LSE campus to find out where the story came from. “We made the film especially for a film festival in London organised by Unchosen“, Dulma tells me. Unchosen is an organization that raises awareness of trafficking and forced labour through film. Their 2013 competition was so successful that it’s set to become an annual event. “The rule was that they provided case studies and we had to pick one. We selected this one and our film made the top five.”

After a premiere in London last September it formed part of the Unchosen Roadshow, which is currently touring the UK and Ireland. It also featured in the Human Rights Watch film festival at the Ritzy cinema in Brixton earlier this year.

I asked Dulma why human trafficking appealed to her as a subject. “I’ve worked at a charitable foundation for two years now, and I did research for them on human trafficking, especially women trafficked in Eastern Europe, so I’ve been travelling to Albania and so on tracking the route of traffickers.”

It was vital to her, then, that the film authentically captured the nuanced difficulties faced by trafficked women. Unchosen’s project appealed both to her and the film’s production company, Soul Rebel Films, owned by her husband Tony Clark. “We did the first draft ourselves and hired a professional writer to look through and change things. I was there as a script supervisor to give more factual information. We wanted to show how trafficked people are treated by government officials.”

Sometimes the process of intense questioning and encounters with lots of strange faces only serves to re-victimise trafficking survivors, she tells me. “We had to work through all these stages: when they find the girl on the street; how they start tracing the story back and decide to believe or not believe whether she’s sixteen or seventeen – because that makes a big difference. If you’re underage they put you in a safer environment, they send you to social services and find a place for you to stay.”

It’s clear a lot of research has gone into the making of Safina; in only ten minutes it’s remarkable how many issues the film touches. I wasn’t surprised when Dulma told me that she spoke to lawyers and representatives from the UK Border Agency to make the dialogue feel authentic, after all, Unchosen use the winning films as educational tools. “We had so many different drafts,” she says, shaking her head, “we worked on it for so long before making the movie – that part only took two days.”

After the success of Safina, is filmmaking something she wants to pursue? “We’re looking into making a documentary about Odanadi [an anti-trafficking organisation] but we’ll see. It would be great to look into trafficking cases around the world but that would take a lot of time…”

Does she get time to sleep? “I’m on the part-time masters course. Otherwise I’d be dead by now!”

The project was clearly a labour of love for her and her husband. Before we part, I ask her what it is about filmmaking as a medium that she feels adds to the conversation about human rights issues. “With our on the one hand lazy and on the other hand extremely busy population it’s very difficult to grab their attention,” she tells me. “Film can give a strong emotional impact and reach a wide range of people within a short amount of time.”

 

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