Feb 11 2019

‘America First’ and ‘Human Rights with Chinese Characteristics’: 2019’s Biggest Ideological Challengers to the International Human Rights Framework

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Written by Johnny Patterson

Reuters

Since the fall of the Berlin Wall, human rights and liberal democratic values have had a position which verges on hegemony in global institutions such as the United Nations and the International Criminal Court. By the turn of the century, a few pariah states had rejected this consensus, but optimistic commentators perceived progress towards a flourishing world of liberal democrat states, whose order was maintained by its major patron: the USA.

Two ideologies pose a major challenge to the status quo. ‘America First’ treats human rights as a convenient instrument but does not recognise their inherent value. Meanwhile, China’s ‘human rights development path with Chinese characteristics’ is providing increasing cover for dictators who commit atrocity crimes in the international arena. This article looks to unpack how these ideologies might unwind international human rights norms.

Human Rights with Chinese Characteristics

On 6 November 2018, China’s Vice Foreign Minister Le Yucheng took his seat for China’s third Universal Periodic Review by the Human Rights Council. As the leader of China’s UPR delegation, he took the opportunity offered by his speech to promote the Chinese government’s new approach to human rights, its “human rights development path with Chinese characteristics” (Worden, 2018).

The Universal Periodic Review presents an opportunity for every United Nations member state to comment on the human rights situation of other nations, and in China’s cycle the bulk of member states took the opportunity. The most noteworthy development, and a sign of a global diplomatic shift, was the fact that praise for China’s “human rights development path” from sycophantic allies outweighed the critical comments from other observers. This is concerning given the last four years have seen an authoritarian turn in China, an unprecedented crackdown on human rights, the establishment of mass detention camps in Xinjiang, and the erosion of freedom in Hong Kong. In a press conference following the review, Assistant Foreign Minister Zhang Jun claimed that more than 120 countries supported China’s path during the review (Xinhua, 2018).

Perhaps most striking is the response of Organisation of Islamic Cooperation (OIC) countries. The evidence suggests that there are up to 1 million Uighur Muslims in camps for “re-education”. Cast in double-speak by Beijing as “vocational training centres”, these camps use the cover of the threat of terrorism to justify what is close to, if not already, the ethnic cleansing of Uighur Muslims. A 2018 Human Rights Watch report shows evidence of: “mass arbitrary detention, torture, and mistreatment of Turkic Muslims in Xinjiang and details the systemic and increasingly pervasive controls on daily life there. These rampant abuses violate fundamental rights to freedom of expression, religion, and privacy, and protections from torture and unfair trials”.

Where the OIC countries are rightly vocal about the mistreatment of Palestinian and Rohingya Muslims, here we have deafening silence, or obsequious praise. In an advanced question to China before the review, Pakistan asked: “China has made tremendous achievements in implementing the right to development. Could China share relevant experience?” (Worden, 2018)

This support reflects the fact that there is a growing bloc of ‘like-minded’ countries in the United Nations who find Western-led insistence on the universality of human rights wearying and appreciate China’s no-strings-attached approach to diplomacy. Their abundant promises of development loans through the ‘one-belt, one-road’ initiative also greases the wheels, leading world leaders to turn the other way.

Human Rights with Chinese Characteristics might be best seen as a euphemism for ‘live and let live’. Rather than being a serious attempt to embrace the Universal Declaration of Human Rights, it poses a serious threat to the integrity of the international human rights framework. The Human Rights Council is dominated by leaders with a greater affinity to China’s path than the ICCPR, and international leaders increasingly have no shame about flouting international human rights norms. The efficacy of the United Nations and the International Criminal Courts relies on these international norms carrying soft power and shame, thereby acting as a motivator for states to change their actions. If there is not a rear-guard action from proponents of liberal human rights values, it seems probable that in the twenty-first century these norms will become merely a Western value-system, rather than carrying global weight.

 

America First Diplomacy

Photo: Gage Skidmore

At a time when multilateralism and international rights norms are facing arguably their greatest challenge since the fall of the Berlin Wall, the nation which has historically most vocally backed these values is stepping away from the table. America First diplomacy has arrived at the wrong time.

When Donald Trump invited North Korean defector, Ji Seong-ho, to attend the State of the Union Address in January 2018 (Watkins, 2018), and raised concerns about crimes against humanity in his speech, there was hope in the activist community that great power tensions might shine a stronger spotlight on the atrocity crimes of the Pyongyang regime.

By June 2018, it was clear that these hopes were misplaced. With Trump and Kim Jong Un’s bromance blossoming, human rights concerns had been shelved and forgotten by the media and politicians alike. Trump was calling Kim a ‘very smart guy’, ‘a great negotiator’, and when pressed about the actions of the world’s most draconian dictator, he brushed off Kim’s regimes actions by saying ‘lots of people’ have done bad things (White, 2018).

Designed by the Master of the Deal himself, America First diplomacy uses human rights when it suits their national self-interest and ignores them otherwise. So Mike Pompeo invoked human rights to defend US Iran policy (Slavin, 2018). but when Jamal Khashoggi was murdered, the President issued a statement titled “on Standing with Saudi Arabia,” in which he devoted the first two paragraphs to attacking Iran and avoided blaming Mohammad Bin Salman (White House, 2018).

Trump’s administration rightly slammed the Chinese for placing more than 1 million Uighur in re-education camps, but has consciously avoided mentioning North Korea’s far older, more brutal and well-established prison camps when they stopped being instrumentally valuable in achieving American interests. When Trump promised to override the rule of law and intervene in the case of a Huawei executive facing fraud charges in the US, he was saying that trade deals matter more than the rule of law (Baynes, 2018). Evidently, American prosperity matters more than American values.

Although historically their policies have often been hypocritical, with realpolitik triumphing over principle, at least America’s public priority has been the promotion of liberal democratic values for the sake of global prosperity.

America First diplomacy is a departure from this. It involves a new statement of values – that American economic and geopolitical strategic interests justify overriding the rule of law and ignoring the truth. For nations sceptical of human rights, this is confirmation of everything they’ve feared. Furthermore, it is a boon for propaganda which states that human rights are merely a Western imperialist construct designed for the perpetuation of Western power.

America has long been the world’s guarantor of international human rights and the liberal democratic order. This is a position of enormous soft power, which they are in danger of losing if the current ‘America First’ line becomes entrenched. Human rights advocacy could be a casualty of these developments, as a major patron of human rights values is disengaging and in danger of losing credibility.

This is seen at the United Nations where the United States vacated their seat at the Human Rights Council on the basis that it is a “cesspool of political bias” that makes a “mockery of human rights” (Borger, 2018). There is no denying that the Human Rights Council could better protect certain rights, and that some of its members hardly have glowing rights records themselves, but American rejection of multilateralism just offers others the chance to dominate international discussion.

Conclusion

The international human rights framework has not faced a greater challenge since the fall of the Berlin Wall. The combination of America First Diplomacy and Human Rights with Chinese Characteristics pose an unprecedented threat to the viability of the international human rights framework. There has therefore never been a more important time for activists to make the case for the human rights framework. In the United States, it is vital that liberals on both sides of the political divide stand-up for American values or else risk seeing the legacy of a century of American soft-power and diplomacy lost. Elsewhere nations need to ally to defend the human rights framework together. More locally, populist economic nationalism in the America First ilk must be warded off or else risk derailing the credibility of nations which have stood for liberal values. It is vital that pro-human rights nations stand for their values. If the ideologies outlined here succeed, the international diplomacy of the twenty-first century will take on a very different tone. The international human rights framework could easily be a casualty.

 

Reference List

Baynes, C. 2018, December 12. “Meng Wenzhou: Trump could intervene to help secure China trade deal.” Independent. https://www.independent.co.uk/news/world/americas/us-politics/meng-wanzhou-huawei-arrest-trump-china-trade-war-deal-iran-sanctions-canada-court-a8679376.html

Borger, J. 2018, June 19. “US quits UN human rights council – ‘a cesspool of political bias’”. The Guardian. https://www.theguardian.com/world/2018/jun/19/us-quits-un-human-rights-council-cesspool-political-bias

Human Rights Watch. 2018. “Eradicating Ideological Viruses: China’s Campaign of Repression Against Xinjiang’s Muslims”. https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs#

Slavin, B. 2018, July 23. “Pompeo invokes human rights to defend administration’s Iran policy.” Axios. https://www.axios.com/pompeo-invokes-human-rights-to-defend-administrations-iran-policy-447ac81b-ccba-4cb5-bd18-a537fca8768a.html

Watkins, E. 2018, January 31. “North Korean defector attends State of the Union.” CNN. https://edition-m.cnn.com/2018/01/30/politics/north-korean-defector-ji-seong-ho-sotu/index.html

White, J. 2018, June 14. “Donald Trump calls Kim Jong-un ‘very smart’ as he plays down North Korean leader’s human record.” Independent.  https://www.independent.co.uk/news/world/americas/us-politics/donald-trump-kim-jong-un-very-smart-human-rights-north-korea-a8397906.html

Worden, A. 2018. “China deals another blow to the International Human Rights Framework at its UN Universal Periodic Review”. China Change. https://chinachange.org/2018/11/25/china-deals-another-blow-to-the-international-human-rights-framework-at-its-un-universal-periodic-review/

White House. 2018, November 20. “Statement from President Donald J. Trump on Standing with Saudi Arabia”. https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-standing-saudi-arabia/

Xinhua. 2018, November 10. “Human Rights Development Path with Chinese Characteristics completely correct: Chinese official.” http://www.china.org.cn/world/Off_the_Wire/2018-11/10/content_71486914.htm

Posted by: Posted on February 11, 2019 by Shakila Khan  

Feb 5 2019

Russia’s new strategy in Georgia: Creeping Occupation

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Posted in: Nationality, Politics

By Tiko Khatchvani 

Fence dividing South Ossetia from Georgian controlled territory, Photo: Monica Ellena

The past decade’s events in Georgia and then in Ukraine have exposed Russia’s attitude towards independent post-Soviet states. Unfortunately, the western response to Russian aggression in Georgia in 2008 failed to prevent a repeat of the same scenario in Ukraine six years later. In fact, the conflict between Russia and Georgia named as ‘Europe’s forgotten war’ (Harris, 2018) by media was effectively the dress rehearsal for the annexation of Ukraine’s Crimea Peninsula in 2014 (Pasha-Robinson, 2017).

About the conflict

The Russia-Georgian conflict over the regions of Abkhazia and South Ossetia goes back to 1990s, the period of the dissolution of the USSR. At the time, the Russian side actively backed the separatists but still formally recognized the two regions as integral parts of Georgia. In summer of 2008, shortly after the Bucharest summit where Georgia was promised NATO membership (NATO, 2008), the relations between Georgia and Russia became especially tense and resulted in a 5-day war, known as the ‘August war’. The military operations were terminated following the ceasefire agreement initiated by the French President, Nicolas Sarkozy, then holding the rotating European Union presidency.  Following the conflict, reportedly 30, 000 persons faced long-term displacement (UNHCR, July 2009, p. 5)

Ignoring the norms set out by International Humanitarian and Human Rights Law and the provisions of the six-point ceasefire agreement (UN Department of Political Affairs, 2014, p. 142), the Russian side occupied the South Ossetian territory, and recognised the independence of South Ossetia together with another breakaway region of Georgia – Abkhazia. The international community overwhelmingly recognizes the two territories as part of Georgia.

“The Borderisation” of occupied territories

The Russian Federation has used diverse military, political and informational tactics to further their goals in these unsettled conflicts. One of the newest methods used in Georgia is the so-called ‘borderisation’ (Kakachia, 2018) of occupied territories. ‘Creeping occupation’ (IDFI, 2015) became the unstoppable everyday reality, as Georgia with its limited resources is unable to respond to the daily annexation of its territory without aggravating the situation.  The process involved the violation of the human rights of the local population. As Amnesty International in its latest report states ‘Russian forces and de facto authorities in the breakaway regions of Abkhazia and South Ossetia continued to restrict movement across the de facto border, briefly detaining and fining dozens of people for “illegal” border crossing. The increased fencing along the administrative boundary lines continued to adversely affect the rights of local residents, including the rights to work, food and an adequate standard of living, owing to the loss of access to their orchards, pasture and farm land’ (Amnesty International, pp. 172-173). Alongside the arbitrary seizure of properties and kidnapping, the process is accompanied by grave violations include physical assaults and in few cases of killings.

The ‘demarcation’ process is mainly proceeded with the use of metal-wire fences. According to Georgian allegations, in a number of cases Russia illegally changed the occupation line further into Georgian territory. In July, 2017, they took 10 hectares near the village Bershueti, located in the heart of the country (Agenda.ge, 2017). While the attempts by the Georgian authorities to put this issue on the international agenda and call for action only succeeded in eliciting ineffective declaration of concerns by western partners, the suffering of the local population facing constant insecurity continues to be very problematic.

Human Rights abuses at the borders

Since the initiation of the demarcation process, there have been dozens of cases when Russian border forces detained the local citizens. Last year, the officers detained a high number of local Georgians near the so-called border. Sometimes the victims of arbitrary detentions are minors.  On the 30th of June 2018, the occupying side has detained a 16-year-old boy who was shepherding the cattle in the Village Chvrinisi. There was a similar incident in August when an old man in the search of firewood, was caught as well (Rustavi2, 2018). The official reason in both cases was illegal crossing of the ‘border’.

According to the report of State Security Service of Georgia, in 2017 the number of citizens illegally detained by Russia-controlled border guards at the South Ossetian occupation line was 126 (Agenda.ge (1), 2018).

With the ‘borderisation’ process, large pieces of lands in the ownership of Georgian peasants are taken one after another.  In 2016, the occupying force gave the Chilindrishvili family just five hours to harvest the barley. The permission on that action was obtained with the use of a hotline supported by the EU monitoring mission (EUMM – European Union Monitoring Mission in Georgia, 2016). Russian controlled border officers strictly supervised the harvest process and installed fences afterwards, enclosing the whole cornfield.

However, one of the most discussed cases in Georgia, which led to a period of national mourning, is the murder of Georgian former military officer Archil Tatunashvili.  35-year-old Georgian Tatunashvili died in custody, in occupied South Ossetia on February 23, 2018. His body was returned to his family for burial just a month later. An autopsy revealed that the corpse was missing several internal organs (Agenda.ge, 2018), which made it difficult to clarify the exact reason of death. However, expert judgement shows Tatunashvili sustained over 100 injuries (The Prosecutor’s Office of Georgia, 2018) indicating that he was tortured before his death. Tatunashvili’s case is part of a new inter-state application being lodged by Georgia against Russia before the European Court of Human Rights (ECHR, 2018). While the international community continues to ‘firmly support the sovereignty and territorial integrity of Georgia within its internationally recognised borders’ (Kocijancic, 2018), the above mentioned cases reveal the necessity for the immediate creation of effective international mechanisms.

 

Further Reading:

Amnesty International, Civilians in the aftermath of war; The Georgia-Russia conflict one year on, 2009

References

Agenda.ge (1). (2018, April 4). Security Service: 178 Georgians illegally detained for crossing occupation line in 2017. Retrieved from http://agenda.ge/en/news/2018/750

Agenda.ge. (2017, July 4). Creeping occupation: Russia advances 10 hectares into Georgian territory. Retrieved from http://agenda.ge/en/news/2017/1398

Agenda.ge. (2018, April 17). Lawyer says Tatunashvili’s organs were removed. Retrieved from http://agenda.ge/en/news/2018/832

Amnesty International. (n.d.). Report 2017/2018, The State of the World’s Human Rights: Georgia. Retrieved from https://www.amnesty.org/en/documents/POL10/6700/2018/En/

ECHR. (2018, August 31). Press Release: New inter-State application brought by Georgia against Russia. doi:file:///H:/New%20inter-state%20application%20brought%20by%20Georgia%20against%20Russia%20(1).pdf

EUMM – European Union Monitoring Mission in Georgia. (2016, August 26). Georgian media note successful use of the Hotline. Retrieved from https://www.eumm.eu/en/press_and_public_information/features/5602/?year=2016&month=7&print=yes

Harris, C. (2018, August 8). Europe’s forgotten war: The Georgia-Russia conflict explained a decade on. Retrieved from https://www.euronews.com/2018/08/07/europe-s-forgotten-war-the-georgia-russia-conflict-explained-a-decade-on

Human Rights Watch. (2009). Up in Flames, Humanitarian Law Violations and Civilian VIctims in the Conflict over South Ossetia. Retrieved from https://www.hrw.org/sites/default/files/reports/georgia0109web.pdf

IDFI. (2015, October 26). Creeping Occupation of Georgia Following the 2008 War. Retrieved from https://idfi.ge/en/changed-borders-of-georgia-after-occupation

Kakachia, K. (2018, April). How the West Should Respond to Russia’s “Borderization” in Georgia. Retrieved from http:/www.ponarseurasia.org/sites/default/files/policy-memos-pdf/Pepm523_Kakachia_April2018.pdf

Kocijancic, M. (2018, April 4). Statement by the Spokesperson on the ”A Step to a Better Future” Peace Initiative by the Georgian Government. Retrieved from https://eeas.europa.eu/headquarters/headquarters-homepage_en/42446/Statement%20by%20the%20Spokesperson%20on%20the%20”A20Step%20to%20a%20Better%20Future%22%20Peace%20Initiative%20by%20the%20Georgian%20Government

Larsen, J. (September 2017). Deterring Russia’s Borderization of Georgia. Georgian Institute of Politics. Retrieved from http://gip.ge/uploads/2017/09/Commentary18.pdf

NATO. (2008, April 3). Bucharest Summit Declaration issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Bucharest on 3 April 2008. Retrieved from https://www.nato.int/cps/us/natohq/official_texts_8443.htm

Pasha-Robinson, L. (2017, July 11). Russia quietly moves border hundreds of yards into occupied Georgia. Retrieved from https://www.independent.co.uk/news/world/politics/russia-georgia-border-south-ossetia-move-hundreds-yards-occupied-nato-putin-west-ukraine-a7835756.html

Rustavi2. (2018, August 28). Occupants kidnap another citizen of Georgia. Retrieved from http://web2.rustavi2.ge/en/news/112202

The Prosecutor’s Office of Georgia. (2018, June 6). The Prosecutor’s Office of Georgia has aggravated the qualification of the Archil Tatunashvili’s case. Retrieved from http://pog.gov.ge/eng/news?info_id=1674

UN Department of Political Affairs. (2014). Repertoire of the Practice of the Security Council: Supplement 2008-2009. New York: United Nations. Retrieved from https://www.oecd-ilibrary.org/docserver/865bd7f7-en.pdf?expires=1547922032&id=id&accname=ocid71015720&checksum=7FDC19A5C2C9CD5E8056FF47934E34E8

UNHCR. (July 2009). Protection of Internally Displaced Persons in Georgia: A Gap Analysis.

Posted by: Posted on February 5, 2019 by Shakila Khan  

Feb 6 2018

Racism is at the heart of Europe’s approach to asylum and immigration

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Posted in: Child rights, Colonialism, Immigration, Poverty, Refugees

By: Hsiao-Hung Pai*

Modou was shaking with anger when he called me. “Where is humanity?” he said. He was 17, from Gambia, and has been living in a camp in southern Sicily for nearly two years. He was crying for a fellow migrant, Alagiee Bobb, a 19-year-old, also from Gambia, although they’d never met. Alagiee was shot by Carmine Della Gratta, the 43-year-old manager of his camp in Gricignano d’Aversa in Casertano, 15km north of Naples.

The camp hosted 159 asylum seekers back in November and was known to be poorly equipped. There was not even heating in the winter. Alagiee was among those protesting against the living conditions for several days before the shooting, which happened during a confrontation that escalated. “He was shot in the mouth twice,” Modou said, desperately upset.

Although the manager had been arrested for attempted murder, and four migrants had since then run away from the camp, fearing that their lives were in danger, there was barely any news in the mainstream press about the shooting. Modou only heard from a friend that Alagiee had been hospitalised in Naples. The Italian local news emerged in December that Alagiee was discharged from hospital, although he still had a bullet stuck in his throat and could barely swallow fluids. According to doctors at the hospital, “it would be more dangerous for him to remove the bullet than to leave it there.”

Migrants protested in the street showing solidarity for Alagiee. Only after intervention by the police, migrants removed barricades made with rubbish and returned to the camp. But apart from the response from migrants in camps, the outside world didn’t seem to know or care. Imagine a white man being shot by the person responsible for his care not making news headlines.

I’ve found the silence deafening. It makes me think about the European perspective towards “outsiders”, i.e., people who flee wars, conflict, poverty and destruction which are consequences of imperialism and the unequal world in which we live.

Throughout my journey when researching my book Bordered Lives, I have seen, time and time again, the European apathy that stems from a hierarchy of thought where lives are valued differently according to ethnicity and where the suffering of some is seen as very much less worthy of attention.

In the middle-class liberal circles, the “refugee crisis” continues to be the media term by which everyone thinks about displaced people in the world. What underlines the mainstream “refugee crisis” narrative is the White Saviour assumption of “us” and “them”, the displaced people being the “problem” for “us in Europe” to find solutions.

This hierarchy in which lives are valued is a colonial legacy that sees the formerly colonised as the less worthy human beings, who are considered to be less deserving of a decent life. Thus, while white Europeans who migrate and live abroad are described as “expats”, those from the Global South are anything but. To keep out the unwanted, Europe establishes the distinction between “those who flee wars” and “those who want a better life”, i.e. the false distinction between refugees (“the passive, apolitical victims who are forced to move”) and “economic migrants” (who are “able to choose to move”). Both are, in the European policy mindset, alien others. The idea that people’s circumstances can either be categorised politically or economically renders them not quite like “us” (= not quite human). These are precisely the “racial assemblages” phrased by Alexander Wehelyie, a U.S. professor of African American Studies, in which humanity is disciplined and stratified into “humans, not-quite-humans, and non-humans”.

At dinner parties among liberal circles, you may hear expression of such sentiment that somehow certain people’s suffering is not sufficiently terrible to warrant demands of their rights and protection of their wellbeing. When discussing living conditions in reception camps in Europe, I’ve had white liberal friends say to me, “But that’s not really that bad,” “Well, at least they’re not living in a tent,” “But at least they’re fed.” Well, why not try to think whether you or your children could live in those conditions?

If the answer is no, then perhaps the problem is this European attitude that sees some as the undeserving Third World poor, whose suffering is seen as self-inflicted. This approach lies at the centre of Europe’s asylum and immigration policy-making and public discourse. The under-17-year-olds who were trafficked into Libya for labour exploitation and eventually escaped on a boat to Europe; The Gambian and Eritrean boys and girls who have been waiting endlessly for decisions on their future and are wasting away their adolescent years inside the reception shelters of Sicily and all over Italy; The Afghan and Iraqi youths who sleep in the streets of Paris because this capital city of one of the wealthiest countries on earth couldn’t cope with them; the Kurdish boy, and many others before and after him, who died in their attempt to cross the Channel to Britain. Where are they on your humanity ladder?

The sources for this article are based on the author’s fieldwork for her book, Bordered Lives: How Europe Fails Refugees and Migrants, published on 18 January by New Internationalist.

 

Author Bio:

Hsiao-Hung Pai is a journalist and author of Chinese Whispers: The True Story Behind Britain’s Hidden Army of Labour (2008), shortlisted for the Orwell Book Prize 2009; Scattered Sand: The Story of China’s Rural Migrants (2012), winner of the Bread and Roses Award 2013; Invisible (2013), Angry White People (2016) and Bordered Lives: How Europe Fails Refugees and Migrants (2018).

Posted by: Posted on February 6, 2018 by Heidi Elfriede El-Megrisi   Tagged with: , ,

Jan 8 2018

Russia’s New Domestic Violence Law: Incompatibility with International Legal Obligations

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Posted in: Discrimination, Gender, Law, Women's rights

*by Sathvik Chandrashekar

After several months of speculation, Russia’s controversial domestic violence bill has finally received presidential assent. Heavily defended on the ground of ‘upholding traditional family values’, it has considerably diluted sanctions on domestic violence that does not cause substantial bodily harm.

While the previous legal framework meted out imprisonment for a period of two years, the new law restricts liability for violence against relatives or children to a monetary penalty or a light sentence of 15 days in prison, if the offence does not occur for more than once a year. Acts of violence that cause  substantial bodily harm, which would require medical treatment, continue to carry criminal sanction.

Additionally, the law was given effect at a time when a sizeable number of Russia’s violent crimes are instances of violence committed within the family. This is not a recent phenomenon, as there have been previous human rights reports that have detailed Russia’s poor record with domestic violence.

I argue in this post that apart from potentially compounding the problem of widespread domestic violence, the new Bill manifestly violates Russia’s international legal obligations. To support this argument, I will examine the new legal framework in light of the Universal Declaration of Human Rights (UDHR), The International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

  • UDHR

The UDHR declares that “human rights should be protected by the rule of law” and provides for certain core entitlements, articulated in the form of fundamental human rights such as the right to life, liberty and security, that should be provided to every human being in order to ensure a dignified existence with the larger end of moving towards a better standard of life. Although the UDHR was intended to be a declaratory instrument without an obligatory character, it is now considered to be legally binding by scholars who argue that it is the most authoritative interpretation of the human rights obligations contained in the UN Charter. This proposition is evidenced by various ICJ decisions and State Practice.

The rights enshrined in the UDHR are activated and are applicable to every instance of domestic violence. I submit that any law which considerably weakens sanction against any form of domestic violence, irrespective of the impact on the victim, jeopardises the right to live with dignity and security of the individual, going against the very foundations of the UDHR and hence must not remain in force.

  • The ICCPR and the ICESR

The new regime partially complies with the obligations contained in the ICCPR, as it protects the right to life, insofar as it continues to criminalise domestic violence that causes substantial bodily harm which would require medical examination. However, the new regime allocates liability solely based on the extent of physical injury, leaving the ensuing mental trauma from such an incident virtually unaddressed. No redressal or liability regime has been put in place to address claims of mental injury. According to Article 12 of the ICESR, every State has a duty to provide for the highest attainable standard of mental health. The Bill is in violation of this requirement, as it runs counter to the obligation of progressive realisation of the right to health.

  • CEDAW and the due diligence standard

Russia has ratified the Convention on the Elimination of All Forms of Discrimination against Women. Although the Convention does not recognise domestic violence as a form of discrimination, General Recommendation No. 19, issued by the Committee on Elimination of All Forms of Discrimination against Women has recognised gendered violence to be a form of discrimination. To adjudicate whether States have fulfilled their obligation under the Convention, the above-mentioned Recommendation has devised the standard of “due diligence”. Due diligence is now used as a yardstick to measure whether a domestic legislation is effective in combatting domestic violence. The standard of due diligence identifies State Responsibility at two levels: the systemic level responsibility, i.e. the responsibility of State parties to keep effective systems and structures that can adequately address both the causes and consequences of violence against girls and women and the individual level responsibility which is the responsibility of the State parties to provide avenues for prevention, protection, punishment and reparation to each victim.

I forward two grounds to argue that the new Bill falls foul of the due diligence requirement. Firstly, it does not provide adequate protection to the victim, as it contains no provision for reducing access of the perpetrator to the victim, once there has been a conviction, such as a restraining order. Secondly, it does not provide a framework of adequate punishment and reparation. By making domestic violence an administrative offence, a conviction does not even appear on the criminal record of the perpetrator accompanied by a limited requirement to investigate the case, meaning that there are practically no consequences for such an action.

The ECHR, in Aydin v. Turkey, has on similar grounds held that Turkey did not act with due diligence. Apart from the above-mentioned requirements, the CEDAW Committee, in General Recommendation No. 28, states that State parties have an obligation to initiate criminal proceedings, where gendered discrimination constitutes the violation of other human rights such as the right to life and physical integrity.

Therefore, by allowing only a limited scope for investigation and no criminal liability, the new Bill falls foul of the due diligence requirement and is not in compliance with the CEDAW.

Conclusion

Illegality aside, the new Bill seems to be sending the wrong social message. Given that most instances of domestic violence go unreported, as they normally arise in relations of intimacy, the State, through the new Bill, seems to be saying that certain forms of violence are acceptable and inevitable. Victims could be rendered voiceless if such messages are perpetuated, through coercive power. All in all, Russia’s new move to decriminalise domestic violence is a step backwards in the protection of human rights.

 

Author: Sathvik Chandrashekar

3rd Year, ‘B’ Section

NALSAR University of Law

Posted by: Posted on January 8, 2018 by Heidi Elfriede El-Megrisi  

Dec 12 2017

Economic Will for Climate Change Action

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Posted in: Business, Environment, Politics

*By Austin Schiano

In the wake of U.S. President Donald Trump’s withdrawal from the Paris Climate Accord, I was scouring to understand how this decision would affect present and future progress in combatting climate change. After some thought, it became clear that the behavior of businesses would be key.

I found myself musing over several questions: Would this withdrawal act as a signal to affect corporate behavior on combating climate change? And, more importantly, what could we as consumers do to understand and encourage sustainability if the U.S. government was stalled on the topic?

To help get our bearings, it’s important to understand the effect of lobbying efforts in the U.S. The Internal Revenue Service defines lobbying as an attempt to influence a legislative body through communication with a member or employee of that institution or government official. In essence, lobbyists try to convince legislators to take a specific position that would help the corporation (or other entity) that is financially backing the lobbyist.

In 1995, Congress passed the Lobbying Disclosure Act that requires companies or other entities to register federal lobbyists to help ensure transparency and accountability. While attempting to protect the branches of government, U.S. representatives and the inherent value of the legislative process, the Act also provided a data source for understanding the true impact of lobbying.

In a report published in the Academy of Management Discoveries (AMD), researchers analyzed this data over time and found that corporations with high levels of greenhouse gas emissions and corporations who emitted the least greenhouse gases both spent the most money and directed lobbying efforts around climate issues. This is very important when we try to understand the forces at work when energy legislation is on the docket.

In the U.S., climate lobbying has been most active when environmental legislation has been under consideration. The AMD report showed that from 2006-2009, corporations spent over $1 billion USD on lobbying efforts surrounding the proposal of the American Clean Energy and Security Act in the House of Representatives. Spending on climate and environmental-focused lobbying has only increased since 2009. Data from the Center for Responsive Politics organized by the Senate Office for Public Records estimates that $3.9 billion USD was spent between 2009-2014 on climate and environmental lobbying. What this means is that corporations are spending large sums of money lobbying on climate issues.

The U.S. Government lobbying data set, however, does not identify whether those who lobbied were for or against a specific legislative issue. We would have to conduct a more detailed analysis of the corporations’ behavior to get a better sense of their position on the legislation.

In a brief examination of major companies, Pacific Gas and Electric (PG&E) presents a case study for their support of managing carbon emissions. The company spent an estimated $27 million USD on climate change lobbying in 2008, while also supporting a cap-and-trade system for emissions. PG&E demonstrated their commitment further by leaving the Chamber of Commerce in 2009 due to the Chamber’s fervent opposition to carbon regulation. Nike Inc. likewise resigned from the Chamber’s board of directors in 2009 for similar reasons.

So, what can we as consumers do to influence the manner in which corporations lobby? A key answer lies in shareholder resolutions, which are non-binding recommendations to the board of directors of a public corporation. These shareholder resolutions are public and filed with the U.S. Securities and Exchange Commission (SEC). If a large enough constituency of shareholders coalesce around a shareholder resolution, they can encourage further advocacy for a change of corporate policy. This is where things get interesting.

Following the 2015 United Nations Climate Change Conference, which resulted in the Paris Agreement, “the number of climate-related shareholder resolutions worldwide hit an all-time high.” Additionally, according to The Earth Institute at Columbia University, “of the 370 shareholder resolutions filed in 2016 relating to environmental and social issues in the U.S., a record 94 were related to climate change.” Shareholder resolutions are being used increasingly to bring climate issues to the forefront.

Reviewing corporate lobbying is one of the most powerful tools we consumers have to guide the private sector toward a more sustainable future. This article is the start of a critical conversation, on which our planet cannot afford to wait. Some corporations are making valiant strides toward environmental protection, but ‘some’ will not save us. We have pushed the earth to a dangerous tipping point and there will be no going back if we cross it.

References

Shear, M. (2017), “Trump Will Withdraw U.S. From Paris Climate Agreement”, https://www.nytimes.com/2017/06/01/climate/trump-paris-climate-agreement.html.

The Internal Revenue Service. (2017), “Direct and Grassroots Lobbying Defined”, https://www.irs.gov/charities-non-profits/direct-and-grass-roots-lobbying-defined.

Usman, H. (2013), “Corporate Lobbying: Can Transparency Mitigate the Risk for Investors?”, https://blogs.cfainstitute.org/investor/2013/06/27/corproate-lobbying-can-transparency-mitigate-the-risk-for-investors/.

US Congress. (1995) “Lobbying Disclosure Act of 1995”, https://lobbyingdisclosure.house.gov/lda.html.

Delmas, M, Lim, J, and Nicholas, N. (2016) “Corporate Environment Performance and Lobbying”, https://www.ioes.ucla.edu/uploads/amd20140065_rp1.pdf.

U.S. House of Representatives. (2009), “H.R.2454 – American Clean Energy and Security Act of 2009”, https://www.congress.gov/bill/111th-congress/house-bill/2454.

Delmas, M, Lim, J, and Nicholas, N. (2016) “Corporate Environment Performance and Lobbying”, https://www.ioes.ucla.edu/uploads/amd20140065_rp1.pdf.

Delmas, M. (2016) “Research: Who’s Lobbying Congress on Climate Change”, https://hbr.org/2016/10/research-whos-lobbying-congress-on-climate-change.

Delmas, M, Lim, J, and Nicholas, N. (2016) “Corporate Environment Performance and Lobbying”, https://www.ioes.ucla.edu/uploads/amd20140065_rp1.pdf.

Goldman, G, Rogerson, P. (2013)  “Assessing Trade and Business Groups’ Positions on Climate Change”, http://www.ucsusa.org/sites/default/files/legacy/assets/documents/center-for-science-and-democracy/trade-and-business-groups-climate-change.pdf.

USSIF. (2017) “Shareholder Resolutions. US SIF: The Forum for Sustainable and Responsible Investment”, http://www.ussif.org/resolutions.

Hulac, B. (2016) “Exxon Mobil Faces Showdown with Shareholders over Climate Change”, https://www.scientificamerican.com/article/exxonmobil-faces-showdown-with-shareholders-over-climate-change/.

Hapgood, H. (2016) “Shareholders Turn Up the Heat on Climate Change”, http://blogs.ei.columbia.edu/2016/10/12/shareholders-turn-up-the-heat-on-climate-change/.

Author Bio

Austin Schiano is an international political communications professional, with experience in the private sector, UN, Media and NGO space. He received his Master’s Degree in Global Affairs from NYU’s School of Professional Studies in 2015.

 

Posted by: Posted on December 12, 2017 by Heidi Elfriede El-Megrisi  

Dec 4 2017

Marriage Migration in Rural China: Daughters Have a Price Tag

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Posted in: Uncategorized

*By Jason Hung

The Chinese government launched economic reforms in 1978 which has been seen as a hallmark of urbanization among coastal areas, including Beijing, Shanghai and Guangdong. Since then, urbanization and suburbanization progress in inland China have been lagging behind. The regional gap has exacerbated the income and wealth disparities between urban and rural China.

Due to the lack of economic and cultural reforms in rural China, the conservative, rigid, male-centered patrilineal family system is deeply embedded in rural household units where virilocal marriage is popular. In other words, family property is often inherited equally among all sons. Married daughters and their descendants are no longer regarded as members of her natal families. These married women have no obligation to take care of their natal parents nor do they inherit any property from their natal families. Thus, many natal families in rural China seek opportunities to acquire “compensation” for raising a daughter. The natal parents commodify their daughters by tagging them with a “bride price”. [1] [2] Through negotiation, prospective brides’ parents would bargain, reach a consensus, and make a deal with any prospective grooms’ parents from urban areas. Once the transaction terms and conditions are mutually agreed upon, those females from rural China are “sold” to their prospective grooms for an arranged marriage in urban China, and become migrant wives. [3]

Brides’ safety and national security could be at stake

Marriage migration is a double-edged sword. On one hand, the brides’ parents are able to earn a decent amount of payment from the grooms’ families. This helps relieve the financial burden from the brides’ side, since most families in rural China are living in destitution. This arranged marriage, or shall we say an economic transaction, advances upward social mobility for rural families. On the other hand, however, both the personal safety of the brides and the national security of China could be at stake.

Since most of these rural females have no social network with individuals from urban areas, they move beyond the security network of their kinship lines once they migrate for marriage. If they encounter any difficulties, or threats, imposed by the grooms or their families, these females have no one to whom they can reach out. Rural-urban migrants often encounter substantial cultural differences in urban China, which could possibly engender conflicts between migrant women and their new families. Additionally, Lanmei Ma et al. (1995) and Tianqi Xu et al. (1992) argue that these grooms are often older and poorer men in urban areas. Some may be mentally or physically handicapped. [4] Migrant brides then become responsible for looking after their husbands – men they are unfamiliar with – for the rest of their lives. [5]

From China’s perspective, human traffickers, drug dealers and other criminals have been taking advantages from arranged marriages to transport prostitutes, drugs and other illegal belongings. The United Nations Women has enacted Article 15 and 16 of The Convention on the Elimination of All Forms of Discrimination Against Women to help control this migration flow and to prohibit any arising illegal activities. In line with the anti-arranged marriage international convention, the Chinese Communist Party has outlawed arranged marriages in the New Marriage Law (1950). Nevertheless, arranged marriages remain one of the most prevalent forms of marriage in rural China. [6] [7] By 1990, the number of marriage migrants already exceeded four million. As reported in Trends and determinants of female marriage migration in contemporary China (2010), Hu Ying et al. discovered that 12.06% of individuals in China who are married, are in fact female marriage migrants.

Calls for Border Controls and Demands for Rural-Urban Equalities in China

Marriage migration is therefore an issue that demands state intervention, since marriage migration has been used as a cover for a range of crimes, including illegal migration, sex exploitation (especially women exploitation) and human trafficking. Border controls are in demand to tackle any ‘fake marriages’ and ‘illegal marriages’. While some women and their natal families are willing to engage in ‘fake marriage’ to obtain legal residence status in urban areas, the broader social and national security concerns should override any personal, yet illegal, interests. [8] Marriage migration and ‘fake marriages’ are undesirable byproducts of rural-urban income disparity. While the government demands tightening security measures for stricter border controls, they should also prioritize suburbanization and urbanization of rural China. In doing so, the enjoyment of better social welfare systems and facilities in rural China could become an alternative, and legitimate, means for upward social mobility, rather than the practice of marriage migration.

References:

[1] Bossen, Laurel (1994), “Zhongguo nongcum funu: shime yuanyin shi tamen liuzai nongtianli? [Chinese peasant women: What caused them to stay in the field?]”, In Xingbie yu Zhongguo [Gender and China], ed. X. Li, H. Zhu and X. Dong, Beijing: Sanlian Shudian, pp. 128-54.

[2] Honig, Emily and Hershatter, Gail (1988), “Marriage”, In Personal Voices: Chinese Women in the 1980s, ed. E. Honig and G. Hershatter, Stanford, CA: Stanford University Press, pp. 137-66.

[3] Wang, Jianmin and Hu, Qi (1996), Zhongguo liudong renkou [China’s Floating Population], Shanghai, China: Shanghai Caijing Daxue Chubanshe, p. 287.

[4] Ma, Lanmei, Chen, Zhongmin, and Du, Guizhen (1995), ““Dui “wailaimei” hunyu guanli qingkuang de diaocha yu sikao [Investigation and contemplation of the fertility management of female immigrants]”, Renkou yanjiu [Population Research], 10 (1), pp. 56-8.

[5] Xu, Tianqi and ye, Zhendong (1992), “Zhejiang wailai nuxing renkou tanxi [Analysis of female inmigrants in Zhejiang], Renkou xuekan [Population Journal], 2, pp. 45-8.

[6] Croll, Elisabeth (1984), “The Exchange of Women and Property: Marriage in Post-Revolutionary China”, In Women and Property – Women as Property, ed. R. Hirschon, London: Croom Helm, pp. 44-61.

[7] Shen, Tan (1996), “The Process and Achievements of the Study on Marriage and Family in China”, Marriage and Family Review, 22(1-2), pp. 19-53.

[8] Humbeck, Eva (1996), “The Politics of Cultural Identity: Thai Women in Germany” In Women of the European Union: The Politics of Work and Daily Life, ed. M. D. Garcia-Ramon and J. Monk, London: Routledge, pp. 186-201.

Author Bio

Jason Hung is a final year Sociology and Quantitative Methods student at the University of Warwick. In 2017, Jason Hung was a visiting scholar at UCLA and was a research assistant at Warwick. Jason Hung also works as a featured human rights writer for Oxford Human Rights Hub, RightsViews (Columbia University) and Warwick Globalist.

Posted by: Posted on December 4, 2017 by Heidi Elfriede El-Megrisi  

Dec 4 2017

Right to Dignity, not for Manual Scavengers: The neglected state of rights of scavengers in India

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Posted in: Development, Discrimination, Health, Law, Poverty

*by Swapnil Tripathí

It was recently reported that the National Capital of India witnessed numerous deaths of sanitation workers, employed in the cleaning of sewage and drains, mainly due to lack of safety equipment. These deaths are not just restricted to New Delhi as similar deaths have been reported in other Indian states.

Manual scavenging has been termed as the worst surviving symbol of untouchability. The International Labour Organisation has described it to mainly include the removal of human excreta from public streets and dry latrines, as well as the cleaning of septic tanks, sewers and gutters. The practice, though prevalent in other parts of the world, has a predominant presence in India. The people engaged in carrying out this act are usually from lower castes, namely the Dalits. As per the Apex Court in 2014, there are over 9.6 million dry latrines that are manually emptied. The states where the practice is common are Gujarat, Madhya Pradesh, Maharashtra, Rajasthan, and Uttar Pradesh.

The issue with such work (and ensuing deaths) is that the activity of manual scavenging is prohibited by both international instruments and domestic law. International agencies such as UNICEF (as a water and sanitation issue), WHO (as a health issue), UNDP and the ILO have all criticized manual scavenging and have called for an end to the practice.

The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013 (“Act”) is a law against manual scavenging in India, prohibiting dry latrines and all kinds of manual cleaning of excrement, as well as the cleaning of gutters, sewers, and septic tanks without protective gear (§7 & §9). However, since sanitation is a state subject, the implementation of the law is state-specific. However, the act of manual scavenging is more than a state issue, it is also a human rights violation.

The Constitution of India in conforming with the international position, abolished untouchability (art.17) and also prohibited caste-based discrimination (art.15). Furthermore, it interprets the protection of human dignity as an inalienable right, and as part of the fundamental right to life. The Courts have attributed human dignity to be the most important, fundamental, inalienable and transcendental of rights. Dignity, has been interpreted to include equal treatment, respect and equal protection of law. Right to human dignity carries the status of a universally recognised right as it is endorsed by instruments such as the Universal Declaration of Human Rights (UDHR) by way of Article 1, 22 and 23.

Sadly, despite such constitutional safeguards, manual scavengers remain victims of discrimination. There are a number of reasons for this.

Firstly, as India is a federal democracy and sanitation falls within the competency of its States (Entry 6, List II, Schedule VII, Constitution of India), the implementation of the prohibition on manual scavenging rests solely within the domain of the states. Hence, no collective/nationwide action can be taken by the federal government. Secondly, the law requires that the rehabilitation of scavengers has to be carried out as per the existing schemes, even though these very schemes have not been successful in eradicating the practice in the past. Thirdly, it is not just the law but the attitude of public authorities which aggravates the plight of the scavengers. The Government has repeatedly sought an extension of the deadline to curb the problem, exhibiting its lack of commitment.

The present scheme of law therefore fails in protecting the dignity of manual scavengers. The end to manual scavenging can come not only by modernising sanitation, but by also ensuring former scavengers do not go back to it as a result of poverty or unemployment. Amendments to the current law, strict enforcement, and a change in mindset are needed.

In Safai Karamchari Andolan v. Union of India, the Supreme Court directed the government to completely abolish the practice and provide for the rehabilitation of people released from manual scavenging. However, no progress has been made. It is clear that the judiciary has been taking active steps to ensure respect for the human rights of manual scavengers, but such steps without the support of the others organs of government is to no avail.

The Ministry of Social Justice and Empowerment has recently drafted a proposal for an improved implementation of the Act. The proposal provides for revised safety standards, stricter punishments for contractors and better rehabilitation machinery for the scavengers. It is hoped that the proposal will be implemented quickly, which would not only ensure that the rights of the scavengers are protected by punishing the wrongdoers – it would also rehabilitate the scavengers both monetarily and psychologically, thereby making the basic right to dignity a reality for the manual scavengers.

References:

Author Bio

Swapnil Tripathí is a Fourth Year, Constitutional Law Hons. student at National Law University, Jodhpur (India). He takes an active interest in the subject of Constitutional Law and Jurisprudence.

This article was previously published. It is available here: http://ohrh.law.ox.ac.uk/the-dignity-and-rights-of-manual-scavengers-in-india/

Posted by: Posted on December 4, 2017 by Heidi Elfriede El-Megrisi  

Nov 22 2017

‘The Illusory Safe Haven’: Examining Bangladesh’s Position on Managing the Rohingya Refugee Crisis

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Posted in: Discrimination, Humanitarian Emergency, Law, Nationality, Refugees

*By Chandni Ghatak

In the past few months, the Indian subcontinent has witnessed a refugee problem due to alleged instances of ethnic cleansing of the Rohingya people in the Rakhine state of Myanmar. This has caused several thousand people to flee to neighbouring countries such as India and Bangladesh in seek of refuge. As usually witnessed in any crisis of this magnitude, the host countries are faced with providing an adequate amount of care and assistance for these displaced people. The Indian government awaits a decision by its Supreme Court on the legitimacy of deporting these people and refusing them the rights they are entitled to under international law as refugees. Bangladesh, however, presents a different aspect of this struggle.

With its geographical location, Bangladesh stands to be the closest and most easily accessible haven for the Rohingya. The country has witnessed more than 500,000 Rohingya enter its territory with more coming in almost every day.

While there have been reports of several Rohingya being prohibited by patrols at the borders from entering the country, those who have managed entry struggle due to the cramped spaces and limited quantities of food the camps have to offer. The Bangladeshi officials have been struggling with this sudden and large influx. Recently, as a scheme to tackle this current challenge of sustaining the over burdened camps, suggestions are being made to the Bangladeshi government to implement sterilisation programmes for the Rohingya. While this may seem an attractive offer to authorities, the appalling consequences it would have on shaping the discourse revolving the rights of refugees is frightening. The author argues that despite Bangladesh not being party to the Refugee Convention of 1951 [Convention] or its Protocol, such action could, from an international law and Constitutional law perspective, be challenged.

It is a recognised principle of refugee laws that the rights extended to refugees transcend those which merely ensure physical safety. Human rights law has expanded its ambit to ensure that these refugees may enjoy other basic freedoms which the host country grants to any other legally residing foreigner. [See Article 7 of the Refugee Convention 1951.]

The universal right to freedom from any type of arbitrary interference with one’s privacy and family is recognised in various human rights instruments, corroborating the notion that such rights are applicable to all, regardless of the underlying distinctions existing between citizens and refugees. This right stands to be violated in the current context mainly because the sterilisation programme, if implemented, would constitute an arbitrary interference not only with the privacy of the individual, but also as an extension on the collective right of the family ( i.e. husband and wife). This protection and preservation of the family as a collective unit was also a guiding principle for the UN Convention on Refugees, thereby exacerbating the grave consequences such action would entail.

Additionally, the recognition of principles of bodily privacy across jurisdictions, as well as the right of women to make their own reproductive choices in international instruments such as CEDAW etc; all demand that the State or any other force cannot interfere with a person’s sense of autonomy. Speaking from a constitutional law standpoint, Article 32 of the Constitution of Bangladesh guarantees the protection of personal liberty of any person, thereby extending its obligations even to refugees. This makes the launch of such a programme unconscionable from a domestic law perspective.

However, let us peruse the arguments from the side of the Bangladeshi Government. The strongest argument (second to its non-ratification of the Convention) to support its stance is the absence of explicit obligations in the Convention on how refugee camps are to be administered. Since the Government is not denying refugees basic amenities such as food, shelter etc; the ancillary aspects, such as the possible initiation of a sterilisation programme, could fall into the category of internal matters. However, in light of privacy being a universally accepted right, the argument does not entirely refute the assertions made against such a programme. Additionally, the duty to protect the human rights of refugees is generally absolute and not subject to the resources available to the State, barring cases of emergency.

Further, if such a programme is condoned in the international arena, it incentivises countries (possibly even India) to permit refugees within their territory not on the principle of respecting human life and dignity, but instead because of the option to manipulate policies in a manner suitable to national interests, which is what Bangladesh is trying to do.

The consequences of such actions are not limited to only the catastrophic effects it would have on the rights of the Rohingya people, but would also mark the decline of the persuasive power of the Refugee Convention. Despite countries not being party to the Convention, principles of non-refoulement and other related obligations have over the years obtained a jus cogens nature. Condoning such repressive measures fuels the decline of not only the aforementioned provisions, but also the general overriding character of international humanitarian law. While an official confirmation is still pending on the imposition of such a policy, its absence only comes as a short-lived instance of calm, rather than a permanent commitment and guarantee of a system that protects human rights.

Author Bio
Chandni Ghatak is a 4th year student at National Law University, Jodhpur. She’s currently pursuing her B.A LL.B with IPR honours, with an intent to later on build a career in litigation.

Posted by: Posted on November 22, 2017 by Heidi Elfriede El-Megrisi  

Nov 10 2017

Project Five Fifths

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Posted in: Activism, Art, Culture, Discrimination, Politics

*An interview with Kwame Sekyere

  1. Firstly, congratulations on launching Project Five Fifths. How did this organization get its start?

Thank you! Project Five Fifths has been a thought in my mind for the past couple of years. It hasn’t always been in the form that it’s currently in now, in fact, it was initially just going to be something similar to a blog, but the more I’ve developed as a person in my skills and experiences, the idea has developed with me, as well.

In terms of actually kicking off as a full-blown organization, it’s difficult to put a date, moment or specific decision on it, but I see it as more of a process of growth that started a couple of years ago.

  1. It’s an interesting name – is there a story behind it?

Yes! I’m glad you asked. Just a quick plug, I write a weekly piece on Medium that covers my thinking behind this Project, the first one came out last week and it actually addresses this question.

Okay, so the name has everything to do with the purpose of the organization, it isn’t arbitrary. In 1787 the United States Constitutional Convention brought about an agreement called the Three-Fifths Compromise. In short, enslaved African-Americans would be counted as three-fifths of a person when state populations were counted.

I’ve taken this concept and applied it to 2017, where I believe we see a diminishing of the value of people who are somewhat distant from us, whether economically, socially or even geographically.

So I see Project Five Fifths as the tool that will bridge that distance and raise the value of these people, making them five-fifths of a person.

 

  1. What do you hope to accomplish with this organization?

This is a great question. I’ve got the weird mix of being extremely optimistic and also extremely pragmatic. In practical terms, I want to create some really great media content that people will enjoy engaging with, but content that is fundamentally rooted in giving a more rounded perspective of those who are distant, sharing their stories and simply bringing us closer to them.

 

  1. Will the media content live on the Project Five Fifths website, or is there another platform to house the work?

So the Project Five Fifths website is the main hub where you can find out about everything. But each production is an individual entity, so they will grow on their own. For example, the first production, The Streets Kitchen Podcast, has its own Twitter and Soundcloud page, but everything it does is publicised by Project Five Fifths.

 

  1. What types of media will be featured in your collection (i.e. art, video, photography, etc.)? How do you plan to create and collect this work?

The type of media isn’t so much of a question for me. My main question is how sustainable each production is. I’m not really looking for one-off pieces, I’m looking to produce media content that can build and grow over time. So the type of media can vary, but it’s more about the way it’s packaged and whether it’s sustainable over time.

Because the main focus is the community being served, I try to rely on the eyes of the people in the community organizations I work with, because they are best placed to know what needs to be heard.

 

  1. What can you tell us about the rest of the team behind Project Five Fifths? What experiences and skills are you all bringing to the table?

This question is difficult to answer. In the conventional sense, this is a team of one. But I do have key collaborators, different creatives I like to work with to produce the content. George and Josh are film students that I work with on video content and Luis, who did the sketch in the Introduction video, is multitalented too. In addition, I’ve got the organizations I work with, one example being Streets Kitchen.

So there isn’t a team per se, but there are people whose talents, reach and ideas are vital. For example, it was George and Josh that convinced me to make a podcast, which then developed into The Streets Kitchen Podcast.

 

  1. You’ve just launched, but how do you think Project Five Fifths can evolve down the road?

This is probably the most perfectly timed question you’ve asked! Not only can it evolve, it will evolve and it is currently evolving as we speak. I’ll tell you a secret, when I wrote the script for the Introduction video, the Project Five Fifths I envisaged then was not the one we saw launched on October 16th.

Fundamentally, it is always going to be about making the lives of marginalized people more known. Currently it’s what I call a ‘production hub’, the strength of this is its mobility – it’s not a house but a hub, it can fill different spaces and adapt to different needs. And I guess all this adapting will lead to evolution! I aim to be clear and open with this, which is one of the reasons I write my weekly posts on Medium.

So honestly, I don’t know exactly how it will evolve, but it will and it is!

 

  1. Where can people go for more information or to reach out with ideas?

The website is projectff.co.uk. We are @Project5Fifths on all social media. People can also email on info@projectff.co.uk. I’m always on the lookout for new people and organizations to work with, so please get in contact if you have any ideas!

Author Bio
Kwame is the Founder of Project Five Fifths and is currently doing a part-time MSc in Human Rights at LSE.  You can follow his work on Twitter @KBSekyere

Posted by: Posted on November 10, 2017 by Heidi Elfriede El-Megrisi  

Oct 30 2017

India’s Rohingya Deportation Quagmire: Misplaced Nationalism or a Pragmatic Middle-ground?

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Posted in: Law, Nationality, Refugees

By Siddharth Sunil*

Around the 9th of August 2017, news first broke that the Indian Central Government had passed detailed orders directing, inter alia, the deportation of Rohingya Muslims from the country. The order was passed under Section 3(2) (c) of the Foreigners Act 1946. It was met by widespread criticism and prompted numerous sharply worded news reports, op-eds, special television segments, et al. The Central Government responded to these criticisms (which soon found an outlet through a petition filed in the Supreme Court of India) by contending that the deportation of Rohingya Muslims was justified. In its preliminary affidavit, the Government referred to the Rohingya as “potential terrorists”, owing to their belonging to the Islamic faith.

Needless to say, the affidavit irked consciences of a great number of Indians, and also sparked scathing comments from across the globe. The Government’s allegations were declared to be unsubstantiated, bigoted, incorrect, and made in bad taste. The truth is that there have been absolutely no terrorism-based arrests of Rohingya Muslims, and, save some instances of thieving and other petty crimes (which have been few and far in between), the 40,000-strong Rohingya population residing in India has had a clean record. This begs one to scrutinize the Government’s order with a fine comb, and to read between the lines.

A superficial understanding of contemporary Indian polity would reveal that the impugned order to deport the Rohingya seems to trace its roots neither to the Constitution, nor to statutes (albeit it is backed by one), but to a political ideology. Many believe that a drastic decline in religious tolerance and an increase in attacks on Muslims have characterized the three years that the incumbent government has spent at the Government. However, it is worthwhile to steer clear of these allegations for now, given that they are sans concrete proof.

The Government, in its affidavit in the Supreme Court, has claimed that the deportation of Rohingya Muslims is imperative to protect national security. Further, it has said that Article 19 of the Constitution of India (which, inter alia, provides for a fundamental right of citizens to reside anywhere in India) cannot be extended to the Rohingya Muslims, as they are not citizens of India. Apart from failing to convincingly demonstrate the exact ways in which the protection of national security is to be achieved by deporting the Rohingya Muslims, the order is further surprising, since it is antithetical to the traditional position that India has taken in this regard. India has historically been an accommodative and hospitable nation, and operated its tourism industry for several years under a Sanskrit catchphrase that when translated means “a tourist is akin to God”. By way of example, emphasis and further operational guidelines may be placed on 1991, when a massive influx of Sri Lankan Tamils into India was witnessed. They were allowed entry and granted registration as refugees. There was an implicit acknowledgement of the fact that the Tamils were not all terrorists; it is pertinent to note that it was the Tamils who formed a large part of the terrorist outfit LTTE, which was responsible for the assassination of Rajiv Gandhi, then Prime Minister of India, and thus, tensions against the Sri Lankan Tamils were justifiably at a peak. Despite this fact, the Government (then) managed to take a pragmatic stand, and refrained from branding all Tamils as terrorists. It is, thus, an important observation that no Rohingya Muslim, currently residing in India has been suspected of or convicted for any terrorist act: which lends no credible rationale to the Government’s impugned order.

It may be noted that India is not a signatory to either the 1967 Protocol or the 1951 United Nations Convention on Refugees, but it is a signatory to numerous United Nations Conventions on Human Rights, refugee matters and related issues. Therefore, it may be easy to make a positivist argument against non-refoulement (a fundamental International Law principle that forbids countries from returning asylum-seekers to countries where they would be in likely danger of persecution based on race, religion and nationality, among others) binding India.  However, India’s consistent State Practice in this regard and recent instances in which India has urged fellow nations to refrain from diluting the principle of non-refoulement ensures that, as a customary international law, non-refoulement is binding in India, regardless of whether or not India is a signatory to the relevant treaty.

An aerial shot shows thousands of new Rohingya refugee arrivals crossing the border near Anjuman Para village, Palong Khali, Bangladesh. ; As an estimated 500,000 Rohingya sought safety in Bangladesh between late-August and October 2017, UNHCR began work on an extension site next to the long-established Kutupalong refugee camp in Cox’s Bazar. Whole families, young mothers and unaccompanied minors were among those fleeing for their lives since fighting reignited in Myanmar. They came by boat or walked barefoot for days, wading through vast rice fields. They left most of their possessions behind. Large groups crossed into south-eastern Bangladesh hungry, in poor physical condition and in need of life-saving support. By mid-September, the Bangladeshi Government allocated some 2,000 acres of land on which family tents and temporary communal shelters were erected to shelter new arrivals. UNHCR site planners estimate that these will be sufficient to house 150,000 people.

 

Article 21 of the Constitution of India extends the right to life and personal liberty, unlike Article 19, to non-citizens. In a High Court judgment from an Indian state, it was observed: “the principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security”. This judgment is important in that it lays down ‘national security’ as a qualifier. This, the author submits, is a reasonable middle-ground, but there must be an efficient fact-finding mechanism to separate genuine cases affecting national security from false claims of threats to national security. The modalities of such a mechanism, however, would warrant careful consideration. The Supreme Court echoed the need of such a halfway-house (balancing of human rights with national interest) while hearing the petition filed by the Rohingya Muslims, by orally observing that a holistic hearing was in order and said that emotional arguments would not be permitted by the Court. The matter has been deferred to the 21st of November for further hearing.

It must be borne in mind that, thus far, there are no substantive Supreme Court precedents on this matter. Therefore, the onus is now on the Apex Court of India to be the conscience keeper of the Constitution of India and, above all, to demonstrate a willingness to go above and beyond for something that transcends nationalities, and to act as a guardian of human rights. The judgment will be eagerly awaited.

*Siddharth Sunil is a student of the (class of 2020) B.A., L.L.B. (Hons.) course at NALSAR University of Law, Hyderabad, India. He is avidly interested in Indian Constitutional Law, and plans to be a practicing litigator when out of law school.

Posted by: Posted on October 30, 2017 by Heidi Elfriede El-Megrisi   Tagged with: , , , ,