LSE Human Rights

By Anupriya Dhonchak

In the last year, Indian women have been speaking out about their experiences of sexual harassment and abuse more than ever before as part of the global #Metoo movement. The movement has highlighted the abject failure of the androcentric ‘neutral’ state and societal institutions, which have long provided men the monopoly over ‘objectivity’. There is growing and predictable male anxiety with the umbrella nature of the movement to not just include experiences of sexual harassment, but all that contributes to it; i.e. a systemic culture of violence inscribed on women’s bodies by mutilating their subjective experiences into a male norm. We have set women up to fail within these institutions by using a male standard as the rigid reference, thereby ‘othering’ the female. Legal feminists, such as Martha Fineman, have cautioned against such gender-neutral models, which confine reforms in their ill-considered attempts to construct a more ideal society based on ‘formal equality’. This is especially pertinent in the Indian context of glaring gender inequality. According to the latest UN Gender Inequality Index, India ranks a dismal 127^th out of 160 countries, reflecting inequality between men and women based on reproductive health, empowerment, and labour market participation.

I instantiate this through the male norm of an ideal university student, capable of meeting attendance requirements for his courses. The norm applies uniformly as a formal rule of law in India to women, and prevents them from taking university exams if they fail to fulfil minimum attendance requirements, even if such shortages are due to pregnancy. By contrast, many universities in the United Kingdom, including but not limited to LSE, UCL and University of Leeds, adopt a much more flexible and sensitive approach to ensure that female students are not disadvantaged due to maternity.

Indian University Attendance Requirements stacked against women

In India, the University Grants Commission (UGC) regulations govern attendance in universities established or recognised by the government. The Bar Council of India (BCI) Rules apply specifically to law colleges from among such universities. Minimum attendance requirements in Indian universities providing professional legal courses, to which the BCI rules apply, and non-legal courses governed by internal regulations of different universities in line with the UGC regulations, may prevent women from writing their exams or claiming their degrees. This rigid and androcentric academic framework refuses to accommodate women’s needs and distinct burdens.

It was argued by the petitioners in A. Arulin Ajitha Rani v. FTI, Tamil Nadu in 2009, that the denial of maternity leave to students, as distinct from medical leave, offends the provisions of the UN Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) and the Maternity Benefits Act, 1961. The Madras High Court dismissed the arguments holding that educational institutions stand on a different footing from companies. In the UK, similar arguments are precluded by Section 17 of the Equality Act, which expands the prohibition against maternity-based discrimination already existing in the workplace, to also include areas outside of it, including the higher education sector.

In India, a Delhi High Court decision in the 2010 case of Vandana Kandari vs. University of Delhi granted exception to two students who could not fulfil the BCI requirement of 66% attendance due to being in the advanced stages of pregnancy. However, the case was overturned by a Division Bench of the Court in 2011. The Bench held that such leniency could not be exercised in any case whatsoever. This position of the Delhi High Court has come to be regarded as settled law in subsequent decisions. The Delhi High Court in 2011 in Fahad Hassan vs Jamia Milia Islamia University, chided such women as ‘incorrigible students’ while holding that pregnancy could not entitle them any leniency in attendance requirements as it is not an unexpected medical condition based on the Division Bench decision in Vandana Kandari. The Kerala High Court in Jasmine VG v. Kannur University in 2016 prohibited a pregnant woman from writing her B.Ed. examination as she fell short of the minimum 75% attendance requirement as per course regulation. Similarly, the Delhi High Court in  Ankita Meena v. University of Delhi in 2018 barred a second year law student from writing her semester examination for falling short of the minimum 70% attendance requirement, despite the fact that she could not attend most classes as she delivered a child during that semester.

No Reproductive Autonomy: The Production of the ‘Mother’

The judicial construction of pregnancy as a free and informed choice is completely divorced from Indian social reality. Indian women exercise little autonomy over reproductive decision-making and have limited access to contraceptives. At least 50% of Indian women are married before the age of 18 despite the Child Marriage Act, 2006 and only 8% of married adolescents currently use contraception. Marriage, as an exception to statutory rape in India, completely negates the sexual autonomy of married women in refusing to engage in sexual intercourse with their husbands. Furthermore, in patriarchal societies, there is a production of the ‘mother’ immediately when a female is born. This is because of tremendous social pressure on women to bear children in such societies, which define “woman’s nature” based on the ideals of marriage, dutifulness, subservience and nurturing. Any transgression is regarded as deviance, warranting social wrath and course correction to align with the male perspective of female nature and permissible behaviour.

Disparate Impact

Disparate impact as opposed to disparate treatment is a result of ‘unintentional’, ‘indirect’ or ‘negligent’ discrimination due to a seemingly neutral law that disproportionately impacts a protected group. Article 15 of the Indian Constitution prohibits discrimination based on sex inter alia other grounds. Legal feminists have argued for critical contextual engagement beyond the confines of rigid textualism to recognise women’s right against indirect sex discrimination under Article 15(1). Recently, the Supreme Court in four concurring opinions in Navtej Johar, decriminalised consensual same-sex relations in India by reinterpreting sex discrimination after decades of what Kannibaran calls, “judicial meanderings in patriarchal thickets”. Justice Chandrachud reasoned that what was important was the effect of the law upon those who were subject to it and not the intention of the legislature to preclude not just formal but also substantive sex discrimination, which may be based on a ground derived from sex.

Facially-neutral laws disciplining pregnancy penalise women for decisions they have little control over, as was argued by the petitioners in Javed vs. State of Haryana. The provision prohibiting anyone from holding public offices in Panchayats in Haryana if he/she bore more than two living children was challenged in this case for its disparate impact on women because of their lack of reproductive autonomy. Similarly, in the case of Rajbala, women without certain educational qualifications were barred from contesting Panchayat elections in Haryana. The goal to incentivize education in that case was commendable, just as increasing academic discipline is for the present argument. However, its effect was to disproportionately deprive women of the opportunity to empower themselves through decision-making in local self-government based on their lack of access to educational opportunities. The Supreme Court’s refusal to accept the arguments in Javed and Rajbala, effectively disenfranchised women, an already marginalised group.

Rhe Supreme Court and Delhi High Court have recognised pregnancy as a matter of fundamental choice, part of personal liberty under Art.21 in Suchita Srivastava and Inspector Ravina vs. UoI respectively. Education is a significant leveller of structural inequalities and the Supreme Court has recognised the right to education as a part of the right to life under Art.21 of the Constitution through a range of judgments. The gender agnostic basis of attendance requirements fails to account for both the right to motherhood and the right to education. It imposes an unconstitutional condition upon women compelling them to forego one fundamental right for another. Pregnancy is a choice that involves at least two persons but the burden of it disproportionately falls upon women solely because of their sex. By failing to classify men differently from women, who may not be able to meet the gender-neutral attendance requirements due to pregnancy, the rules for minimum attendance treat unequal cases equally, thereby violating Article 14 of the Indian Constitution, which guarantees the right to equality.

Compassion and Sympathy

Indian legal feminist Usha Ramanathan argues based on a series of judgements that the Indian judiciary’s compassion and sympathy lie with its expectations of what a ‘Reasonable Man’ would do. Indian Courts have observed that they cannot jeopardise the rule of law out of compassion and sympathy for litigants who would have to repeat another year due to marginal shortages in attendance. However, even the lip service of compassion and sympathy in such cases is based on the shortages being marginal and not the gendered reason for such shortages in case of pregnant women.

As Prof. Dhanda notes, “pregnancy affects women in different ways and must be accommodated in an academic session if the student wants.” Failure to do so is not to deprive women of the privilege of compassion or sympathy but their fundamental right against sex discrimination under Art.15(1) of the Indian Constitution. Following from the ambitious and long overdue promise of Johar, it is pertinent to ensure that pregnant women have a right to exemption from androcentric attendance requirements that disproportionately impact them because such attendance shortages are based on maternity, a factor directly derived from their sex. Penalising women for falling short of these requirements due to maternity constitutes sex discrimination, violates the right to equality and reduces Johar to a parchment decree.

Written by Amlan Mishra

In December 2018, India’s Home Ministry released a notification which was condemned by the civil society as establishing a ‘surveillance state’.  It empowers ten government agencies to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource, such as social media. The authorisation for such surveillance must be given by the Home Secretary, who works directly under the politically elected government. This has sparked a debate about Indian privacy regime and its discontents. This article will seek to identify the problems of this surveillance regime and situate them in the international context. This contribution argues in favour of a ‘comprehensive privacy law’ drafted by Indian privacy activists.

Proportionality Test

The celebrated General Data Protection Regulation (GDPR) provides a list of reasons, such as national security, for which states can curtail privacy. However, the restrictions must be ‘necessary and proportionate’. This proportionality test warrants that the act which infringes privacy must have a legitimate aim and must be the least restrictive way of achieving that aim. Indian courts have paid lip service to this test. In contrast, US courts’ standard of ‘reasonable expectation of privacy’, protects only a socially accepted standard of privacy. Daniel J. Solove, in his book ‘Understanding Privacy’, argues that reasonable expectations of privacy if based on society’s expectation will be problematic, as most people in the society do not understand the full consequences of the breach of their personal information. Indeed, governments may condition people overtime to accept a huge infringement of their privacy as ‘reasonable’. Solove suggests that a better test is to look at not just how much infringement is reasonable (an empirical test), but how much should be considered reasonable or proportionate (a normative test). The proportionality test meets this higher threshold by allowing only the least possible infringement.  In India,  though courts have accepted the proportionality test, they have occasionally entered into the question of ‘empirical reasonable expectation by society’ (a vestige of the reasonable expectations of privacy test), thus wrongly applying proportionality test and thereby creating uncertainty.

Under the present law, the authorising agency for surveillance is the Home Secretary (both at the centre and the state) who also supervises all law enforcement agencies. The Secretary cannot be expected to apply an impartial judicial mind. In the recently concluded Aadhaar case on the constitutionality of India’s biometric database, the court read down the ‘national sec­urity’ exception which provided access to the biometric database to the investigative agencies on authorisation by the joint secretary. In holding that the joint secretary – a bureaucrat under the government of the day – is not the proper authority to decide whether such access should be given, the court hinted that instead a judicial officer should be consulted. Data collection without effective judicial checks, with only minimal executive oversight falls foul of the proportionality test.

Illegal search and seizure

In India, the right to privacy is recognised as a facet of personal liberty. Yet, courts have held that documents emanating from privacy violations (like illegal surveillance or search and seizure) can be admissible in trial if they are relevant to the case. This dichotomy incentivises investigative agencies to carry out illegal surveillance. In contrary examples, such as the US, if privacy violation is shown, the evidence becomes non-admissible and the trial becomes illegal for violating the fourth amendment. Thus in India, illegal surveillance has a direct impact on the criminal justice system.

Curiously, in India, the courts have imagined privacy as belonging to ‘people’ and not ‘places’ and have held that collection of personal information amounts to a privacy violation irrespective of the location (private or public) of such information (District Registrar v. Canara Bank). This is the opposite of the third-party doctrine prevalent in the US, which does not consider information about a person collected from a third party or public place, a Fourth Amendment violation. Such an approach is wrong because it conceives privacy as confined to four walls of one’s house, without recognising that we may still expect privacy in public or once we have made something known to a select group of people. For instance, a person in a public place may feel his right to privacy violated upon being stared at continuously or overheard. Individuals, not just places are the repository of privacy rights. Thus while the Indian Courts’ privacy jurisprudence is more perceptive, its application is yet to be extended to the criminal justice system or to the cyber laws.

Use Restriction

Indian laws remain scant with reference to the use of collected data. The rule of destroying collected information within nine months is subject to vague exceptions like ‘functional necessity’ and ‘ongoing investigation’. Investigations sometimes run into years with little stopping investigative agencies from information storing and processing by creating digital dossiers or databases on vague pretexts. In September 2018, the ECHR held that the UK’s surveillance database violated privacy as it could reveal ‘an intimate picture’ of individuals by using and processing data that was collected and stored overtime. The Aadhaar case in India, similarly found storage of biometric information by agencies for seven years disproportionate, recognising the problem of unregulated data storing. A group of privacy activists have drafted a comprehensive privacy law for India, which addresses the above mentioned deficits. It stresses independent commissions, judicial and legislative oversight and data use restrictions to uphold privacy. Despite this development, lack of political will has stalled the process of its adoption.

Written by: Elan Schwartz

The Background

On October 13^th, a caravan comprised of some 150 migrants from Central America departed from the Honduras with the hope of claiming asylum in the United States. Since its departure, the caravan has gathered nearly 8000 migrants, fleeing persecution, poverty and political instability, to join on its mission. The migrants banded together for protection, hoping that there would be safety in numbers. In reality, the opposite was the case; large numbers created the optics of an ambush on American people, and American sovereignty. Unfortunately for this group, the caravan’s journey coincided with the heat of the 2018 midterm campaigns. It was used as a political pawn by campaigners, most notably President Donald Trump. Known for his hard line on migration, especially illegal migration from the south, Trump strongly emphasized the perceived threat of a ‘migrant invasion’ from South America. Former-President Barack Obama was among commentators who argued that the caravan was being treated as a ‘political stunt’ by Trump in order to instill fear in Americans and rally his voter-base in anticipation of the midterm elections.

President Trump has routinely disregarded the fact that the migrant caravan, which was composed of mainly women and children, travelled to America for the purpose of seeking asylum. Rather, he has used shocking and racist language, framing the group as criminals, economic burdens, traffickers, and rapists. He has led an aggressive, fear-mongering, ‘us vs. them’ crusade, claiming that the caravan threatens the integrity, economy and safety of American people. Trump has made it clear, not only through his inflammatory speech but also through his actions, that he will do everything in his power as President to stop the caravan’s arrival onto US soil. The President even went so far as to dispatch 6000 troops to ‘protect’ the southern border, an act that Senators Ron Wyden and Jeff Merkley, condemned as a “politically motivated mission”.

After losing the Republican majority in the midterm elections, the Trump administration used fears of the migrant caravan in a new way to further his fight for the border wall. The supposed ‘migration crisis’ has been used to first shut down the government for five weeks – the longest in US history – and then more recently to justify calling a ‘national emergency’ so that President Trump can build his wall.

Securitization of migrants

The migrant caravan fits into a larger discourse on the securitization of migrants. The securitization theory, which was developed by the scholars of the Copenhagen School, describes the process by which an issue becomes the subject of emergency or crisis. Central to the process of securitization is the securitizing actor, who is usually part of a political elite, and who securitizes an issue by articulating the existence of a threat to the survival of some referent object. In this case, what is conceived as the existential threat is the migrant caravan, and importantly also, what it symbolizes; illegal immigration into the US from the southern border. The referent object is the entity, whose very existence is under threat, in this case; the American public. What Trump determines as ostensibly threatened by the caravan’s arrival is the safety, culture, and economy of the American people. By positioning the migrant caravan as a potential security threat, Trump is able to shift the political space from the normal state of affairs to the realm of ‘emergency politics’. This shift creates impetus for extraordinary political measures and policies to flourish, such as the construction of a $5.7 billion border wall.

It is important to note that for securitization theorists, a security problem does not rely on an underlying objective threat. What Trump is doing is socially constructing a threat, which is not supported by evidence. A report from the Pew Research Centre shows that illegal immigration has been decreasing in America for years, reaching a 12-year low in 2016. The report further claims that the largest source of illegal immigration is not the result of illegal entering, but is rather the result of visa overstays. A 2017 study from the Department of Homeland Security recorded that the border wall was at its most secure stage in history. Not only are there fewer illegal entries into the US, studies have also shown that illegal and legal immigrants commit fewer crimes than native born Americans, and are not prone to terrorist activity. The Drug Enforcement Administration has denounced the theory that a wall will protect America from drug trafficking, reporting that illegal drugs predominately arrive into America through legal ports of entry via plane, boat, or vehicle. Considering all of this, there is little merit to Trump’s claim of a “crisis” caused by either legal or illegal immigration.

The real crisis is a humanitarian crisis

Trump’s mischaracterization of the crisis has real humanitarian consequences. The real danger of Trump’s crisis rhetoric is that his Administration’s policies become focused only on deterrents, as opposed to protection. The Trump administration has intensified the use an Obama-era policy known as “metering,” which limits the number of asylum seekers allowed to enter the US each day. The consequence of this policy is that migrants, many of whom have travelled for months, have been stopped short of the legal entry port and forced to wait in Mexico. Some migrants can wait for months in this limbo, unable to claim their legal asylum right by virtue of not being permitted onto US ground. The policy is also encouraging the smuggling of those who are most desperate to seek safety in the US.

Furthermore, there is also a lack of funding going toward the proper housing of asylum-seekers and migrants once they have arrived within America’s borders. Two Guatemalan children, 7 and 8 years of age, have died while being detained by US border custody in the same month. A potential reason for their deaths can be attributed to a study by the Centre for Migration Studies, which has reported that immigration officials systematically deny medical assistance to migrants who speak indigenous languages. Arguably the most despicable migration policy to date, is the ‘zero tolerance policy’ that operated last summer. Before the policy was reversed in late June after massive public outcry, 3000 children were forcibly separated from their parents while attempting to migrate into the US.

The youngest women to serve in Congress, Alexandria Ocasio-Cortez, has called out Trump for failing to hold up Article 14 of the Universal Declaration of Human Rights; the right to asylum. Speaking on The Rachel Maddow Show, Cortez stated, “The President should not be asking for more money to an agency that has systematically violated human rights; the President should be really defending why we are funding such an agency at all.” President Trump is correct; there is a crisis at the US border, but it is not a crisis of national security. This is a humanitarian crisis; one that has been amplified by the Trump Administration’s policies. Family separation, the metering policy, tear-gas attacks, children dying in border custody, squalor conditions in both American detention centers and in the waiting zone of Mexico, and of course, the systematic violation of the right to asylum are the issues at stake. A border wall does not solve any of these issues, so why should the Democrats give into Trump’s plea?

Asylum seeking is not a crime; it is a human right protected under national and international law. Yes, border security is a sovereign right, but it should not be at the expense of the right to asylum, nor should these issues be conflated. There is no doubt that the increased numbers of asylum-seekers make it more difficult for the Administration to assess the legitimacy and validity of the claims. Better technology and human resources may make the process of vetting more precise and efficient, but debates over a border wall do nothing but distract from the real situation at hand. Speaking at a lecture hosted by the LSE’s European Institute, Dimitris Avramopoulos, European Commissioner for Migration, Home Affairs and Citizenship, stated, “it is not by building walls that we become safer; we only become more isolated.” The American government needs to invest in more efficient, just and humane measures to house and treat migrants as they wait for their claims to be processed. We must not be isolated from nor blind to the real crisis that is at stake.

References:

Balzacq, T. & Guzzini, S., 2015. Introduction: ‘What kind of theory – if any – is

securitization?’ International Relations, 29(1), pp.97–102.

Huysmans, Jef ,1995. ‘Migrants as a Security Problem: Dangers of “Securitizing” Societal

Issues’, in Robert Miles & Dietrich Thranhardt, eds, Migration and European

Integration: Dynamics of Inclusion and Exclusion . London: Pinter (53–72).

Waever, O. (2011) ‘Politics, security, theory’, Security Dialogue, 42(4-5) pp. 465-480.

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

*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.