Specifying and Securing a Social Minimum

Dr Dimitrios Kagiaros (Edinburgh Law School) reports on a recent workshop, ‘Specifying and Securing a Social Minimum’, held at the International Institute for the Sociology of Law in Oñati, Spain with support from the Global Justice Academy.

Organised by Professors Mike Adler (University of Edinburgh), Sara Stendahl (University of Gothenburg) and Jeff King (UCL), the purpose of the workshop was to bring together international experts from a variety of research backgrounds to discuss the theme of ‘Specifying and Securing a Social Minimum’. The overarching issue that was examined related to the difficulties in determining how poor and vulnerable people can achieve basic minimum standards of nutrition, health care, housing, income, employment and education.

Drawing from a variety of disciplines, including legal theory, human rights law, constitutional and administrative law and social policy, the invited academic speakers were asked to submit research papers illustrating recent developments and new challenges in this field. The workshop followed a particularly innovative approach in generating discussion. Commentators were assigned to each paper and were responsible for presenting its content while also acting as discussants, providing feedback and identifying points for further discussion. This facilitated in-depth consideration of each paper and multiple opportunities for exchange of ideas across disciplines.

The conference theme generated debate on two controversial issues. Firstly, the workshop addressed different approaches and obstacles to defining a social minimum. This included discussion on the concept of poverty, the legal position of social assistance recipients, the concepts of social rights and social responsibilities, and the relationship between resources and the concept of a ‘minimally decent life’.
Secondly, the workshop aimed to bring further clarity to the thorny issue of how such a minimum can be achieved. More specifically, participants critically assessed the contribution of national policies, international conventions, targets and development goals, bills of rights or other forms of constitutional protection to securing this social minimum. Special emphasis was placed on the role of courts. Participants presented judicial approaches to securing a social minimum from India, South Africa, Brazil, and at the international level, the UN Committee on Economic, Social and Cultural Rights and the European Court of Human Rights.

Dr Kagiaros’ paper focused on the role of the European Court of Human Rights in this debate. The paper relied on recent admissibility decisions where applicants unsuccessfully challenged austerity measures adopted to give effect to conditionality agreements in states in the midst of a debt crisis. While ultimately the applications failed at the admissibility stage, the Court in obiter statements alluded to the possibility that a wholly insufficient amount of pensions and other benefits would, in principle, violate the Convention. The paper explored these statements in detail to decipher whether in fact the Court would be willing to set a social minimum standard of protection. The paper argued, that although a duty not to target specific individuals with harsh austerity measures while leaving others unaffected has been read into the ECHR, it is unlikely that with this statement on insufficiency of benefits the Court intends to create a social minimum.

Overall, this was a particularly enriching experience for all involved and hopefully more similar opportunities will arise to discuss these issues in even greater depth.

More about the author:

Dr. Dimitrios Kagiaros is a Teaching Fellow in Public Law and Human Rights at the University of Edinburgh and a member of the Edinburgh Centre for Constitutional Law. He has taught on constitutional law, administrative law and human rights law courses at the University of Edinburgh and the University of Hull. His research interests include whistle-blower protection, the impact of European sovereign debt crisis on human rights and the case law of the European Court of Human Rights in relation to freedom of expression.

 

 

The United Nations Treaty on the Prohibition of Nuclear Weapons

Dagmar Topf Aguiar de Medeiros is reading for a PhD in Law at the University of Edinburgh, and is an intern at UN House Scotland. As a member of a delegation from Scottish civil society, she recently attended negotiations in New York on the Treaty on the Prohibition of Nuclear Weapons, which was adopted 7 July 2017, at the United Nations.

The United Nations has aimed to ban nuclear weapons since it was established in 1945.[1] In fact, the very first UN General Assembly resolution established a Commission to set in motion measures towards nuclear disarmament.[2] Until recently, the most important instrument to this end was the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).[3] Recent years have seen growing discontent with the discriminatory nature of the NPT, which distinguishes between nuclear weapon states and non-nuclear weapon states. Additionally, the NPT faces criticism with regard to the stagnation of nuclear disarmament. Although the treaty includes an obligation to work towards nuclear disarmament, Article 6 has not, as of late, provided sufficient incentive for nuclear weapon states to act.

With an aim to finally move forwards, in October 2016 the UN disarmament and international security committee saw 123 nations voting in favour of meeting to negotiate a legally binding instrument to prohibit nuclear weapons, leading to their total elimination. These negotiations have taken place throughout spring and summer 2017 and have culminated in the adoption of the Treaty on the Prohibition of Nuclear Weapons on the 7th July this year.

The treaty prohibits member states from developing, testing, producing, manufacturing, transferring, possessing, stockpiling, using or threatening to use nuclear weapons, and disallows them from assisting, encouraging or inducing anyone to participate in such activities. Furthermore, it has become forbidden to allow nuclear weapons to be stationed or deployed on member states’ territory. Of equal importance are the positive obligations in the treaty to provide adequate victim assistance and to take measures towards the remediation of environments contaminated as a result of the use or testing of nuclear weapons. Although not explicitly mentioned, there is a growing understanding that financing constitutes ‘assistance’ with prohibited acts.

The text and preamble of the ban treaty reflect the efforts of civil society by emphasising the humanitarian and environmental impact of any nuclear detonation, be it accidental or intentional. The humanitarian initiative proved successful in shifting the debate out of the security argument stalemate states had become entrenched in. At the negotiations, civil society had the opportunity to share the experiences of victims of nuclear weapons and nuclear testing, and to highlight the devastating impact of any detonation and the lack of adequate emergency-response capacity.

By placing human welfare and safety at the centre of the treaty, it is hoped that the ban treaty will have a ripple effect similar to that of the Conventions prohibiting Biological and Chemical weapons. Therefore, even though none of the nuclear weapons states have expressed any interest in joining the negotiations or the treaty, it is hoped the legal norm combined with continued pressure from civil society will eventually convince governments to discontinue nuclear deterrence policies.

The ban treaty is of particular interest to Scotland because of the country’s unique position of having to facilitate nuclear weapons without having any say in the decisions involving them. This is because nuclear weapons are considered a matter of national security and as such fall outside the scope of Scotland’s devolved powers.

[1] https://www.un.org/disarmament/wmd/nuclear/ (last visited 9 July 2017).

[2] General Assembly Resolution VIII, Establishment of a commission to deal with the problem raised by the discovery of atomic energy (24 January 1946), available from http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/1(I) (last visited 9 July 2017).

[3] Treaty on the Non-Proliferation of Nuclear Weapons (5 March 1970) 729 U.N.T.S. 161.

If you are interested in reading more about the negotiations on the ban treaty, including daily reports from the Scottish civil society delegation to New York, visit http://www.nuclearban.scot/ and http://www.icanw.org/

If you want to find out more about civil society engagement surrounding nuclear disarmament, please visit:

http://www.banthebomb.org/

http://www.nukewatch.org.uk/

http://www.article36.org/

If you’re interested in reading twitter updates, the handle to follow is #nuclearban

More about the author:

Dagmar Topf Aguiar de Medeiros is reading for a PhD in Law at the University of Edinburgh. She holds an LLM in Private Law from the University of Leiden and an LLB from the Utrecht Law College of Utrecht University in the Netherlands. Dagmar’s research interests span public international law, specifically environmental law, climate change law and human rights. Her current research relates to the international constitutionalism in the context of the United Nations Framework Convention on Climate Change.

Brexit, Northern Ireland and UK-Irish Relations

CB profileThis post by GJA Director, Professor Christine Bell, was first published on the Centre on Constitutional Change blog on 26 March 2016, co-published with European Futures.

Amid pronouncements about the UK as an island nation, scant media or political attention has been paid to its only land border with the EU – between Northern Ireland and the Republic. However, says Professor Christine Bell in this extended analysis, the impact of Brexit on the institutions built up as part of the Peace Process would be considerable.

The EU referendum and the possibility of ‘Brexit’ raise distinct questions for Northern Ireland as a devolved region within the UK as part of the peace process. In the referendum debate, more attention needs to be given in the rest of the UK to Northern Ireland, the one part of the UK which has a land border with another EU country.

Political Divisions and the EU Referendum Campaign

The first key question as regards the EU referendum’s impact in Northern Ireland relates to the distinctiveness of its political settlement: how will the Brexit campaign affect political relationships – ever fragile – within Northern Ireland?

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The Fast-Eroding Glue of Union: Devolution and the Human Rights Act

Director of the Global Justice Academy and Professor of Constitutional Law at the University of Edinburgh, Christine Bell, first blogged on the difficulties that repeal of the Human Rights Act would pose for the UK’s devolved settlements in May 2015. This blog builds on those initial arguments, first appearing on The Centre on Constitutional Change Blog. It has since been picked up by the UK media.

The Conservative government’s proposed repeal of the Human Rights Act (HRA) and possible withdrawal from the European Convention on Human Rights (ECHR) and Council of Europe, would have far-reaching implications for the UK’s devolved administrations and relations with the Republic of Ireland. These run deep into the constitutional marrow of the nations involved; so deep that it is difficult to see how repeal of the Act could take place without their consent. The government’s difficulties in relation to, especially, Scotland and Northern Ireland are significant but different and worth reviewing separately.

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Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland

Can the UK’s Human Rights Act be repealed? What would the process need? Is it even possible? What are the legal implications?

Christine Bell, Professor of Constitutional Law at Edinburgh Law School, Assistant Principal Global Justice and Director of the Global Justice Academy, offers this review of the current debate on repealing the Human Rights Act, and points readers to other available resources.

In the past few days repeal of the Human Rights Act, and in particular its devolution implications have attracted a lot of attention.  Today, a new report is launched from a legal expert seminar in April 2015, on the legal implications of repeal of the human rights act (see below).  The report provides the full chapter and verse, but here are a few quick points on the devolution implications, with further more detailed and reasoned resources below.

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