Talking Human Trafficking and Modern Slavery in the Context of Migration Negotiations

Dr Kasey McCall-Smith, Chair of the Association of Human Rights Institutes and member of the Global Justice Academy, discusses Human Trafficking and Modern Slavery in the context of the UN Global Compact for Migration.

In a previous post, I gave general overview of the UN Global Compact for Migration and a brief analysis of the Migration Compact thematic discussions on the distinctions between human smuggling and human trafficking. This note considers modern slavery, a topic with which the University of Edinburgh is highly engaged through both academic projects as well as its Modern Slavery initiatives. Following on from the distinction between migrants smuggled into a state for the sole purpose of evading legal migration and individuals trafficked into (or within) a state for purposes of exploitation, the following will present key debates about modern slavery and human trafficking that are highly relevant to the conclusion of a comprehensive Migration Compact.

Anne Gallagher (Doughty St Chambers), an expert on migration and human trafficking, introduced the subject for the assembly echoing the common NGO mantra that current approaches to migration undermine public support for regular legal migration. Many government policies and hyperbolic rhetoric focused on the criminalisation of irregular migrants (often referred to as ‘crimmigration’) ignore the reality that most migration takes place through legal channels and evidence demonstrates that this has been a great contribution to the economic development of states throughout history. Though trafficking does contribute to irregular migration, the underlying purposes breach international law and the rights of individuals who are trafficked into modern slavery. While much progress on addressing irregular migration that contributes to modern slavery has been made in the past decade, states are failing to seriously implement migration reception practices that are sensitive to the victims of this criminal activity.

There is no single definition of modern slavery in international law. Slavery in its traditional sense is prohibited under treaty and customary international law, but the nuances of contemporary practices are highly varied. One thing is certain; victims of trafficking never consent to the intended ends of exploitation, whether these ends are labour exploitation, sexual exploitation or any other form of exploitation or servitude. Poor labour practices where pay is withheld, passports are confiscated or freedom of movement is otherwise restricted amounts to modern slavery and these situations are often linked to highly stringent migrant worker policies. From the perspective of Migration Compact negotiations, the catch is that smuggled irregular migrants and trafficked persons often travel the same routes and many states are unwilling to develop programmes that enhance the identification of trafficked individuals. Furthermore, the power imbalance between the smugglers/traffickers and the migrants/victims are always out of kilter on the side of the former so identification is messy at best even if solely focusing on victimhood. The nature of those facilitating trafficking is also very blurred and generally focused on men and crime syndicates when there is substantial evidence indicating that family members and older children also contribute to the global trafficking epidemic.

A clear divide exists in approaches to tackling trafficking and modern slavery. Many of the origin states and some NGOs of the global south view trafficking as a strictly supply and demand binary, pleading that if destination states enhanced the punishment for end users then the demand would dry up and their nationals would not be trafficked. Very conservative, non-western states argue that no such activity exists in their highly virtuous societies and, again, foist the blame on capitalist economies. Western states point to the internal conflicts or failing economies that are common across the states of origin. The reality is that they are all wrong and they are all right. No state is untouched by the issue of trafficking and exploitation of vulnerable people and every state can take steps to protect future generations from the horrors that hundreds of thousands of people have suffered. It is estimated that from 2012-2014, over 63,000 trafficking victims across 106 states were reported (see the session’s Thematic Brief) though other reports put the number markedly higher. It is notoriously difficult to identify trafficking victims as it is often a coin toss between the greater evil, the trafficker or the state’s mishandling of a victim. This contributes to the lack of comprehensive information about the dynamics of trafficking victims’ journeys. If the Global Compact negotiations are successful, there is hope that the number of trafficking victims and modern slavery will be closer to zero in a future near you.

#UNMigration #HumanTrafficking #humansmuggling #humanrights #internationallaw #UNnegotiations #ModernSlavery #TraffickingVictims

Follow the Global Justice Academy on Twitter: @GlobalJusticeEd

More about the author: Dr McCall-Smith is a lecturer in Public International Law and programme director for the LLM in Human Rights at the Edinburgh Law School.

Smuggling or Trafficking? Defining the Terms in the UN Migration Compact

Dr Kasey McCall-Smith, Chair of the Association of Human Rights Institutes and member of the Global Justice Academy, discusses recent steps towards a UN Global Compact for Migration. This is the first of two blogs from Dr McCall-Smith on the Migration Compact negotiations.

The next steps toward a UN Global Compact for Migration to combat the ever-growing legal and policy issues associated with mass and irregular migration were taken at the UN headquarters in Vienna, Austria, 4-5 September 2017. The Compact aims to deliver a comprehensive approach to human mobility as well as further clarification of and support for existing international frameworks addressing migration, refugees and trafficking, including the Refugee Convention and its Protocol, the UN Convention against Transnational Organized Crime (UNTOC), the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking in Persons Protocol) and the Protocol against the Smuggling of Migrants by Land, Sea and Air (Smuggling of Migrants Protocol), as well as a number of human rights instruments such as the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) the Convention on the Rights of the Child (CRC), among many others.

The agenda for the Thematic Session on Smuggling and Trafficking of Migrants promised a challenging two days working through how to identify, support and facilitate legal migration for the most vulnerable and outlined many controversial issues. All of these issues are overshadowed by the need to balance global efforts to regulate migration and protect human dignity against state sovereignty arguments focused on controlling borders. As an international instrument, before the document is agreed, states will spend much effort articulating terms in order to clarify what obligations may, or may not, emerge in the final form. The distinction between human smuggling and human trafficking, two terms that are often conflated in the media and general discourse, emerged as the first controversial terminology discussion. Recalling the New York Declaration for Refugees and Migrants, Louise Arbour, the UN Special Rapporteur on International Migration, clarified that while smuggling of migrants to facilitate irregular migration is a crime against a State, trafficking in persons is a crime against a person. This, sadly, is a point that has been often overlooked by States in the pursuit of stringent domestic migration policies that focus on excluding irregular migrants no matter what their migration journey. It is intended that the Migration Compact will recognise the nuances of the realities faced by people forced into irregular migration journeys and address these in the countries of origin, transit and destination.

The first panel on smuggling of migrants, comprised of Gabriella Sanchez (Migration Policy Centre, EUI), Mark Shaw (Global Initiative against Transnational Organized Crime) and Jorgen Carling (Peace Research Institute) delivered concrete, critical insights into the absolute necessity to understand the difference between the terms smuggling and trafficking and reiterated that trafficking victims must be distinguished from economic migrants when transit and destination states are processing irregular migrants. Many interventions prevailed upon States to recognise that heavy-handed counter-irregular migration policies often lead to an increase in trafficking and have extremely negative impacts on women and children that have been trafficked for the various ends of modern slavery. Hassiba Hadj Sabraoui (Médecins Sans Frontières) and Bandana Pattanaik (Global Alliance Against Trafficking in Women) cautioned the assembly that the terms human trafficking and human smuggling were not in need of such distinctions if you approach the issue from the victim’s viewpoint. All migrants are prone to vulnerability. It is documented by NGOs that individuals beginning their migration journeys as smuggled irregular migrants often find themselves trafficked as smugglers respond to increased restrictions and policing on traditional migration routes.

Ensuing interventions by states made clear that the distinction was inconsequential for those governments that have experienced a mass exodus in population or that are widely known for their harsh policies toward all irregular migrants. States with increasingly harsh migration policies continued to harp on the need for stronger implementation of criminal laws at the international, regional and domestic levels, ignoring all evidence and statements offered to the contrary. Addressing irregular migration cannot be solely about criminal justice responses and increasing barriers to legal migration. Comprehensive migration solutions must take a human rights based approach to dealing with the root causes of irregular and mass migration and the treatment of victims. A very clear point raised through the proceedings was the pressing need for much more substantial empirical data on migrants, trafficking victims and those involved in the trafficking chain so that there is better understanding of all irregular migration journeys. In the end, states must adapt to the realities that the victims of the wide range of causes for irregular migration, whether smuggled or trafficked or both, are human beings and only a human rights based approach that preserves their dignity will deliver any true resolution to the problem of irregular and mass migration.

#UNMigration #HumanTrafficking #humansmuggling #humanrights #internationallaw #UNnegotiations

Follow the Global Justice Academy on Twitter: @GlobalJusticeEd

More about the author: Dr McCall-Smith is a lecturer in Public International Law and programme director for the LLM in Human Rights at the Edinburgh Law School.

 

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.

Towards a radical digital citizenship in digital education

Dr Callum McGregor (Lecturer in Education, University of Edinburgh) reports and reflects on a recent Edinburgh lecture on digital citizenship and digital education, funded by the Global Justice Academy’s Innovative Initiative Fund

In collaboration with the Global Justice Academy, a number of people recently eschewed the rare evening sun in favour of assembling at Moray House School of Education for a public lecture entitled ‘Towards a radical digital citizenship in digital education.’ More noteworthy still, was the palpable enthusiasm in the room for striking up a sustained dialogue on social justice and digital education, across a range of standpoints and disciplines. This event, made possible with the support of the Global Justice Academy’s Innovative Initiative Fund[i], was organised by a small group of academics, tentatively titled the Forum for Digital Culture and Social Justice (DCSJ)[ii]. The DCSJ forum is at the initial stages of adumbrating a cross-disciplinary research agenda at the confluence of social justice, digital culture and education. The purpose of this event was to catalyse this process by creating space for an inclusive conversation about what digital citizenship is and what it might be, if re-framed as a political project for social justice.

The event was co-chaired by Dr Karen Gregory (Lecturer in Digital Sociology at the University of Edinburgh), and Dr Jen Ross (Senior Lecturer in Digital Education) who fielded questions and comments from participants using the hastag #deresearch, who were watching via the livestream (click here to watch the recording). Proceedings began with an input from members of the aforementioned DCSJ forum, Dr Akwugo Emejulu (Professor of Sociology, University of Warwick) and Dr Callum McGregor (Lecturer in Education, University of Edinburgh). They offered a polemical intervention that sought to disrupt the ways in which dominant cultural narratives construct digital citizenship, by explicating a concept of ‘radical digital citizenship’, and its implications for digital education. The arguments they advanced drew on a co-authored paper, published in Critical Studies in Education. Professor Emejulu and Dr McGregor argued that radical digital citizenship must push beyond ameliorative conceptions of digital citizenship, wherein the role of education is to bridge the ‘digital divide’ for the benefit of groups failing to be flexible enough to survive under the conditions of neoliberal techno-capitalism. They proposed that such an educational task involves two co-constitutive elements: (1) critical analysis of the political, economic and environmental consequences of digital technology in everyday life; (2) collective deliberation and action to build alternative and emancipatory techno-social practices.

This was followed by a response from Dr Emma Dowling[iii] (Senior Researcher, Senior Researcher at the Institute for Sociology at the University of Jena) and Dr Huw Davies[iv] (researcher at the Oxford Internet Institute and Convener of the BSA’s Digital Sociology study group). These inputs acted as stimuli to a lively and convivial discussion with attendees over tea and coffee. Below, respondents Emma and Huw share their reflections:

Emma Dowling

“The crucial question Akwugo Emejulu and Callum McGregor ask is what makes the digital possible, looking at the extraction of natural resources and gendered, racialised and classed human labour that the development of digital technologies is premised upon.  Their analysis makes three core proposals that could orient a radical digital education. First of all they caution against the instrumentalisation of digital education for neoliberal ends and urge for an understanding of what global social relations constitute the digital and condition the effects that digitalisation has. Moreover, their approach signals a commitment to social justice that insists on a critical pedagogy with the capacity not just for an analysis of the power relations behind digitalisation, but a commitment to transforming them. Transforming these power relations requires the identification of key sites of transformation. Undoubtedly these are conflictual terrains of struggle about how the materiality of the digital is spoken about and organised. Naming forms of exploitation is part of the struggle to transform them. A recent example is the way in which critical voices have refused to settle on the term ‘sharing economy’ that makes invisible the hyper-exploited forms of work undertaken by people providing services such as driving, delivering food or cleaning houses in platform capitalism. The more recent term ‘gig economy’, while in and of itself not changing those conditions, nonetheless gives a name to these activities as work and draws attention to the precarious ways in which this work is organised. Making sense of the affective structures of precariousness is another way in which agencies for transformation can be unearthed, because this allows for subjective everyday experiences to be deindividualised and related to the social structures that produce them. Critical pedagogies for digital education must do so much more than provide mere skills to process information and compete in an ever-more precarious labour market. Instead, radical digital citizens committed to social justice must be able to question and challenge the forms of exploitation, expropriation and oppression that are entangled in today’s algorithms.”

Huw Davies

“I found Emejulu & McGregor’s Towards a radical digital citizenship in digital education  (2016) inspiring. Their paper shows some of the most cited scholarship on digital skills and literacies is ‘sociology-lite’. This literature draws-up taxonomies and descriptions of normatively defined skills and literacies which once translated into curriculum plans become part of the problem of digital inequality rather than its solution. Emejulu & McGregor argue we shouldn’t disengage ‘the digital’ from the all the historic and continuing struggles for equality because, despite the utopian rhetoric, digital technology is quickly maturing into another exclusionary and privileging technology of power.

For example, every child from years 1 to 9 in England is to study Computer Science before being offered it as an option at GCSE. However, there is growing concern that the digital economy–far from being the meritocracy that is suggested in the discourse about the 4th industrial revolution–is becoming a ‘ruthless stratifier’ (Posner, 2017). This is because the dominant mode of production for the digital economy is ‘platform capitalism’ (Srnicek, 2016): a winner takes all system (Kenney and Zysman 2016) that allows the owners of platforms to operate exploitative employment practices that harness the affordances and fragilities of immaterial labour (Friedman 2014; Hill 2015; Leyshon et al. 2016), such as the ability to code. One of the myths of anti-immigration discourse is that if we close our borders natives will no longer have to compete with foreigners for jobs. But platform capitalism’s use of immaterial labour to create a transnational playing field (so that jobs with digital outputs such as software engineering can be put out to tender to an international workforce) means young people will be competing in global market place while having to pay for local living expenses. Therefore, to avoid their exploitation we can’t just rely on teaching young people to code (or skills and literacies) they need to be thinking about they can use these skills to challenge the architectures of digital economy’s dominant socio-technical structures (Davies & Eynon, forthcoming).

As a respondent, I took the opportunity to argue the most constructive contribution I can make is to help transform Digital Sociology into a respected mainstream subject that can influence the content of curriculums for all ages and levels. I described Digital Sociology as the most effective discipline for challenging platform capitalism. I argued that sociologists are able to draw on strong traditions to challenge the ideologies behind platform capitalism, but to understand code and digital infrastructures and their relationship to the political economy we have some way to go. Then (Digital) Sociology can offer a critique, which can become the foundation ethical alternatives to platform capitalism’s monopolies.”

[i] The public lecture was also funded with the support of the Institute for Education, Community and Society and the Centre for Research in Digital Education. Also, thanks to Dr Karen Gregory and Dr Jen Ross, who acted as chair and digital chair, respectively. Finally, particular thanks to learning technologist Barrie Barreto for livestreaming and recording the event.

[ii] If you are interested in participating in this group and helping it to develop, please contact Karen Gregory (karen.gregory@ed.ac.uk), Callum McGregor (callum.mcgregor@ed.ac.uk), or Jen Ross (jen.ross@ed.ac.uk).

[iii] Emma’s interests cover global social justice, feminist political economy and affective and emotional labour. She is the author of a forthcoming book on the Crisis of Care to be published by Verso Books.

[iv] Huw’s research combines social theory with mixed, digital and ethnographic, methods to help critically re-evaluate how we approach young people’s digital literacies.

 

Sexual Intimacy, Gender Identity & Fraud: A Conversation

This blog post was written by Heather Milligan, Communications Intern for the Global Justice Academy. The blog reports on a recent seminar event hosted by the Centre for Law and Society at The University of Edinburgh and led by Professor Alex Sharpe of Keele University on sexual intimacy, gender identity and fraud. 

The Centre for Law and Society at the University of Edinburgh recently hosted a presentation and seminar discussion on sexual intimacy, gender identity and fraud. Participants from a range of interdisciplinary backgrounds compared legal, cultural and ethical standpoints to debate convictions of gender identity fraud: either as demonstrating respect for the sexual autonomy of female complainants, or as a concerning example of criminal law overreach. The discussion was framed and contextualised by a series of sexual offence prosecutions brought against young gender non-conforming people (designated female at birth) in recent years in the United Kingdom on the basis of gender identity fraud, all of whom were convicted and placed on the Sex Offenders Register. Professor Alex Sharpe (Keele University) introduced the topic with a brief film clip from the 1992 film ‘The Crying Game’ in order to illustrate the type of intimate encounter between cisgender and transgender individuals that has led to such convictions. The film also served to demonstrate the complainants’ typical responses to cis-trans intimacy, in which the defendant’s gender history is (apparently) not disclosed and this non-disclosure is later perceived as deceptive and harmful.

Professor Sharpe put forward a persuasive argument for bringing an end to the criminalisation and prosecution of these cases, advocating greater individual responsibility for sexual intimacy while remaining sensitive to the difficulties involved in questioning the statements of rape complainants. Her initial presentation was structured around three key philosophical and criminal law concepts: consent, harm and deception. Firstly, the point was made that claims of non-consent in the discussed cases relied heavily on a ‘right to know’ ideology, in which complainants foregrounded an entitlement to the defendants’ gender history, simultaneously dismissing and overruling the defendants’ rights to privacy and dignity. The seminar group discussed the idea that this apparent right to know is often conflated with a desire to define transmen as women against their will: an act of degradation. The discussion prompted resonant legal and ethical questions: should there be an obligation to disclose information prior to intimacy, or should our ethical response be to scrutinise the cisgender demand to know? With implications for sexual offences more broadly, for consent to be informed, how transparent must sexual partners be, and at what cost?

Other examples of desire-led intimacy were put forward to suggest that individuals may wish to know many facts about their sexual partners – for example age, income, drug use, criminal conviction – yet the omission of this information would never lead to prosecution. The specific targeting of gender history is an issue of inconsistency further indicative of the discriminatory effects of civil society and criminal law. These cases seemed motivated by the underlying transphobic (and homophobic) assumptions that no cisgender person would, with full disclosure of their gender history, willingly have intimate relations with a transgender person. This led to interesting audience reflection that complainants often only come forward when encouraged to do so by family or community members, and that the pressure of homophobic society, the fear of being identified as a lesbian by others and internal crises of identity and sexuality, may have motivated the complaints. The societal presumption that any non-cis non-heterosexual intimacy is inherently harmful was identified as an aggressive amplifier in these cases.

 
Finally, a distinction between acts of omission and acts of deception was drawn. It was argued that in cases of gender history and identity disclosure, most often these were instances of ‘not saying’ rather than active or intentional deception, and that these entailed a variety of valid justifications – not least the physical and psychological risk involved in acts of disclosure. Professor Sharpe invited the audience to understand these cases as a balancing of potential harms, weighing the complainants’ feelings of betrayal and distress (potentially a response conditioned by transphobic and homophobic anxieties) against the defenders’ risk of degradation and abuse. Opening up questions and discussion to the audience encouraged a lively discussion on related issues such as the ethics of sexual preference and the reproduction of power dynamics; the (positive) ambiguity of desire; what acts can really be said to constitute disclosure; and, ultimately, whether pleasurable acts retrospectively re-imagined can truly be labelled as harmful.

This event was presented by Law Reform and Social Justice, and The Centre for Law, Arts and Humanities and the Gender Institute.

Thinking Without Bannisters: The Spirit of Hannah Arendt

Dr Hugh McDonnell is based in the Department of Politics and International Relations at the University of Edinburgh as a Postdoctoral Fellow on a project assessing complicity in human rights violations. In this blog post, he discusses a recent film screening and round-table discussion event on the work of Hannah Arendt.

The enduring fascination of one of the twentieth century’s leading thinkers, commonly celebrated as highly original and unclassifiable, was explored in ‘Thinking Without Bannisters: The Spirit of Hannah Arendt’. The afternoon event brought together specialists and interested amateurs alike to view Ada Ushpiz’s new documentary ‘Vita Activa – The Spirit of Hannah Arendt.’ This was followed by a round-table session, featuring three foremost Arendt scholars: Professor Patrick Hayden from International Relations (University of St Andrews), Liisi Keedus from Politics (University of York), and historian Stephan Malinowski (University of Edinburgh).

Ushpiz’s documentary explored Arendt’s life and thought in their mutual interconnections. This included an overview of her formative years as a child in a German-Jewish family in Königsberg and Berlin, before discussing her developing and already prodigious intellectual curiosity at the universities of Marburg and Heidelberg, and the formative intellectual and personal influences of philosophers Martin Heidegger and Karl Jaspers.

Naturally, Arendt’s experience and reflections on the Second World War loom large in the film. Her own experiences disposed her to reflect on the condition of being a refugee, to think through the radical rightlessness that this implied. Consideration of Arendt’s famous formulation of the ‘banality of evil’ drew on fascinating original film footage of the 1961 trial of Adolf Eichmann, which Arendt attended. Ushpiz does not circumvent controversies surrounding Arendt herself, as interviewees reflected on hostile reactions to Arendt’s work, particularly Eichmann in Jerusalem, as well as, more specifically, her controversial analysis of the Judenräte.

The round-table discussion was opened by Patrick Hayden’s evocative and thought-provoking disquisition on Arendt’s metaphor of the desert as her attempt to understand individuals’ thoughtless flights from the strangeness and suffering of the political world. On this basis, he developed Arendt’s insights into suffering as the other side of action, that at the same time extends an appeal to our joint responsibility to say “enough” and reaffirm the boundaries of politics. Liisi Keedus spoke next about the intellectual history of ‘thinking without bannisters’, tracing its roots to the modern gap between past and future, while revealing its broader purchase as condition of resistant action. And before opening the floor to questions, Stephan Malinowski reflected on the originality of Arendt’s work from a historian’s perspective, suggesting the fertility of the ideas and questions she raised, and the distinctly interesting character of the answers she reached, even when they strike us as mistaken. Questions from the floor prompted the panel to further reflect on the contemporary relevance of Arendt’s thought: the novel insights she offered in terms of the systemic rather than personalised logic of injustice and violence, her attentiveness to the vulnerabilities of democracy, or her staunch resistance to truth claims that have lost an anchor in political reality. Audience members were left with plenty of food for thought to consider further the meaning of Arendt’s independent thinking, judgement, and responsibility at the present historical juncture.

This event was hosted at the University of Edinburgh, and was made possible by the funding of the Global Justice Academy and Global Development Academies’ Innovative Initiative Fund, as well as the School of Social and Political Science through the Research Student-Led Special Projects Grant. 

More about the author:

Dr McDonell completed his PhD at the University of Amsterdam where he worked between the Department of European Studies and the Amsterdam School of Cultural Analysis. His work Europeanising Spaces in Paris, c. 1947-1962 (Liverpool University Press, 2016) examines ways in which ideas about Europe and Europeanness were articulated and contested in politics, culture, and the Parisian urban landscape. McDonell is also working as a Postdoctoral Fellow on a European Research Council Starting Grant ‘Grey Zone’ project examines complex complicity from historical and theoretical perspectives. More about the project is available here: http://blogs.sps.ed.ac.uk/greyzone/ 

You can read more about complicity in human rights violations in this blog by Dr Mihaela Mihia, Senior Research Fellow in Political Theory at the University of Edinburgh: http://www.globaljusticeblog.ed.ac.uk/2017/02/20/peace-and-conflict-series-4/

 

Turning Off the Light: Protecting Survivors of Torture (Peace and Conflict Series)

Publicising Human Rights violations and holding perpetrators of torture accountable has been guiding practice for much human rights work. As Prof. Tobias Kelly shows in this contribution to the GJA’s Peace & Conflict blog series: rather than shining light into dark places, many victims want the lights switched off. Kelly suggests that that the need for protecting victims may be more important than the need to hold perpetrators accountable.

By Tobias Kelly

Perpetrators need to be held to account and victims need redress. This has been the central principle of human rights work against torture for the past fifty years. However, collaborative work we have been carrying out in Kenya, Bangladesh and Nepal suggests that for many survivors- especially amongst the poorest and most vulnerable in society- the emphasis might be in the wrong place. What most survivors want, above all else, is to feel safe and secure, and accountability has only an indirect relationship with the desire for protection.  Continue reading

Unrecognized in the Shadows – the Plight of the Stateless

This blog post was written by Lee Caspi and Federica Sola, masters students of the LL.M in Human Rights at the University of Edinburgh. The blog reports on the panel eventUnrecognized in the Shadows: The Plight of the Stateless” on the topic of statelessness, hosted recently in Edinburgh, that received funding from the Global Justice and Global Development academies’ joint Innovative Initiative Fund.

On the 4th of April 2017 students, academics and professionals came together to discuss the issue of statelessness, a topic that does not receive much attention in academia or in public debate. The speakers aimed to raise awareness of the challenges encountered by stateless people. The event started with four short lectures on the topic, orchestrated by Professor Jo Shaw (University of Edinburgh).

The first speaker was Mr. Omar Alansari (Queens University, Belfast). Omar gave a very comprehensive overview of statelessness in international law, discussing the difficulties in achieving an accurate number of stateless people worldwide due to the fact that they are, by definition, not registered. He then discussed the causes of statelessness, such as discrimination; religion; gender; arbitrary denial of nationality based on political views; and gaps in nationality laws and geopolitical changes (as happened with the breakup of the former Soviet Union). He then focused on the two international conventions dealing with statelessness, underlining that both are not widely ratified. Next, he described the UNHCR mandate as relates to stateless people, which focuses on encouraging states to ratify the two conventions, and a campaign to end statelessness by 2024. Omar concluded his talk by describing the situation in Saudi Arabia, where there is an estimated total of over half a million stateless people.

Following this excellent outline of the legal framework on statelessness, Deirdre Brennen from the Institute of Statelessness and Inclusion spoke about “Gender Discrimination and Statelessness”. There are 28 countries where women are discriminated against in their ability to confer their nationality to their children, and over 50 where they are discriminated against in their ability to change and confer their nationality through marriage. Following this introduction, Deirdre screened testimonies by a woman named Deepdi, with whom she worked in Nepal, Deepdi’s husband and two daughters. They told their personal stories, describing the everyday difficulties arising from the lack of nationality such as the inability to have their own bank accounts, open a business and access certain educational institutions. Deepdi’s two daughters also spoke about their experiences of feeling different to their friends due to their limited opportunities in some areas. In conclusion, Deirdre spoke about the mainstream aspects of feminism nowadays, but said that a fight for women’s nationality is missing from this global movement, and there is a need to raise more awareness of it.

Next came a presentation by Nina Murray from the European Network on Statelessness (ENS), who spoke about the arbitrary detention of stateless people. The ENS initiated a project around Europe to try to understand the scope of the problem of detention of stateless people, which was derived from 6 country reports from around Europe. The project focuses on removal procedures, the point at which stateless people are most at risk of detention. Despite the fact that detention of migrants is becoming more common, there is very poor data regarding detention of the stateless since it is not always recorded, making it more difficult to protect them. Nina then discussed two countries, Poland and the UK, where there is a route for stateless people to become recognized, but both present often insurmountable obstacles on the path to recognition. For example, in the UK, those who have a criminal record cannot be recognized as stateless. This creates what Nina describes as a cycle of detention-release-detention, making it near impossible for people ever to start a normal life. The presentation concluded with recommendations for the way forward, such as finding alternatives to detention and developing a better procedure for identifying the stateless.

Finally, Cynthia Orchard from AsylumAid spoke about Statelessness in the UK. Being stateless in the UK makes it very difficult to work, access higher education, creates a higher risk of detention, and many other problems as access to housing. A procedure for recognizing stateless people was successfully introduced by the UK government in 2013. To apply to stay in the UK, a stateless person must fill out a 38-page application in English and provide many documents that are impossible to access if you are stateless. The Home Office expects stateless people to contact the embassy of a country to which they have some connection in order to obtain proof that they are stateless. AsylumAid often accompanies them in this process in order to act as witnesses, because the testimonies of the applicants are frequently deemed not credible. If the application is successful, the applicant is granted leave to remain in the UK for 2.5 years, which can then be extended. If leave is refused, the applicant can make a new asylum/statelessness application, or request judicial or administrative review. Cynthia discussed her concerns regarding the process of recognizing stateless people in the UK, which is extremely slow, provides no legal aid (in England and Wales), and has a very low rate of granting stateless status (around 5%).

Following this excellent series of lectures, three students discussed issues of statelessness from their home contexts. The first speaker was Josef Budde who moved to Guam in 2010. Josef discussed Guam’s history and its current status as a US naval base, where the local community has limited statehood. They are, on the one hand, US citizens, but on the other cannot vote for the presidency and have no representation in the Senate. Next, Aija Butane described the situation in Latvia. When Latvia achieved independence, it established in its nationality laws that those who were citizens of Latvia before the Second World War and their descendants would be recognized as Latvian, and those who moved during the Communist era would not. This has rendered many ethnic Russians in Latvia stateless. Aija discussed the very high requirements of the naturalization process for ethnic Russians to become Latvian due, among other things, to the high language requirements. However, the situation is slowly improving and now affects mostly those of the older generation. Finally, Dania Abul Haj described the complex nationality situation in Palestine. She described her personal experiences as a Palestinian from East Jerusalem travelling with an Israeli travel document despite not having Israeli nationality, while having a Jordanian nationality which is cumbersome and impractical to use. She described her experiences when registering her nationality with the University of Edinburgh and the bureaucratic system’s lack of understanding of the situation she must deal with every day.

The event concluded with a short Q&A session, where students brought up issues such as climate refugees, the nationality of children born in the Islamic State, and the ratification rates of the two statelessness conventions.

 

This workshop was made possible through the generous support of the Global Development Academy and the Global Justice Academy. We would like to give a special thanks to Dr Kasey McCall-Smith for her support; to Professor Jo Shaw for chairing the conference and to all the guests who travelled from all over the UK to speak at the event.

Keeping Guantánamo on the Map

Vivek Bhatt, a Student Ambassador with the Global Justice Academy (GJA), has written this blog following a panel event he attended at the Edinburgh Law School. The event, hosted by the GJA, explored the continuing relevance of legal and political issues arising from detention at Guantánamo Bay.

The United States acquired control of Guantánamo Bay in 1903, when it entered into an agreement with Cuba for the perpetual lease of the 45 square mile area.[1] Guantánamo Bay has since been operated as a naval base, and in the 1990s, it was ‘refashioned as a detention camp for those seeking asylum in the United States.’[2] From 1991 to 1996, more than 20,000 Cuban and 36,000 Haitian asylum seekers were interned in Guantánamo Bay.[3] And, in November 2001, merely days after the declaration of a ‘global war’ against terrorism, a US Military Order authorised the indefinite detention and trial of ‘enemy combatants’ at the camp. The US promptly began transferring individuals captured during its international counterterrorist operations to Guantanamo Bay. A total of 770 have been held there through the course of the war on terrorism. Only 8 men have been convicted, with more than 500 released during the Bush administration, 198 released during Obama’s presidency, and 9 killed in custody. 41 remain in detention, with 14 considered high value detainees and 26 designated as ‘forever prisoners,’ individuals whose knowledge of practices at Guantánamo Bay renders them too dangerous to be released.

The legal justifications provided for detention at Guantánamo Bay have been vague, at best. Those transferred to the camp are characterised as ‘enemy combatants’ under the laws of armed conflict, even though many have been captured outside areas of fighting.[4] The camp’s location in Cuba has, furthermore, allowed officials to assert that detainees are not entitled to the protections of the US legal system. According to Harold Koh, Guantánamo Bay is effectively a ‘rights-free zone’ constructed by the US. [5] Its detainees, writes Agamben, ‘[Are] legally unnameable and unclassifiable beings.’[6] After the release of the Senate Intelligence Committee’s report on CIA torture in 2014, it was finally confirmed that many of these detainees have been subjected to ongoing torture practices as part of their interrogation. The camp has, therefore, come to symbolise the legal and ethical dubiousness of the war on terror, with the ‘visceral image’ of the orange Guantánamo jumpsuit now engrained in public memory and popular culture.[7] Fifteen years on, however, International attention to the legal and political issues arising from detention at Guantánamo Bay is waning. Some, it seems, believe the worst is over, while others may simply have accepted that the goings on at the camp are part of an inevitable, ‘new’ reality of the war on terror.

This was the topic of ‘International Law and Guantánamo Detention Operations: Why it Matters,’ a panel event hosted by the Global Justice Academy and the Edinburgh Law School on 9 February 2017. The event aimed to examine the range of international law and human rights issues relating to detention operations in Guantánamo Bay, and was opened by Kasey McCall-Smith, lecturer in public international law at the Edinburgh Law School. Dr McCall-Smith provided an overview of the breaches of international law at Guantánamo Bay. She began by pointing out that the United States is not solely responsible for these breaches; the international community has facilitated the detention programme at Guantánamo Bay, and has failed to react to the grave violations of human rights that have occurred there. The violations of human rights at Guantánamo Bay begin with rendition flights, which transport terrorists to the camp for interrogation, and have been allowed to land at various airports throughout Europe. Various areas of international law are relevant to rendition, but particularly the prohibition of enforced disappearance. Once at Guantánamo Bay, detainees have been denied their right to visits from a consular official of their national State, protected under Article 36 of the Vienna Convention on Consular Relations.[8] As Dr McCall-Smith pointed out, various provisions of the International Covenant on Civil and Political Rights have also been violated in the course of detention and interrogation at Guantánamo Bay. These include the right to non-discrimination,[9] the right to liberty and security of person,[10] the right to be heard before a court,[11] and the right to be treated with respect for the inherent dignity of the person.[12]

Meanwhile, Jacques Hartmann, a senior lecturer in Law at the University of Dundee, spoke of his research into arbitrary detention in non-international armed conflicts. This topic is particularly relevant to Guantánamo Bay, given that most of those taken to the camp are captured as enemy combatants. To Dr Hartmann, the detention of suspected terrorists at Guantánamo Bay is symptomatic of a much larger problem: the lack of treaty provisions that explicitly address detention in non-international armed conflict. The lack of an express provision leads many to infer the authority to detain from the authority to use lethal force. Yet Dr Hartmann warned against such inferential reasoning, reiterating that any detention without legal justification is arbitrary, and is thus prohibited under both international human rights and humanitarian law.

As suggested above, the most widely discussed human rights violation at Guantánamo Bay is the continued use of torture. This was the focus of an address given by Dr Mitch Robinson, an international law specialist at the United States Department of Defense. He characterised Guantánamo Bay as a concentration camp; the only people detained there since November 2001 have been Sunni Muslim men. Dr Robinson spoke of one of his clients, a Saudi national who was accused of financing terrorism, and was in the CIAs’ torture programme for three and a half years. Though reports from early questioning suggested that he ‘does not appear to be a financing mastermind,’ the client was repeatedly deprived of sleep, sodomised and water-boarded, among other things. Robinson proposed a strategy for global human rights litigation relating to Guantánamo Bay. He refers to this strategy as ‘collateral advocacy’ for detainees’ human rights through domestic courts, regional human rights bodies, the UN’s human rights treaty bodies and high commissioner for human rights, international non-governmental organisations, civil society, and the application of legal or diplomatic pressure by other States.

Andrea Birdsall, lecturer in international relations at the University of Edinburgh, pointed out that as the international community has become aware of torture practices in Guantánamo Bay, the US government has moved along a ‘continuum of denials.’ This began with literal denial, a phase in which the Bush administration simply argued that the US Government does not commit acts of torture. This was, however, challenged by the release of the torture memos,[13] which made clear that torture was being used as a government policy. This led to ‘interpretive denial,’ in which it was argued that detainees were not subjected to torture, but to ‘enhanced’ or ‘increased pressure’ phases of interrogation that did not entail the ‘near-death’ experiences that would constitute violations of international or US domestic law. In the final stage, ‘implicatory denial,’ it was admitted that ‘mistakes had been made’ in the interrogation of suspected terrorists, but it was argued that the measures taken were justifiable in times of crisis. To Dr Birdsall, the US government’s treatment of terrorist suspects does not signify the demise of the anti-torture norm. Instead, the discourse surrounding Guantánamo Bay has legitimised the international law prohibition of torture, reinforcing a shared global understanding of the prohibition’s non-derogability.

The panel concluded that the programme of detention and interrogation at Guantánamo Bay warrants continued attention from scholars, lawyers, governments, and international civil society. There are three reasons for this conclusion. Firstly, violations of human rights are ongoing; Article 14 of the Torture Convention, for example, requires States parties to rehabilitate victims of torture, an obligation the US government has not fulfilled in relation to Guantánamo detainees.[14] Secondly, Guantánamo Bay is unlikely to be closed in the foreseeable future, and conditions may in fact worsen in coming years. And, finally, the prominence of human rights violations at the camp presents an opportunity for scholars and practitioners to reflect upon the state of the international rule of law, and to reify the value of the fundamental rights protected within the international legal order.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16(4) The European Journal of International Law 613, 616.

[2] Ibid.

[3] Ibid.

[4] Mary Ellen O’Connell, ‘The Choice of Law Against Terrorism’ (2010) 4 Journal of National Security Law & Policy 343, 353.

[5] Quoted in Joan Fitspatrick, ‘Spekaing Law to Power: The War Against Terrorism and Human Rights’ (2003) 14 European Journal of International Law 241, 242.

[6] Giorgio Agamben, State of Exception (Kevin Attell trans., University of Chicago Press, 2005) 3.

[7] This phrase was used by Mitch Robinson, a panelist at ‘International Law and Guantánamo Detention Operations: Why it Matters’, hosted by the Global Justice Academy and Edinburgh Law School on 9 February 2017.

[8] Vienna Convention on Consular Relations, signed 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) art 36.

[9] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2.

[10] Ibid art 9(1).

[11] Ibid art 9(4).

[12] Ibid art 10(1).

[13] See, for example, Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of International Law 365, 366.

[14] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 14.