Category: Inequalities

UDHR@75: Right to Education.

education, Inequalities, Peru, UDHR

 

Photo credit: Priscilla Du Preez

 

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Right to Education

Article 26 UDHR

‘Everyone has the right to education […].’

Article 26 of the Universal Declaration of Human Rights recognises the right to education. However, how true is it that everyone has a right to it and that it is a fundamental element for the full development of the human personality?

Education is a critical tool for people to fully develop their personality, talents and abilities, thereby boosting their chances of finding employment, participating more effectively in society and escaping the clutches of poverty. According to UNESCO, the potential reduction of the poverty rate by 50% is contingent upon ensuring all adults complete their secondary education.

Childhood and adolescence are pivotal stages in the life cycle, playing a crucial role in shaping an individual’s life trajectory and personal development. During these stages, children and adolescents prepare for the future and acquire, through education, the necessary tools to function successfully in their lives. When viewed from this perspective, a condition like poverty becomes a determining factor in people’s life trajectories. Additionally, the absence of access to quality education perpetuates the cycle of intergenerational poverty.

In other words, without education, the development and progress of people in society cannot be achieved. It is important to note that since the onset of the pandemic, there has been an increase in social inequalities. Consequently, it is imperative to address not only the existing structural problems within educational systems on a global scale but also the newly emerged or exacerbated challenges that have arisen due to the pandemic.

Three Peruvian children and a llama smiling to the camera

Photo credits: Alexander Schimmeck on Unsplash

At present, children and adolescents are excluded from education for various reasons and within them poverty continues to be one of the main barriers. In Peru, it is possible to find differences between access to education at all levels, particularly between individuals living in poverty and those who are not. According to a recent report from the National Institute of Statistics and Informatics (INEI in Spanish), in 2021, 37.6% of individuals who lived in poverty, aged 15 and over, managed to study at most one year of primary education or they had no primary education level at all. In contrast, in the non-poor population, this percentage was 24.6%. The figure illustrates the insufficient guarantee of access to the fundamental level of primary education. To address this issue, the Peruvian State should adopt measures to reduce the disparities in the effective enjoyment of the right to education between the population in a situation of poverty and those who do not face that condition.

Furthermore, it remains a pending task for governments across the world to reverse the devastating effects of the pandemic on education. The present state of education is of significant concern because it not only constitutes a breach of this right, but the consequences of not achieving the learning outcomes extend into the adult lives of students, potentially impeding their aspirations and life goals.

 

Photo of the author, Andrea Parra Estela

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Andrea Parra Estela, a UoE LLM in Human Rights and a qualified lawyer in Peru. Andrea is passionate and enthusiastic about the fields of Human Rights and Constitutional Law. She works as an activist and project coordinator at Asociación Civil Kumpay, a non-governmental organisation based in Peru.

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UDHR@75: Article 14 and Climate Refugees

Climate Change, Human rights, Inequalities, Refugees, UDHR

Photo credit: Priscilla Du Preez

This blog forms part of a series celebrating the 75th anniversary of the Universal Declaration of Human Rights (UDHR). Recognising the numerous conflicts and the daily breaches of human rights taking place across the globe, this series aims to highlight both the challenges and the opportunities to respect, protect and fulfil the human rights elaborated in the UDHR.

 

 

Article 14 and Climate Refugees 

Article 14(1) of the UDHR

‘Everyone has the right to seek and to enjoy in other countries asylum from persecution.’

Article 14 of the Universal Declaration of Human Rights (UDHR) states that people have the right to seek asylum from persecution. This right traditionally applies to those who are persecuted due to race, religion, nationality, membership of a particular social group or political opinion, as specified in the subsequently adopted Refugee Convention. However, the understanding of what necessitates seeking asylum has evolved over the last 75 years since its inclusion in the UDHR. In the 21st century, this is now changing again to adapt to new challenges such as climate and environmental displacement. According to the Institute for Economics and Peace, current predictions suggest that by 2050, there could be 1.2 billion people displaced from climate and environmental threats, making climate refugees a ‘top priority’ for the UNHRC going forward.  

Throughout its history, the right to asylum in the UDHR has evolved to encompass situations beyond its original understanding. Internally displaced persons (IDPs) are an example that demonstrates the dynamic nature of the right to asylum. IDPs are individuals who are forced to relocate on similar grounds as refugees, although they do not cross international borders. Despite bearing similar protection needs described in Article 14, internally displaced persons (IDPs) were not traditionally considered under the asylum framework. However, international protection gradually became applicable for IDPs, expanding the grounds for receiving protections under this right. Additionally, this framework has recently been applied to people displaced by natural disasters. Although the term “refugee” has been avoided, the support processes share many similarities with those of refugees and have therefore also been addressed under this framework. 

The ongoing changes to international protection needs that emerge as a result of climate change threats suggest the necessity to broaden the scope of Article 14. Inhabitants of certain island nations, such as Kiribati, have already needed international protection due to displacement from rising sea levels. However, with a traditional understanding of asylum, it remains difficult to extend protections to people displaced by environmental factorscreate an applicable framework to resolve the discrepancy between the need and access to protection. The current use of the asylum regime in state practice and the acknowledgement of the limitations of a persecution-based understanding of protection demonstrates both the opportunities and challenges of utilising this framework for future problems. 

The future is expected to bring an increasing number of individuals impacted and displaced by climate change and environmental threats. As a result, it is imperative to develop how international law can support these individuals. The past success of Article 14 and the broader asylum framework to adapt dynamically to changing necessities demonstrates its applicability in addressing climate refugees. Since the need for international protection remains the same from the traditional understanding of refugees to climate refugees, Article 14 is becoming highly significant in the search for solutions to this global problem.  

 

As part of the GJA UDHR@75 celebration, we invited present and past students to contribute their personal reflections on the relevance of the UDHR today. This blog is by Şükrü Kağan Sürücü and Lucy Tomkins. They are PhD Law Candidates at the University of Edinburgh.

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Human Insecurity: Food Insecurity in the UK during COVID-19

Covid-19, food, food security, ICCPR, ICESCR, Immigration, Inequalities, Pandemic, Refugees, right to food, Scotland

Photo to the authorThis is the second blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. The series celebrates the top five blogs selected in a class competition. This blog is by Leah Cowling. Leah did her undergraduate degree in Philosophy and Politics at Edinburgh before starting the LLM in Human Rights. She is currently working on a project to complete settled status applications for EEA nationals living in Scotland. You can follow Leah on Twitter @_leahcowling.

 

No One Should Go Hungry Because of Their Immigration Status: Food insecurity in the UK during COVID-19

It wasn’t long into the UK’s first lockdown that the promise of the COVID-19 pandemic as a great leveller began to ring hollow. It is now clear that the effects of the pandemic have been experienced asymmetrically across the globe – demonstrating that COVID-19 does discriminate, in that it exacerbates existing inequalities.

Described as the best vaccine against chaos, food takes on a central role in times of crisis. During this pandemic, food has been revealed to be the lynchpin upon which other rights depend. Footballer Marcus Rashford’s successful campaign to force government U-turns on the decision to halt free school meals highlighted one aspect of this interdependency; without nutritious food, children cannot exercise their right to education.

COVID-19 has also demonstrated that the distribution of food is microcosmic of larger structural, political, social and economic inequalities – as the wealthy stockpiled pasta, foodbank use skyrocketed, with the independent food bank charity IFAN reporting a staggering in use.

While headlines were dominated by Rashford’s campaign to reinstate free school meals, the situation of food insecurity within migrant communities during COVID-19 often appeared to be an afterthought. Following the threat of a legal challenge, the free school meals policy was partially extended in April 2020 to some individuals without formal immigration status and subject to No Recourse to Public Funds (NRPF) conditions, on the grounds that ‘no child should go hungry because of the immigration status of their parents’. No doubt a welcome challenge, this statement stops short of the universal acknowledgment that no one should go hungry because of their immigration status.

Graphic of shopping bags.

Statistics from the Trussell Trust. Illustration by Issey Medd

Underreported is the experience of food insecurity by migrants, refugees and asylum seekers in the UK whose access to affordable, nutritious and culturally appropriate food has been threatened by the existence of the work ban and inadequate state support. For many, the closures of community centres, charities, churches and support groups due to lockdown restrictions represented the severing of a crucial lifeline. Reports from March 2020 suggested that approximately 1 million undocumented migrants were plunged into severe food insecurity, with many forced to access food banks.

Numerous volunteer-run, grassroots migrant support groups, such as the Unity Centre in Glasgow, responded to the increased need with deliveries of essential food and medicine. This support was given to all those in need, including to those isolating in cramped asylum accommodation with young children. This community-led response is emblematic of a larger problem, in which support from the third sector allows the government to evade accountability for failing to protect fundamental rights.

The legal basis of the right to food

The right to food is a clearly defined legal right, articulated in a number of international human rights instruments, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) – both of which the UK is a signatory to. The right to food obliges governments to enact laws which respect, protect and fulfil the right to food, to ensure that all people are able to feed themselves in dignity. Crucially, the right to food is universal, applying to all individuals within a state’s borders, regardless of immigration status, and without any form of discrimination.

Scales with food on either side demonstrating inequality in food.

Illustration by Issey Medd

In its 2016 report on the UK, the Committee on Economic, Social and Cultural Rights (CESCR) which monitors the implementation of ICESCR, noted its concern about the lack of adequate measures ‘to address the increasing levels of food insecurity […] and the lack of adequate measures to reduce the reliance on food banks.’ Notably, while commenting on the inadequate protection of the right to health among migrant populations, the report fails to comment specifically on the food insecurity experienced by migrants. This omission reflects a trend in which the issue of food insecurity in migrant communities is overlooked.

Considering possible solutions

Clearly, increased foodbank capacity is not a solution to rising food insecurity amongst migrant populations. Foodbank use represents the tip of the food insecurity iceberg; a symptom of pervasive structural barriers to the ability to access food in dignity. As such, we should not confuse food charity with the right to food.

Statistics demonstrating the difference between food buying power on Universal Credite and Asylum Seekers SupportIn recognition of this, foodbank charity Trussell Trust recommended a £20 uplift to Universal Credit payments, which is expected to be extended in the March 2021 budget. While the £20 uplift has reduced the reliance on foodbanks for many, this policy continues to exclude those who are unable to access Universal Credit on account of their immigration status.

A possible legal route is through incorporation of the right to food in UK law – advocated for by civil society groups, such as Sustain, Nourish Scotland and the Scottish Food Coalition. It is argued that explicit recognition of the right to food at the domestic level would help individuals articulate demands on the government, and create more legal avenues to challenge government policy.

Incorporation of the right to food in Scotland appears increasingly likely with its proposed Good Food Nation Bill. It is encouraging to see explicit recognition of those who were ‘already food insecure before the crisis hit, including many refugees and asylum seekers who have no recourse to public funds’, but the Bill must be supplemented with specific and detailed analysis of nutritional vulnerabilities experienced by migrants in Scotland.

Looking forward

An important step towards food security following the effects of COVID-19, the incorporation of the right to food in Scotland offers an opportunity to embed the right to food within in a broader rights-based framework.

However, full realisation of the right to food will require appreciation of the linkages between hostile environment policies and food insecurity, as well as the multiple layers of discrimination faced by migrants in the UK. This must include calls for the removal of the NRPF immigration condition, and for increased asylum support payments in line with Universal Credit.

An integrated, person-centred, rights-based approach to food security in a post COVID-19 landscape will require commitment to the uncontroversial statement that no one should go hungry because of their immigration status.

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Human Insecurity: COVID-19 and Women’s Rights

Covid-19, Gender, Health, Health and healthcare, Human rights, Inequalities, Pandemic, Women

Photo of the authorThis is the first blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Alexandra Oancea. Alexandra is current reading the LLM in Human Rights at the University of Edinburgh. She is from Brussels, Belgium, and holds an LLB in European Law from Maastricht University, the Netherlands.

 

COVID-19 and Women’s Rights: The Negative Impact of the Pandemic on Women’s Access to Sexual and Reproductive Health Services

As evidenced by previous global health crises such as Zika and Ebola, pandemics exacerbate pre-existing gender inequalities, and the COVID-19 outbreak is no exception to this trend. The United Nations was warning governments as early as April of 2020 that the impacts of COVID-19 were disproportionately falling on women and urged them to adopt a gender-sensitive response to the crisis. In the field of healthcare, as resources are being diverted and lockdown restrictions tightened, women’s access to adequate health services is being heavily threatened. Within this context, this post will disclose how the current pandemic is endangering women’s access to sexual and reproductive health (SRH) services, how this in turn contravenes their fundamental human right to health, and why a gender-sensitive response to the pandemic is therefore required.

COVID-19 and Women’s Access to SRH Services

While ensuring access to SRH services to women has always been a challenge, COVID-19 intensifies the issue in many ways. As acknowledged by the World Health Organisation, following the outbreak, health systems around the world became overloaded, causing governments and health facilities to prioritise certain health services, while scaling back others. This has led to a reallocation of funding and resources for SRH services to the pandemic response. For example, in countries such as Romania and Slovakia, the breakout of the pandemic led governments to deprioritise abortion services, no longer deemed as essential. Furthermore, the measures imposed by States to limit the propagation of the virus meant that women in various contexts were no longer able to physically access time-sensitive services. Indeed, travel restrictions and stay-at-home orders deprived women

Two women in facemasks

Photo by Tim Douglas

and girls of family planning services, and in countries where abortion is illegal or strongly restricted, prevented women and girls from travelling to neighbouring countries to undergo a procedure.[1] According to Marie Stopes International, a NGO providing contraception and abortion services around the world, the pandemic has prevented 1.9 million women to access their services between January to June 2020. The pandemic also disrupted supply chains, resulting in shortages in contraceptive products and unavailability in pharmacies. Additionally, the pandemic has been leveraged in some countries to limit access to services such as abortion.[2] In Poland and Texas, lockdown was used to introduce abortion restrictions and ban procedures.[3]

These recent developments highlight the lack of attention that is currently afforded to SRH services by governments around the world. This neglect has dire consequences for women’s health: it can lead to a rise in maternal and new-born mortality, unwanted pregnancies, sexually transmitted diseases such as HIV, and unsafe abortions.[4] In addition, a failure to address women’s SRH needs goes against States’ international human rights law (IHRL) commitments, and more specifically their obligation to protect, respect, and fulfil women’s right to health and provide them with adequate access to healthcare.

Access to SRH Services as a Fundamental Human Right

The right to health is protected under various IHRL documents being widely ratified. For example, the United Nations International Covenant on Economic and Social Rights (ICESCR) recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further reiterates the importance of this right by placing a duty on states to eliminate discrimination against women in the field of healthcare. According to the CEDAW Committee, the body monitoring the implementation of CEDAW, this duty requires states to ensure that women have timely and affordable access to healthcare services, including SRH, and to eliminate barriers in accessing such services. Considering the developments outlined above, such duty seems to have been disregarded by governments when fighting COVID-19. However, while states are allowed to derogate from some of their human rights obligations in emergency situations such as the current pandemic, there are limitations. Under international law, emergency measures must, among others, reflect the principles of equality and non-discrimination. In other words, states are under a duty to provide women with access to SHR services, and this is true even during a global pandemic. Failing to do so would be discriminatory and would run counter to states’ international law commitments. In order to fully observe women’s rights, states therefore need to be mindful of this legal framework when designing measures to stop the spread of the virus. As evidenced below, this will require them to incorporate a gender-sensitive perspective into their COVID-19 responses.

The Way Ahead: A Gender-Sensitive Approach to Tackling the Virus

As declared by the United Nations, “states have a responsibility to ensure that everyone is protected from the virus and its impact” and “this may require special measures and protection for particular groups most at risk or disproportionately impacted”. In the context of women, protecting them requires governments around the world to integrate a gender perspective within their COVID-19 responses, something advocated by the World Health Organisation. This would allow states to better understand women’s needs and the negative impacts they experience during this pandemic. To do so, UN Women recognises the need for governments to issue policies protecting women’s SRH rights. One step in that regard is making sure that SRH services are identified as high-priority categories when deciding which services will be prioritised during the pandemic. Additionally, in order for women to physically access those services despite lockdown and travel restrictions, various measures could be taken by governments. Those include allowing women in need

Women holding a sign reading 'The future is equal'

Photo by Flavia Jacquier

of SRH services to be temporarily exempted from travel restrictions in order to ensure access. Furthermore, legal barriers to telemedicine services and at-home abortion pills should be removed, and their use should be promoted by States.[5] This step has been taken in the United Kingdom where women are now able to receive tele-consultation and to self-administer abortion drugs at home. Another way to promote women’s SRH rights is to remove any unnecessary requirements to access SRH services such as multiple provider authorisation, waiting periods and third-party consent for abortion procedures.[6] Finally, states need to include women at the decision-making table. Indeed, as reiterated by the UNFPA, women are more likely to have less decision-making power regarding the policies and decisions taken to respond to the pandemic, leading their SRH needs to be largely unmet. It is therefore essential for them to be included and to ensure their equal participation in all policy and decision-making regarding the crisis, something that was stressed by the CEDAW Committee in its Guidance Note on COVID-19.

However, the above-mentioned proposed measures merely constitute short-term ways to alleviate the issues women are facing during this pandemic, and it is still essential for States to engage in larger-scale reforms. In fact, the inequalities discussed in this post were already prevalent pre-COVID-19 and were simply exacerbated during the pandemic. In this way, the current situation reinforces the call for government to not only adopt a gender-sensitive response to the current global health threat, but also to develop a well-developed system to fight similar crises in the future in a way that is mindful of women’s experiences. Only this approach, which ensures the inclusion of women and acknowledges the different ways they experience the pandemic, can ensure that States will design measures impacting both men and women in an equal and non-discriminatory way, in accordance with their obligations under IHRL. While promising gender-sensitive practices are emerging, they are far from being uniform, and as lockdown measures and COVID-19 restrictions remain the norm around the globe, it is essential for States to take more active steps to acknowledge and respond to women’s specific needs.

 

[1] Julia Konowrocka, ‘Let’s Talk About Sexual and Reproductive Health and Rights Not Fully Implemented Before Covid-19 & Suspended during the Pandemic’ (Equinet, 14 September 2020) <https://equineteurope.org/2020/lets-talk-about-sexual-and-reproductive-health-and-rights/> accessed 26 February 2021.
[2] Center for Reproductive Rights, ‘Sexual and Reproductive Rights During COVID-19: Response and Beyond’ (June 2020) 2.
[3] Audrey Lebret, ‘Covid-19 pandemic and derogation to human rights’ (2020) 7(1) Journal of Law and the Biosciences 14.
[4] United Nations Population Fund (UNFPA), ‘Covid-19: A Gender Lens’ (March 2020) p. 7; Organisation for Economic Co-operation and Development (OECD), ‘Women at the core of the fight against Covid-19 crisis’ (2020).
[5] Amnesty International, ‘Exposed, Silenced, Attacked: Failures to Protect Health and Essential Workers during the COVID-19 Pandemic’ (2020).
[6] Center for Reproductive Rights (June 2020) 1.

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The Added Benefit of Incorporating ICERD in Scotland

Human rights, Incorporation, Inequalities, race, Scotland

The global events occurring in the spring and summer of 2020 have ushered issues of racial discrimination and inequity into the foreground of social discourse. The COVID-19 pandemic has disproportionately impacted historically marginalised populations and highlighted pre-existing inequalities, Scotland is no exception. The subsequent murder of George Floyd by police in the United States ignited a Black Lives Matter movement around the world. If Scotland wishes to be a global leader in human rights, they must start by ensuring that any future rights incorporation will benefit everyone equally, regardless of race, colour, descent or national or ethnic origin. An effective incorporation of the rights and obligations the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) would be a firm step in this direction. This blog examines why a thorough incorporation of ICERD into domestic law is a necessary next step for Scotland in eliminating racial discrimination.

Access to Remedy:

ICERD demands effective remedies for Convention breaches. While the Equality Act 2010 is meant to provide this access to remedy, there are a number of factors which inhibit its effectiveness in addressing racial discrimination. To begin, the Act and its related Public Sector Equality Duties (PSEDs) in Scotland have a heavy bend towards gender-based discrimination. This focus is then reflected in the respective success rates of gender-based discrimination claims in comparison to racial-discrimination claims.

There are also a number of barriers which might prevent historically marginalised demographics from accessing justice. Such barriers might be economic, meaning not only that they cannot afford litigation, but also that they might not be able to get the time off of work to attend hearings. Depending on the demographic, these barriers might also include language and literacy. Additionally, those who have experienced an intersectional form of discrimination must choose to file under one category or both. This is problematic as intersectional discrimination is not merely additive. Instead, the forms of discrimination endured are distinct from those experienced by an individual who has only one such identity. For example, a woman of colour will experience discrimination that is distinct from the discrimination experienced by white women or by men of colour.

The underlying objective of ICERD is that access to, and quality of rights protections must be equal for everyone regardless of race, colour, descent, or national or ethnic origin. ICERD and the corresponding work of the Committee on the Elimination of Racial Discrimination (CERD) together address many of the aforementioned barriers. Due to the broad nature of the Convention’s articles there is likely to be debate surrounding enforceability, particularly with relation to economic, social and cultural rights. But much work has been done on the ways in which a balance might be struck which acknowledges resource realities while also reaping the many benefits of adequately protecting these rights. Further concerns about an unmanageable number of cases has been addressed through the suggestion of using test cases to manage consistent or common rights violations.

Mandated Adherence by Public Actors: While access to remedy has a key role in effective human rights protection, in an ideal world litigation would not be necessary as public and private actors would not be engaging in discriminatory behaviour. By incorporating human rights into domestic law, the government would signal to public and private actors that Scotland is moving towards increased accountability for actions which directly, or indirectly amount to racial discrimination.

Incorporation as a Public Commitment:

Committing to the incorporation of a human rights treaty, particularly an incorporation which is both full and direct, demonstrates a firm commitment to the rights and obligations contained in that treaty. The Scottish commitment to incorporate the United Nations Convention on the Rights of the Child (UNCRC) has demonstrated the potential for such a commitment. It has generated widespread engagement with civil society, academics, public officials, and even the private sector.This demonstrates substantial potential for incorporation to be utilised as an awareness raising tool which might initiate the decisive societal shift that the Scottish government has acknowledged as necessary to achieve racial equity. Such commitment to incorporating human rights treaties through various methods also substantiates the Scottish Government’s asserted objective to be a global leader in human rights.

Taking a Holistic Approach to Tackling Racial Discrimination:

Although the Scottish Race and Equality Framework and Action Plan also acknowledge the need for these actions, as policy the Framework is subject to changes in politics. Alternatively, incorporation would cement these rights and obligations into law which contributes to sustainable change by mandating adherence. For example, in Colombia which has incorporated human rights through its constitution, the compliance mechanism for human rights violations enables courts to order public authorities to uphold their obligations. Yet, even changes to the law cannot achieve sustainable change on their own.

Scotland’s Public Sector Equality Duties (PSEDs) demonstrate the potential to use legislation to ensure that public institutions are considering the potential discriminatory effects of their actions. But these duties also provide an excellent example of the fact that effectively addressing inequity requires the combined efforts of law, policy, and practice. For example, understanding racial discrimination requires gathering accurate, up to date and disaggregated data to inform solutions. Ensuring the sustainability of rights protections requires training public officials and law enforcement agencies. Effective engagement with historically marginalised communities requires establishing a relationship of trust, for which a key component is acknowledgement of the wrongs committed against that group in the past. Although an incorporation of ICERD would focus on the legal aspect, it has the potential to also serve as a catalyst which ignites the needed corresponding changes to both policy and practice.

Incorporating ICERD would require a thorough re-examination of racial discrimination and inequality in all areas of Scottish life. Through a societal review with such depth and breadth as would be required by a genuine incorporation of ICERD, Scotland might begin to identify and eradicate an issue as deeply entrenched and systemic as racial discrimination.

 

This post is by Emma Sullivan who is currently reading the LLM in Human Rights at Edinburgh Law School. She is a US qualified lawyer.

 

The Chilean Crisis

Chile, Constitutional Change, Freedom of Expression, Human rights, Inequalities

This blog, by Valentina Rioseco Vallejos, concerns the current Chilean crisis. It aims to provide the context under which the crisis is occurring, while making reference to human rights violations committed by Chilean State actors. It also discusses the latest developments in the crisis.

Valentina is a first year PhD student at Edinburgh Law School. She is a Chilean licensed lawyer and holds an LLM in Human Rights from the University of Edinburgh.

 

The context

The Chilean crisis began three weeks ago, with students jumping metro turnstiles in Santiago in protest against a price rise of the metro. The government responded to the protests with violent repression which, in turn, led to riots. Rapidly, the protests where reproduced in other cities and they continue to occur today. Protesters argue that the problem is not only the metro fare, but the structural inequalities that do not allow people to afford their basic living costs. Scholars and politicians argue that protests are based on the need for a new constitution and this idea is now gaining force.

Chile is still ruled by the Political Constitution adopted during the dictatorship of General Pinochet, which creates the rules for maintaining a neoliberal economic system. The Constitution was highly influenced by the Chicago Boys, a group of Chilean economists who studied with Milton Friedman. The Chilean constitution does not guarantee effective access to fundamental rights, such as the right to education, the right to health and decent pensions. It also restrains the will of the majority. For example, it demands a legislative supermajority to approve organic laws. Furthermore, workers live with a very low minimum wage (£217.00 per month), which is not enough to cover basic needs.

On 19 October, the Chilean president Sebastián Piñera gave a public speech regarding the social protests. He began his speech declaring “we are at war against a very dangerous enemy”. The rest of his speech continued in the same line, framing protests as acts of delinquency and solely focussing on the riots. He barely mentioned that the majority of the protests were peaceful throughout the country and he did not refer directly to the substantive claims raised by protesters. Consequently, he declared a State of Emergency in several cities of the country, which lasted until 27 October. The Chilean State of Emergency allows the President to delegate security tasks to the military. It also allows for the restriction to freedom of movement within the country. According to the declarations of the President, the State of Emergency would allow protecting both, the security and the property of the Chilean citizens, against criminals and rioters. Protesters responded with massive peaceful demonstrations bearing signs with the phrase “we are not at war”. The protests are also characterised by “Cacerolazos”, which means people beating their pots with wooden spoons.

Human rights violations

During the State of Emergency both, the military and the police committed grave violations to human rights and riots where not properly controlled. These violations included the right to life, the prohibition of torture, the right to peaceful assembly, freedom of expression and the right to liberty and security. As the State of Emergency is now finished, military personnel are no longer in the streets. However, the police continue to commit human rights violations and use disproportionate force against protesters. By 30 October 2019, 22 deaths had occurred in the context of the social protests. Five of these deaths were committed by state agents. The Chilean National Institute of Human Rights (INDH) has filed complaints in respect of these deaths. One of the deaths was caused by gunshots of military personnel in Curicó, a city where no State of Emergency was declared. There are also victims being run over by state vehicles, killed by rubber bullet wounds and by beatings. By 4 November, the INDH had filed 181 complaints against state agents, of which 152 allege torture, maltreatment and sexual abuse. The INDH also reported 4364 detentions with 479 of these detainees are identified as children and adolescents. In addition, it stated that 1659 people have been injured, of which 160 suffered eye wounds caused by gas pepper bombs and shootings. Journalists and photographers have also been beaten, shot and detained. On 29 October, a human rights observer from the INDH was shot by the police six times in his leg. In other contexts, human rights treaty bodies have already reproached the violent and repressive responses by the Chilean police in contravention of Chile’s international human rights obligations (CRC, para. 36 and CAT, para.22). The human rights violations committed during these events demonstrate that the protocols of the Chilean police and military personal have not improved.

International and regional organisations, together with non-governmental organisations are watching the Chilean crisis. The High Commissioner of Human Rights (HCHR) declared, “there are disturbing allegations of excessive use of force by security and armed forces” and expressed alarmed at reports stating that “some detainees have been denied access to lawyers, which is their right, and that others have been mistreated while in detention”. A team of the HCHR is currently being deployed to the country. They are examining the human rights allegations, meeting with various actors and gathering information on measures taken by the Government to address the situation. The Inter American Commission on Human Rights (IACHR) condemned the excessive use of force applied by police and military forces and rejected all forms of violence in the context of the ongoing situation in Chile. In addition, it declared to have received complaints regarding detentions where state agents acted with a disproportionate use of force, harassed children, sexual abused protestors, and subjected still more to torture or other ill-treatment. Thus, it called a public hearing concerning the human rights situation in Chile. Human Rights Watch and Amnesty International also condemned the excessive use of force. The latter announced a research mission to document grave human rights violations.

Latest developments

As of time of writing, the political situation seems to have moderately improved. However, the numbers of human rights violation victims reported by the INDH continue to increase every day. President Piñera changed his cabinet and affirmed that would implement some new social measures. However, he is currently governing as a leader of the right, thus the economic and political structure that maintains inequalities remains the same.

The political debate is now focussed on whether the Constitution should be modified and if so, how. Chileans are currently organising citizens assemblies (cabildos ciudadanos) in which they are discussing how to change the Constitution and the pension system. The government has not yet delivered any proposal concerning these demands.

Chilean civil society has, for years, anticipated this type of social and political confrontation. Inequalities and abuse are too evident across Chile. It is encouraging that the country finally woke up and demanded change. As Chileans watching from Scotland, however, we remain deeply concerned about the wellbeing of our fellow citizens, our families and our friends.

 

This Blogspot is the result of conversations and information shared between Chilean citizens living both in Edinburgh and in Chile. To all of them, thank you.

‘We Need to Talk About an Injustice’: Bryan Stevenson delivers Ruth Adler Lecture at University of Edinburgh

Crime and Criminal Law, death penalty, Democracy, Edinburgh, Global Justice Academy, Globally Just Leadership, Human rights, incarceration, Inequalities, Law and Legal, liberty, Punishment, race, USA, Victimisation

Law PhD Candidate, Vivek Bhatt

In this guest post, Law PhD Candidate, Vivek Bhatt, reflects on Bryan Stevenson’s visit to Edinburgh Law School to give the 2019 Ruth Adler Memorial Lecture, and to receive an honorary doctorate as part of the School’s summer graduation ceremony.

Bryan Stevenson (c) Nick Frontiero Photography 2019

 

 

 

On 8 July 2019, the Global Justice Academy hosted a lecture by Bryan Stevenson, recipient of an honorary doctorate at the Edinburgh Law School.  Stevenson is founder of the Equal Justice Institute (EJI) in Montgomery, Alabama, and a clinical professor at the NYU School of Law. Stevenson works as a legal representative for disadvantaged and marginalised individuals, particularly young and poor people who are on death row or serving life sentences. He and his colleagues at the EJI have achieved the exoneration or release of over 125 individuals on death row. Stevenson is also the author of Just Mercy: A Story of Justice and Redemption,[1]  which was a New York Times bestseller and won the Carnegie Medal for the best nonfiction book of 2014.

Stevenson’s lecture circulated around a question that is as succinct as it is complex: how do we, as human rights advocates, address injustice? Firstly, he said, we must create justice by becoming proximate to those suffering inequality and injustice. Recounting his relationship with his grandmother, who wished that Stevenson would always be able to feel her embracing him, the skilful orator argued that we must know and seek to understand those who suffer injustice in order to affirm their humanity and dignity. Thus, human rights practice is not about the deployment of legal arguments from afar, but rather about stepping away from one’s legal expertise and embracing those who suffer violations of dignity.

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Off the Record: Medical Records in the 9/11 Military Commission

Blog, Global Justice Academy, Guantanamo, Health, Human rights, Inequalities, International Law, Law and Legal, Punishment, Terrorism, Torture

This post continues the blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Personal Data and National Security: Medical Records in the 9/11 Military Commission

Almost since the inception of the 9/11 military commissions, defense lawyers have fought to obtain the full medical records of their clients. In any normal court, a client’s ownership and access to their personal medical records would go unchallenged. The right to privacy is fairly clear on this. Whether relying on the Fifth and Fourteenth Amendments of the US Constitution or article 17 of the ICCPR, individuals have the right to control their personal medical information with some exceptions (notably those outlined in HIPAA in the US). However, in the largest criminal justice trial in US history, access to medical records is shrouded in secrecy and national security privilege is reinforced through redactions to files covering even the simplest of medical treatment, such as providing ibuprofen for pain relief.

Joint Task Force Guantánamo, the cross-branch military force created by the US Department of Defense to run detention operations in Guantánamo, is responsible for assessing and delivering care for the medical needs of all detainees. As a result, it maintains full medical records on the 40 men still held in the detention facility. Government prosecutors also have copies of the full records. However, neither the defendants, nor their attorneys, are able to gather a full account of their medical information because full access is consistently rejected by the Government in the name of national security.

The complete medical records sought begin with those documenting the intake of the defendants in 2006 when they arrived in Guantánamo following years on CIA black sites. The records covering the medical treatment of the five 9/11 defendants is crucial to the case due to the systematic torture they endured at the hands of the CIA and the statements of guilt some are alleged to have given to the FBI shortly after arriving in Guantánamo. The physical and psychological impact of the enhanced interrogation techniques on the men, as documented in the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Summary Report) further speaks to a range of issues that are highly relevant to the trial, not the least their ability to participate in their own defence and their competence to even be in the dock.

A primary point of contention comes in response to the public availability of the record of torture, inhuman and degrading treatment the defendants suffered on black sites. The SSCI Summary Report is very clear on the issue of the defendants’ treatment. The CIA shredded all pretence in terms of legality with regard to the treatment of these five men and many others. Constructing an understanding of their physical and mental states in the lead up to the FBI interrogations in January 2007 will shed light on whether those statements may be excluded as torture evidence, an issue that remains unclear at the close of the 35th round of pre-trial hearings.

Redacted medical records

While there is a great amount of writing and authority on the issues of confidentiality, privacy and security of medical records, those discussions are predominantly focused on keeping personal records closed for the benefit of the patient. In the 9/11 case, the reverse is true. Defense teams have spent years trying to gain full access to their clients’ personal medical files. In many instances it is not only about their variable litigation strategies but also about helping explain their client’s individual health issues to them more fully. As has often been raised in court, a number of the defendants suffer conditions akin to post-traumatic stress disorder and there have been suggestions of brain damage following MRI scans, all indicia of the ill-treatment they endured in CIA captivity.

Trial counsel for the government has turned over 47.000 pages of medical history to the defendants relating to medical, psychological, dental or therapist visits since their arrival in Guantánamo. The problem is that all of the documents are redacted to some extent and predominantly it is medical personnel identifiers that are removed. With the exception of seven real name examples Government counsel acknowledged as ones he had ‘missed’ in error, all names have been replaced by unique medical identifiers (UMIs) or redacted to obscure the identification. The UMIs include designators such as Dr Shrek, SMO (Senior Medical Officer) and Dr 10. More vexing for defense counsel is the fact that several of the UMIs are not unique at all. As counsel argued before the commission, in the course of their examination of the records provided by the Government, it has become clear that the same UMI was used by different medical professionals in some cases and in others individuals had used different UMIs in a haphazard way. This inconsistency frustrates defense efforts to piece together a clear picture of their clients’ physical and mental states when they arrived fresh from their years on black sites as they are unable to corroborate the information derived from the incomplete reports.

Persistent threats to medical personnel?

The Government contends that these men pose a direct threat to the safety of medical personnel and their families. It is an interesting argument considering the defendants’ long-term address in the top-secret, maximum security Camp 7 where the very limited communication they have with the outside world is subjected to extensive security and classification reviews. Government counsel went as far as to claim that threats against medical personnel are made ‘practically every day, certainly at least once a month’, suggesting that they were made by the men for whom the military medical corps has provided care for roughly 11 years. It is unlikely that evidence of these ‘threats’ will ever be seen by the public. Such evidence, if it exists, may be proffered through ex parte submissions to the judge anytime prosecution invokes the national security privilege. Defense efforts to substantiate claims of the threats have been fruitless and, according to counsel, none of the few medical personnel that have been tracked down have suggested that they were ever threatened in the course of their treatment.

In-court exchanges suggest that all government explanations of medical records are to be taken at face value despite multiple proffers of error by defense counsel. The more bizarre fact is the Government admission in previous commission exchanges that medical records including the names of medical professionals, is not classified material. Even if classified, or marked as sensitive, the legal team members all have the clearance to view the full documents. In a case heavily dependent on classified material, it is not uncommon for the cleared lawyers to access materials for investigation purposes without sharing the information with their clients. It, therefore, boggles the mind that the Government continues to deny defense counsel information necessary to fully investigate each defendant’s case. It seems solely obstructive that defense counsel is forced to argue for access to full medical records bit by bit as the responsive records provided after each successful motion provides only a bit more information than before. Very simply, the Government should provide unclassified information when requested through discovery.

The tussle over complete medical records appears to be a circular exercise. No logic can explain the stalemate in relation to complete medical records for the 9/11 defendants. And with a third judge due to assume control of the case at the 36th round of hearings in June 2019, the issue is likely far from over.

Global Justice Academy Spring School: Using Critical Discourse Analysis in Community Settings

Edinburgh, education, Engagement, Global Justice Academy, Inequalities, Local-Global Connections, Students participate!, Theory, Understanding Global Justice

In April 2018, the GJA sponsored its first ‘Spring School’ in a collaboration with Moray House School of Education. In this post, Spring School Co-organiser and GJA Management Group member, Dr Callum McGregor, reflects on the Spring School’s innovative community-university partnership, which fostered strong links with local organisations and social justice practitioners. It is hoped that a similar Spring School will run again next year. Callum is also the programme director for the online MSc in Social Justice and Community Action, which is sponsored by the Global Justice Academy.

The Global Justice Academy (GJA) is an institutional forum for dialogue with practitioners engaged in justice issues locally and globally. This short blog highlights one such example of local dialogue, in the form of a series of community-university workshops on Critical Discourse Analysis (CDA). CDA is a form of critical social research, whose purpose is to analyse the ways in which language can be used to both reproduce and challenge social injustice. Discourses can be thought of as representationsof various aspects of our social lives. These representations are made up sets of rules and statements that determine whatcan be expressed within a particular context, howit can be expressed, by whom and under what conditions. Discourses are important because they have real material effects on the distribution of burdens and benefits along different axes of inequality.

Between April and May 2018, three workshops were held, with the purpose of bringing together community practitioners, community-based adult learners, activists, students and academics to learn together about CDA. Specifically, the workshops focused on how CDA can be used creatively to link education to social action, through addressing the interests and struggles of ordinary people in communities.

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Incarceration in Scotland: a system with positive evolutions in need of a generalisation of its good practices

Crime and Criminal Law, incarceration, Inequalities, Innovative Initiative Fund, Law and Legal, Punishment, Scotland, UK, United Kingdom

In this guest post, Coline Constantin reflects on the recent seminar that tackled issues around incarceration in Scotland. Coline is reading for an LLM in Human Rights at Edinburgh Law School, and applied for funding for this event from the Global Justice and Global Development Academies’ Innovative Initiative Fund.

Scotland has the second highest imprisonment rate in Europe. Although English headlines for issues of overcrowding, under staffing, rising rates of self-harming cases do not find an echo north of the border, the statistic still makes it worth taking a closer look at its system. On Thursday 26 April, an engaged audience gathered at the University of Edinburgh to hear more about the positive developments and challenges of the Scottish system of detention.

Three panellists from different fields of expertise and different view angles on the Scottish situation were invited to cover topics from policy-making, to the implementation and analysis of these policies. Professor Richard Sparks, Convenor of Howard League Scotland and criminologist specialised on the different systems of detention in the UK, took us through his analysis of the particularities of the Scottish case within the UK and European context. Tom Halpin, Chief Executive of Sacro and prominent figure in the reduction of inequalities in the Scottish criminal justice system, gave us a sense of the work that is being done with communities and specific groups of people with convictions to go towards better mentoring and guidance throughout the process. Pete White, Chief Executive of Positive Prisons? Positive Future and fascinating storyteller, treated the audience with a story of his personal experience from his time inside and the aftermath of this life-changing event.

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