The Added Benefit of Incorporating ICERD in 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.

 

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

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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Postgraduate Gender Research Network of Scotland Launches

setting-up-tweetThe Global Justice Academy is delighted to support the launch on the Postgraduate Gender Research Network of Scotland (PGRNS). This guest post by co-organiser, Rhian Sutton, reflects on the launch event which took place in October, and plans for the Network over the coming months – including how you can get involved. Rhian is reading for a PhD in History at the University of Edinburgh.

The Postgraduate Gender Research Network of Scotland (PGRNS) was formed in August, 2016. PGRNS aims to provide a platform on which postgraduates engaged in researching gender across Scotland can share their work, advertise events, workshops, and conferences, as well as learn about calls for papers and funding opportunities. Our goal is to facilitate discussion among researchers with common interests across both universities and disciplines in order to allow students to engage with people and ideas that they would not usually encounter through the course of their study.  Ultimately, the network hopes to assist postgraduate students in enriching their research through the discovery of, and engagement with, new perspectives of gender research.

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An Urban Justice Project: Winchburgh Futures (January-May 2016)

Global Justice Academy Co-Director, Dr Tahl Kaminer, reflects on the Winchburgh Futures project that ran in ESALA at the beginning of this year.

An ESALA (Edinburgh School of Architecture and Landscape Architecture) team studied (2016) the current urban development around Winchburgh, West Lothian, in which a ring of 2000 or more housing units and a medium-scale town centre are being developed around an existing mining village of 2000 residents. The team responded to local residents’ request for support and advice regarding concerns for community cohesion and quality of development.

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COP 21: the Global Challenge of Climate Change

Lauren Donnelly is reading for an LLM in Human Rights at Edinburgh Law School. In her role as a Global Justice Academy Student Ambassador, Lauren reflects on discussions raised from the Paris talks on climate change, including what Scotland can do.

On Saturday the 19th of March, the UN House Scotland held, “Climate Change: Global Challenges, Local Solutions Conference” to explore the impact of the much publicised 2015 Paris Climate Change agreement. The event consisted of two panel discussions, the first which examined from an international perspective and the second which explored the Scottish response, to the various challenges faced in achieving the goals set out in this agreement.

COP 21The opening address of conference was delivered by Tom Ballantine, the Chair of Stop Climate Change Scotland. The opening address paved the way for what was to be an inspiring and enlightened discussion throughout the afternoon. The presentation outlined briefly why climate change matters, the broader effects of climate change and climate change after the Paris agreement. It highlighted that climate change has been discussed since the nineteenth century, stressing that despite the fact that the developing world is contributing the least to climate change, these countries are most likely to suffer the impact of global warming. Expanding on this point, the presentation outlined that if we do not act urgently we can expect to see: coastal flooding and displaced people due to land loss; reduced yields of major crops; human insecurity; and mass poverty.

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MBA Team Syria: Making a Difference to the Community

DSC00990As a part of the Strategic Leadership course on Edinburgh’s MBA programme, a group of five students organised a social event to help draw awareness to the Syrian refugee crisis. In this guest post, Debjani Paul offers an overview of the event, which centred around the the personal life experiences of three Syrians now settled in Edinburgh – Aamer Hanouf, Hussen Al Ajraf, and Amer Masri.

With the rising global concerns including climate change, an increase in global population, poverty, and terrorism, world leaders have much to focus on. It is becoming a new norm for companies to be socially responsible by promoting sustainability and contributing at least in one of the global concerns, also known as Corporate Social Responsibility. This is the ethical way to do business that every future leader should practice.

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What Can Scotland Do?

Rebecca Smyth is a Global Justice Academy Student Ambassador for 2015-16. In this post, Rebecca reflects on the third in our series of Rapid Response Roundtables on the current refugee crisis. Rebecca also report from the second roundtable, ‘Is the Global Refugee Regime Fit for Purpose?’.

Chaired by Dr Patrycja Stys of the Centre of African Studies, this event was the last of three organised by the Global Justice Academy in relation to the current refugee crisis.

It began with a screening of LIVED’s Learning to Swim, a short documentary that aims to share something of the everyday lives of displaced young Syrians in the Zaatari Refugee Camp, the village of Zaatari, and Amman in Jordan. It’s a very special piece. Through seemingly disjointed snippets of interviews and footage, it gives a sense of the inner lives and daily routines of children and young people caught up in the Syrian conflict. We meet a girl who loves football, kites and fried food, and whose favourite place is Homs, a place of roses and affectionate people.

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