A Right Not to Be Trafficked

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What is ‘modern slavery’ and who is responsible for it?

What is the relevance of human rights law, which primarily regulates state conduct, for practices predominantly committed by private actors?

Where can victims seek justice and redress when national authorities fail to protect them?

In her new book State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked, Dr. Marija Jovanovic analyses the role and responsibility of states for addressing ‘modern slavery’ – a diverse set of practices usually perpetrated by non-state actors – against the backdrop of international human rights law. Her work explores the dynamic between criminal law and human rights law and reveals the different ways these legal domains work to secure justice for victims.

In particular, the book considers the ‘absolute’ nature of the prohibition of modern slavery in human rights law, the range of practices covered by this umbrella term and their mutual relationships, the positive obligations of states established by international human rights tribunals owed to individuals subject to modern slavery, and the standards for assessing state responsibility in these situations.

By engaging with the concept of exploitation in human rights law, Dr. Jovanovic glues together diverse practices of modern slavery, including servitude, forced labour, and human trafficking, into a coherent concept.

State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked elucidates the theoretical foundations of this fundamental human right and explains why human trafficking has an independent place within it.

In addition to providing a comprehensive critique of the existing human rights jurisprudence, the book offers a roadmap for the future development of law on this subject, emphasising the limits of human rights law as a tool for addressing modern slavery.

Dr. Jovanovic’s book will be published by Oxford University Press in January 2023.

The Legalisation of Assisted Dying: The Experts’ View

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By Louise Millescamps, Essex Law School

La légalisation de la mort assistée, un sujet sociétal au cœur des débats

Ces podcasts correspondent à la deuxième partie d’un projet de recherche sur la légalisation de la mort assistée en France et en Angleterre. Après avoir publié un article décrivant les lois actuelles dans les deux pays et les raisons de chacun de refuser la légalisation de la mort assistée, j’ai eu l’opportunité d’interviewer deux expertes sur ce sujet et d’engager la discussion quant à l’état de la législation actuelle et ses possibles évolutions. Nous avons également abordé d’autres questions comme la responsabilité de l’équipe médicale dans le cadre de la mort assistée.

Aujourd’hui, ces discussions sont d’autant plus importantes qu’en France, le débat sur la législation de la mort assistée est d’actualité. Le 13 septembre 2022, Jean-Luc Godard, cinéaste franco-suisse, a délibérément mis fin à ses jours grâce au suicide assisté, une pratique légale en Suisse. Le même jour, le Comité Consultatif National d’Ethique a rendu un avis sur la fin de vie ouvrant la voie à une «aide active à mourir». Une convention citoyenne sur la fin de vie va également être prochainement organisée. Alors que les discussions sur la fin de vie prennent de plus en plus d’importance, il paraît crucial d’en apprendre davantage sur la législation en vigueur et ses possibles évolutions.

Le premier podcast est une interview de Sabine Michalowski, Professeure de Droit à l’Université d’Essex, co-directrice du projet: Essex Transitional Justice Network. Elle est aussi membre du Human Rights Centre et du Essex Autonomy Project.

Le deuxième podcast contient une discussion avec Aurore Catherine, maître de conférences en droit public à l’Université de Caen Normandie, membre de l’Institut Caennais de Recherche Juridique et présidente du groupe de Réflexion Ethique du Centre de Lutte contre le cancer François Baclesse.

Ces deux podcasts, bien qu’ils traitent des mêmes sujets, présentent deux points de vue différents.

Dans son interview, Madame Catherine commente la loi en vigueur en France. Elle rappelle que le but de cette loi est de soulager les souffrances. Selon elle, il faudrait d’abord s’assurer que cette loi est bien appliquée avant de se pencher sur la légalisation de la mort assistée:

«En 2015, une critique a été soulevée: notre législation était philosophiquement, éthiquement bien fondée, simplement on n’arrivait pas à l’appliquer parce qu’elle était insuffisamment connue des soignants, insuffisamment connue du grand public».

Concernant Professeure Michalowski, il lui semble important de se focaliser non pas sur l’application de la législation actuelle mais sur la nécessité de légaliser la mort assistée. Selon elle, il serait préférable d’adopter une nouvelle loi plutôt que de se reposer par exemple sur l’«état de nécessité», un moyen de défense utilisé lors de certains procès mais qui se révèle «totalement imprévisible». Pour Professeure Michalowski, il est important de laisser le choix aux individus et de leur permettre ainsi de décider de leur vie comme de leur mort. Elle affirme à cet égard que: «Pour certaines personnes, une meilleure fin de vie serait d’avoir accès à la mort assistée».  

Interview with Dr. Catherine
Interview with Prof. Michalowski

The Legalisation of Assisted Dying

These podcasts are the second part of a research project on the legalisation of assisted dying in England and France.

In the first interview, I had the honour of talking to Sabine Michalowski, Professor of Law at the University of Essex, co-director of the Essex Transitional Justice Network and a member of the Human Rights Centre and the Essex Autonomy Project. 

In the second interview, I had the opportunity to interview Aurore Catherine, Lecturer in Public Law at the University of Caen Normandie, member of the Institut Caennais de Recherche Juridique and President of the Ethical Debate Group at the François Baclesse cancer centre.

In both podcasts, we are going through different themes on the topic of assisted dying. Similar questions are asked to both interviewees in order to grasp the differences between both jurisdictions.

From the definition of dignity at end of life, to the powers of the courts and the physicians’ responsibilities, we discuss the challenges associated with the legalisation of assisted dying. 

Although dealing with the same topic, the two podcasts present two different points of view.

In her interview, Dr. Catherine focuses on the current legislation in France. She recalls that the purpose of the law is to relieve suffering. According to Dr. Catherine, it would first be necessary to apply this law properly before debating on legalising assisted dying:

“In 2015, a criticism was raised: our legislation was philosophically, ethically well-founded, however, we could not apply it because it was insufficiently known to caregivers, insufficiently known to the general public”.

For Prof. Michalowski, the importance of the debate lies in the legalisation of assisted dying. According to Prof. Michalowski, adopting a new law would be a better option than relying for instance on the defence of necessity, a means of defence used in some trials but which turns out to be “totally unpredictable”. She focuses on the idea that it is important to ​​leave everyone to choose and decide about their own life and death. In this regard, she says that “for some people, a better end of life would be to have access to assisted dying”.

Interview with Dr. Catherine
Interview with Prof. Michalowski

Who Owns Justice? When States Refuse to Provide Justice, Let the People Make Their Own Justice

By Professor Carla Ferstman, Essex Law School

Image credit: Aban Tribunal website

I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.

This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.

People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.

In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.  

People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.

In the case of the Aban Tribunal, the goal was to do all these things. And, to draw attention to the patterns of repression; impunity breeds recurrence and we are seeing this every day with the Iran Government’s brutal repression of the ongoing protests into the killing of Mahsa Amini. These tribunals can also serve as an end in and of themselves, by serving the goal of acknowledgement of wrongs and doing justice that otherwise would never had been done.

Who gets to decide what justice looks like?

What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?

Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?

In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.  

As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.

In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.

In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.  

Can justice exist without a government legitimising it?

In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a  government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.

Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.

But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.

It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.  

The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.

How to avoid the accusation of Kangaroo Justice?

There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.

The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.  

Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.

For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.

Conclusions

People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.  

The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.

International Guidelines Help Promote and Protect Human Rights in Phillippines

The United Nations (UN) has recommended international guidelines developed through a partnership between Julie Hannah, at Essex Law School, and the United Nations Development Programme should be used in the Philippines to improve and protect human rights.

The Office of the High Commissioner for Human Rights (OHCHR) has recommended the International Guidelines on Human Rights and Drug Policy form part of the UN joint action plan to improve the human rights situation in the Philippines.

Julie Hannah, who is the Director of the International Centre on Human Rights and Drug Policy based at the Human Rights Centre, said:

“We are delighted to see the Guidelines form one of the United Nation’s key recommendations to the government of the Phillippines to advance more humane and just responses to drugs in the country. Vigilance and accountability will continue to be critical to ensure the Guidelines are utilised in a comprehensive system of reforms necessary to support justice and healing for the communities so deeply affected by the punitive and violent drug control efforts of recent years. It is an honour to play a very minor role in supporting the tremendous advocates at the Commission on Human Rights as well as civil society colleagues and friends in the country.”

Improving human rights in the Philippines

This recent UN report examines progress made on the implementation of the United Nations Joint Programme on Human Rights (UNJP), agreed by the Government of the Philippines and the UN on 22 July 2021.

This three-year UN joint programme was developed to implement Human Rights Council Resolution 45/33 which outlined specific areas, including drug control, for capacity-building and technical cooperation for the promotion and protection of human rights in the Philippines.

The OHCHR’s recommendation that the new Philippines administration ‘revise legislation and policies in line with a human rights-based approach and the International Guidelines on Human Rights and Drug Policy’ followed a national consultation convened in 2021.

This consultation involved the Philippines Commission on Human Rights, the OHCHR and national stakeholders to review the current efforts on drug policy reform in the Philippines in light of the International Guidelines on Human Rights and Drug Policy. This was subsequently followed by meetings organised by the UNJP in April this year with government, health officials and academia to propose a draft roadmap to transition the national drug policy framework towards a public health and human-rights centred system to enable voluntary community-based treatment and rehabilitation for drugs.

More about the International Guidelines on Human Rights and Drug Policy

The International Guidelines on Human Rights and Drug Policy are the result of a multi-year collaborative effort between academics, UN entities and civil society addressing Health, Development and Criminal Justice.

They were developed by the International Centre on Human Rights and Drug Policy and the United Nations Development Programme in collaboration with the GPDPD, GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development and the Swiss Federal Department of Foreign Affairs.


This piece was first published on the University’s news web pages and is reproduced on the ELR Blog with permission and thanks.

The Poetry of Rights

Image credit: pexels.com

By Charilaos Nikolaidis, Essex Law School

Human rights are not simply rights, they are also quintessentially human; and the human experience is filled with emotion. Dr Nikolaidis argues that human rights can be understood as emanating from emotions that we are perceived to share.

Art in general and poetry in particular can provide a great service in helping us explore and bring these emotions to the fore, thereby reinforcing the distinctively human character of human rights, while also enabling us to understand them as something more than moral or legal constructs.

The regulatory and legal facet of human rights is a fundamental aspect of democratic justice systems. But so is the personal, emotional facet, which prompts us to celebrate, communicate, debate and re-imagine the nature and content of human rights – within and beyond the courtroom – in a more empathetic and inclusive manner, with reference to the emotions that underpin them.

In his new article, published Open Access in the journal of Law and Humanities, Dr Nikolaidis advances the idea that a sharper focus on the personal facet of rights can help promote the regulatory one “by making the justice system more sensitive and responsive to the emotions of individuals, thus rendering it more open and relatable”.

The article can be accessed in full here.

Church of Sweden Apologizes to Sami for Involvement in Colonial Oppression & Past Abuses

Image by Thom Reijnders on unsplash.com

By Ebba Lekvall, Essex Law School

“Today, we acknowledge [these past abuses], and, on behalf of the Church of Sweden, I apologise.”

Those were the words of the Archbishop of the Church of Sweden, Antje Jackelén, as she led the reconciliation service in Luelå Cathedral this past Sunday (23 October), and officially apologised to Sweden’s indigenous population for the Church’s involvement in past colonial oppression and abuses. This is part of the Church’s reconciliation process and efforts in dealing with a dark past that has included forced Christianisation, destruction and desecration of Sami religious places and objects, active participation in grave looting in search of Sami remains, deprivation and suppression of Sami identity and culture.

The Sami are the only indigenous people of Europe and their traditional land – Sápmi – stretches across half of modern-day Norway and Sweden, as well as part of Finland and Russia. It is estimated that there are around 100,000 Sami in Sápmi, with 20,000-40,000 in Sweden.

Source: https://samer.se/karta

The Sami are believed to have lived on this land for thousands of years. In Sweden, colonisation of Sápmi began in the early 14th century but really took off in the 17th century when silver was discovered. This led to Sami populations being driven further to the north and west, which led to centuries of conflict between the Sami and colonisers as the Sami saw their rights, including to land and water, being curtailed. These rights are still being violated today in breach of international human rights law and Sweden has been criticised by the UN Special Rapporteur on the rights of Indigenous Peoples for its treatment of the Sami, including for the lack of protection for their right to their lands and resources.

The Church of Sweden was instrumental in the oppression of the Sami, who were forced to convert to Christianity (through methods like fines, imprisonment and even the death penalty) and to attend church, where their language and traditional joik singing was banned. As part of the Christianisation of the Sami, the Church also defaced Sami religious sites and destroyed drums used in traditional ceremonies. This contributed to the loss of traditional Sami religion and culture.

In addition, the Church was the main force in organising so-called “nomad schools” for Sami children, which were run between 1913 and 1962. Like the residential schools for indigenous children in Canada, these were boarding schools and based on racist ideology. However, unlike the Canadian schools, the purpose was not necessarily to assimilate Sami children into Swedish citizens. Rather, the schools in Sweden were created based on the understanding that reindeer-herding Sami should live according to what the Church considered to be as close to their nature as possible, whereas non-nomadic Sami should be assimilated into white Swedish society. Therefore, the children of reindeer herders were sent to the nomad schools, where they were provided sub-standard education, where Swedish was the language of instruction and where their own language was banned. Consequently, generations of Sami lost their language.

The Church was also involved in other racist policies. In 1922, the State founded the Institute for Eugenics. Its director, Herman Lundborg, believed in racial purity and argued that ideas about the equal worth of peoples was an illusion (he became an inspiration for German eugenics researchers whose work laid the foundation for many Nazi policies). Lundborg conducted his “research” on the Sami people which led to trauma, lasting generations. He travelled to Sápmi and measured skulls and faces of the Sami, and also collected information about eye and hair colour. He photographed each person, sometimes naked, and a catalogue of pictures with public access is still kept at the library at Uppsala University. Church representatives had a close relationship with Lundborg and they acted as points of contact between Lundborg and the schools and villages he visited.

While the State has remained largely silent and has yet to apologise, the Church has taken the lead in redressing past abuses against the Sami and has begun a reconciliation process which has included mapping its involvement in abuses and holding Ságastamallat (conversation or dialogue in Sami) – where testimonies have been collected about the experiences of the Sami and consequences of the Church’s abuses. The first one took place in October 2011 and the second took place 21-22 October. Two more Ságastamallat are planned – one in 2026 and one in 2031. The Church will then have spent 20 years working on the process of reconciliation.

The current (and retiring) Archbishop has, for many years, made repeated public comments about the Church’s past abuses against the Sami, and called for Sweden to deal with its colonial past. Under her leadership, the Church published a White Paper – “The Sami and the Church of Sweden” – where the Church “examines its guilt and responsibility towards the Sami in [Sweden’s] colonial past.” The White Paper documents past abuses and violations committed. The Church has also published a book about the nomad schools – “When I was eight, I left my home and I have still not returned” – which contains ten testimonies from persons who attended these schools. In the preface, the Archbishop wrote: “The Church took part in the colonisation of Sápmi and actively contributed to exercising power and control over the Sami. We delivered theological thought models that could justify the colonial system. Church representatives also had a driving role in the creation of the nomadic schools at the beginning of the 20th century.”

Last November, the Church made an official apology in Uppsala Cathedral, the seat of the Archbishop. This apology was repeated this Sunday in Luleå – which was symboliccally important as Luleå is located in Sápmi. Both apologies were made in Church services that were live streamed and still available online. The services were conducted in both Swedish and Sami. Importantly, the traditional joik was also included, as were several testimonies, including about experiences in the nomad schools and a poem about the racial policies of the Church. Others spoke about the loss of identity across generations, and how the loss of language and land (including land still owned by the Church) has contributed to the loss of culture.

The Archbishop’s apology acknowledged that the Church “has contributed to and legitimised oppression” and that the apology was only one step “forward on the long road of reconciliation.” As part of this road to reconciliation, and linked to the apology, the Church also made eight commitments, including to increase knowledge and awareness of the Church’s historical abuse against the Sami and the consequences of this and to expand knowledge of and respect for the principles of indigenous rights within the Church of Sweden and in society, as well as to preach the Gospel in the Sami languages and in the Sami cultural context, with respect for the Sami spiritual and ecclesiastical tradition.

After centuries of oppression at the hands of the Church, this public apology is an important step in the work done by the Church as part of the ongoing process of reconciliation. However, the Archbishop also acknowledged that “we cannot determine how you will receive this apology. It is not our place to demand to know when a response will be given and what that response will be.” Representatives of the Sami Parliament in Sweden have said that in order for the Sami people to accept the apology, practical action from the Church is needed. It remains to be seen whether the Church is able to deliver on its eight commitments and how the apology will be received by Sami communities.

In further developments, and perhaps spurred on by the Church’s work, the government agreed with the Sami Parliament last year to create a truth commission to “identify and review from a historical perspective the policies the Sami were subjected to and the subsequent consequences for the Sami people.” Commissioners were appointed in June 2022 and are expected to deliver their report in 2025. Little information is currently available about the commission, including details about its mandate, but it does not seem to include a mandate to recommend reparations.

Given the State’s history of dragging its feet when it comes to acknowledging responsibility for its abuses against the Sami, both past and present, and the fact that it refuses to ratify the ILO 169 Convention on indigenous rights, this is perhaps unsurprising. But it would be a missed opportunity nonetheless. At the very least, any reparations provided to the Sami should include acknowledgement of responsibility and an apology. With the Church leading the way, one can only hope the State follows suit.

Essex Law School Academics Succeed at the YERUN Research Mobility Awards

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We are pleased to announce that Dr Koldo Casla and Dr Fikayo Taiwo of the Essex Law School made successful applications for the 2022 YERUN Research Mobility Awards!

Young European Research Universities Network (YERUN) is a network of young research universities in Europe seeking to have a true impact on the role and nature of academic pursuit. The competitive Research Mobility awards support early career researchers to establish new research collaborations within the YERUN network while providing a platform to promote multidisciplinary research.

Dr Koldo Casla will work alongside Marion Sandner (PhD candidate at Antwerp University) on the meaning of solidarity and responsibility in global politics and in international law, and the relationship between these two ideas and social rights. 

Solidarity is one of the unifying principles of a society. But does solidarity have a role in the international society? How is solidarity recognised in international human rights law? What are the implications of the recognition of solidarity within nations and between nations? In other words, if we are bound by solidarity, what do we owe each other, and what does this mean for human rights, and for social rights in particular? These are some of the key questions Koldo and Marion will be busy with in the next few months.

Dr Fikayo Taiwo will work with Martin Munu (PhD candidate at Maastricht University) on access to justice, regional economic integration and electronic commerce (e-commerce).

As access to justice is a sustainable development goal (SDG), the researchers will investigate the extent to which the nascent Agreement establishing the African Continental Free Trade Agreement (AfCFTA) dispute resolution mechanism advocates this SDG for e-commerce disputes. Given the increasing popularity and complexity of e-commerce and the societal peculiarities on its availability and use across the continent, as well as the inspiration drawn from the World Trade Organisation Dispute Settlement Understanding (WTO-DSU), the researchers will consider any gaps in WTO rules and case law covering e-commerce with the objective of drawing any possible lessons for promoting access to justice under the AfCFTA, and contributing towards sustainable, inclusive socio-economic development in Africa.

The collaborations will last until the end of 2023. We look forward to announcing their findings. Watch this space!

Human Rights Centre Clinic: United Nations High Commissioner for Refugees Project (2021-22)

Charlotte Dickson, Ayşe Uzun Demir and Arne Vermeerbergen in UNHCR HQ

Over the Summer of 2021, the Human Rights Liaison Unit (HRLU) in the Division of International Protection (DIP) of the Office of the United Nations High Commissioner for Refugees (UNHCR) negotiated with Essex’s Human Rights Centre (HRC) Clinic to coordinate a project with human rights and humanitarian law masters students to investigate the interaction between Special Procedure Mandate Holders (SPMHs) and UNHCR at headquarters, in the regions, and at country level.

In October 2021, Arne Vermeerbergen, Ayşe Uzun Demir, Charlotte Dickson and Parkhi Saxena took on this project. They came with varying degrees of prior knowledge, but for all of them, the scope and complexity of the project was a steep learning curve which they all took on with great enthusiasm. This was one of the six projects of the HRC Clinic of the University of Essex in 2021-22 (the annual report of the Clinic’s activities can be found here).

To give a brief overview of the scope of the project, there are 45 Thematic Mandate and 13 Country Mandate Holders, variously titled Special Rapporteurs, Independent Experts or members of a Working Group. They are supported by the Office of the High Commissioner for Human Rights (OHCHR). They are a Charter mechanism and so are not tied to any particular human rights treaty, but they all have their own separate mandates.

Clearly, the Country Mandate Holders focus on human rights in that country, but the thematic SPMHs focus on their mandate globally; they may issue thematic reports, communications, statements and undertake country visits on their mandate followed by a country report. SPMHs change regularly and a new one may have more or less knowledge of persons within the mandate of UNHCR.

Initially limited to refugees, UNHCR’s mandate has expanded over the past eight decades to include stateless persons and conflict-driven internally displaced persons (IDPs) within the Global Protection Cluster. And UNHCR staff move in and out of headquarters and between countries and regional offices in the field.

Maintaining links in such circumstances is not straightforward and the Clinic Project was about improving communication along with expanding interaction. The Team needed to learn all about the Mandates, but also about UNHCR’s mandate and its operations, as well as the interaction between different parts of the UN: UNHCR, OHCHR, and the independent Mandate Holders.

The desk-based research showed that there was a wide variation in engagement by SPMHs with persons in UNHCR’s mandate, and sometimes there was no carry-over when the SPMH changed. While there is an obvious link between the Special Rapporteurs on the human rights of internally displaced persons and on the human rights of migrants, nearly every thematic SPMH has some relevance to refugees, IDPs and stateless persons – violence and discrimination against women might spark flight and be a constant threat during protracted displacement, minorities are often persecuted and have to flee, the threat to freedom of religion and belief is often the reason for seeking refugee status abroad, transitional justice may be essential for refugees and IDPs to feel it is secure to return. To substantiate the desk-based research, the Team also interviewed SPMHs, their OHCHR support teams and relevant sections in UNHCR HQ and the regions.

Their report made clear the need for greater training for SPMHs regarding UNHCR’s protection mandate, but also for improving awareness of the usefulness of SPMHs to UNHCR’s field operations – UNHCR achieves most of its successes through quiet diplomacy from its in-country missions to 137 countries. Over 80% of the 100 million forcibly displaced persons within UNHCR’s mandate are living in low- or middle-income countries, many that are not party to any refugee convention or even international human rights law treaty. A lot of what UNHCR does has to remain confidential, in much the same ways as the ICRC. However, SPMHs can and should speak out about rights violations and while SPMHs are there for every victim, they are also there for refugees, IDPs and stateless persons.

What the Team also highlighted was UNHCR’s cross-border perspective compared to SPMHs that either are mandated for one country or are carrying out country visits. While the independence of all parties needs to be maintained, the potential for coherent and coordinated intervention cannot be doubted.

In recognition of their continued association with the project, the Team received the Essex Law School Bursary of the 2021-22 academic year. Furthermore, to promote their findings, the Team were invited by Peter Swiniarski of the HRLU, who hard worked with them all year, to speak at the UNHCR HQ in Geneva on 29 September 2022. They prepared over the Summer and then, with a little specific planning on the night before and in the morning, three of them in person, Arne, Ayşe, and Charlie, with Parkhi joining online from India as she prepared to take up her new position as Assistant Lecturer at Jindal Global Law School, presented in Lecture Room 4 in UNHCR to members of the HRLU and to about 40 field officers around the world.

A picture of the online presentation (inset: ongoing session in UNHCR HQ, Parkhi Saxena presenting online)

It was a fantastic success and the following day, a former Essex student, now based in Mogadishu for UNHCR, Sebastian Herwig, contacted Prof. Geoff Gilbert (who supervised the project) to congratulate them. This was insightful, beyond Masters-level, impactful research that will affect UNHCR, OHCHR and SPMHs as they all seek to enhance the human rights of persons within their mandates.

The Team summed up their year-long experience in a few words:

We were fortunate to work on a project that was incredibly interesting yet very challenging. We hope that the outcomes of our research can make a difference to UNHCR’s and SPMH’s work in building better lives for those forced from their homes.

Freedom and Proportionality: A Workshop

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We are delighted to announce the details of a fascinating workshop taking place on 29-30 August 2022 in Molyvos, Greece. This international workshop aims to explore the relationship between freedom and proportionality, bringing together human rights law doctrine and philosophical theorising.

It will do so by pursuing two main themes:

  1. Is there a morally valuable – albeit overridable – freedom to engage in potentially harmful behaviour or should the concept of freedom be inherently limited by the reasonable interests of others?
  2. Is the proportionality test, as applied in human rights law, committed to a particular philosophical conception of freedom? If so, is that conception morally justified?

Underlying these abstract questions are urgent issues of practice about the balance between the individual and society, the correct interpretation and application of rights, and the role of courts and other state institutions in their protection. For example, the relationship between freedom and proportionality is at the heart of controversies over the lawfulness of government measures aiming to tackle the COVID-19 pandemic such as restrictions of movement and economic activity and compulsory vaccinations.

The issue is typically framed in terms of the proportionality between the public benefit of these measures and the intensity of the interference with human rights. However, for many scholars, this framing is deeply problematic. It assumes that such restrictions amount to losses of valuable rights, which must be offset by an overriding public benefit. But, so the argument goes, we do not have even a prima facie right to be a public threat e.g. by carrying a contagious virus. To think otherwise is to assume a highly individualistic and antisocial notion of personal freedom. And yet arguably this assumption underpins the proportionality doctrine, inasmuch as claimants must clear a relatively easy hurdle to establish that a restriction amounts to a prima facie interference with their human rights. As a result, almost any activity or personal preference, however harmful, triggers a proportionality assessment.

By ensuring that proportionality best reflects moral notions of freedom, we vindicate it and guide its use towards the optimal results. The workshop has this dual aim, to elucidate legal doctrine through sustained theoretical scrutiny and improve it, so that it can successfully address contemporary challenges in human rights law.

The workshop is hybrid. Most of the speakers will meet in Molyvos (Greece), the hometown of Stavros Tsakyrakis, who spearheaded the aforementioned line of attack against proportionality. But the proceedings will also be accessible via a Zoom webinar that is open to everyone. The workshop’s programme and registration details can be found below:

Rethinking International Law from Amazonian Onto-epistemologies: the Kukama People and the Amazonian Waterway Project

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Cristina Blanco, PhD candidate at the School of Law, University of Essex, was awarded the PhD Fieldwork Grant 2021-22 by the Socio-Legal Studies Association (SLSA). Cristina’s research focuses on the interactions between Amazonian onto-epistemologies, international law (IL) and human rights in the context of an investment project.

In the Amazonian rivers, water flow varies significantly with the seasons. During the dry season, low water levels hinder the navigation of large vessels. Although the peoples inhabiting the Amazon rainforest have travelled and traded using these rivers over centuries, the fluctuating navigability prevents uninterrupted large-scale transport. This is the main reason why the Peruvian state is promoting the “Amazonian Waterway”, an infrastructure project that consists of removing sediments from the bottom of the main Amazonian rivers.

The Amazonian Waterway is far from being an isolated project. It rather reflects the neoliberal developmental paradigm favoured by IL (Escobar 2011, Pahuja 2011, Eslava 2019). In addition to generating serious socio-environmental impacts, the project hides a profound conflict of ways of understanding the world.

The Amazonian indigenous peoples conceive the territory as a space inhabited by human and non-human entities, a conception that challenges the very definition of what we call “nature”. The sharp distinction between humans and non-humans that governs the Western world and underlies modern (international) law is not necessarily present in Amazonian cosmologies (Viveiros de Castro 2004, De la Cadena 2010, Descola 2013).

For the Kukama-Kukamiria people, for instance, the territory is inhabited by different “categories of people” living in a “plurality of worlds” (Tello 2014). The river is an (aquatic) world in itself, inhabited by beings endowed with their own subjectivity and intentionality (Rivas 2011). Therefore, thinking from the Amazon means not only standing in a geographically different place but also thinking onto-epistemically different.

In this scenario, the main problem the research seeks to explore is that IL does not take this onto-epistemic diversity seriously. Instead, it frames the issue as a cultural question of relevance to indigenous collective rights. While such rights play an indispensable role in protecting indigenous worldviews, they are insufficient to prevent their elimination.

This, in turn, has important implications in areas as critical as the Amazon. Trying to make sense of IL from the Amazon, this case study provides the opportunity to explore how to move from the impact of IL in the Amazon (historically aimed at its internationalisation) to enable the influence of Amazonian epistemologies on IL. This exercise of “Amazonising IL” enables us to reveal the epistemological richness of the Amazonian cosmovision and explore its potential for rethinking IL.

The research has three main methodological components. Substantively, it is a socio-legal research that takes as the unit of analysis the interactions between IL, human rights and the Amazonian worldview relevant to the case study. In analytical terms, it has an interdisciplinary approach theoretically informed by Amazonian studies and critical approaches to IL. As for the empirical component, it uses a case study method based on qualitative analysis of documentary and visual information, as well as in-depth semi-structured interviews.

The fieldwork was possible thanks to the valuable support of the SLSA.

Bibliographic references

De la Cadena, M. (2010). “Indigenous cosmopolitics in the Andes: Conceptual reflections beyond “politics”.” Cultural anthropology 25(2): 334-370. https://anthrosource.onlinelibrary.wiley.com/doi/abs/10.1111/j.1548-1360.2010.01061.x

Descola, P. (2013). Beyond nature and culture, University of Chicago Press. https://press.uchicago.edu/ucp/books/book/chicago/B/bo9826233.html

Escobar, A. (2011). Encountering development: The making and unmaking of the Third World, Princeton University Press. https://press.princeton.edu/books/paperback/9780691150451/encountering-development

Eslava, L. (2019). The Developmental State: Independence, Dependency, and the History of the South. In: The Battle for International Law: South-North Perspectives on the Decolonization Era. J. von Bernstorff and P. Dann, Oxford University Press: 71-100. https://global.oup.com/academic/product/the-battle-for-international-law-9780198849636?cc=gb&lang=en&

Pahuja, S. (2011). Decolonising international law: development, economic growth and the politics of universality, Cambridge University Press. https://www.cambridge.org/core/books/decolonising-international-law/7E8B4FB0AAECFD08355914EE41DDB5C7

Rivas Ruiz, R. (2011). Le serpent, mère de l’eau: chamanisme aquatique chez les Cocama-Cocamilla d’Amazonie péruvienne, Paris, EHESS. http://www.sudoc.abes.fr/cbs/xslt/DB=2.1//SRCH?IKT=12&TRM=160329019&COOKIE=U10178,Klecteurweb,D2.1,E192cfbd9-1f1,I250,B341720009+,SY,QDEF,A%5C9008+1,,J,H2-26,,29,,34,,39,,44,,49-50,,53-78,,80-87,NLECTEUR+PSI,R95.151.73.225,FN

Tello, L. (2014). “Ser gente en la Amazonía, fronteras de lo humano: aportes del pueblo kukama.” Amazzonia indigena e pratiche di autorappresentazione. Milano, Franco Angeli: 39-48. https://www.francoangeli.it/Ricerca/scheda_libro.aspx?Id=21593

Viveiros de Castro, E. (2004). Perspectivismo e multinaturalismo en la América indígena. Tierra adentro: territorio indígena y percepción del entorno. A. Surrallés and P. Hierro. Copenhague, IWGIA: 37-82. https://www.iwgia.org/images/publications/0331_tierra_adentro.pdf