International Human Rights Weekly News Roundup

by Pauline Canham

In Focus

UK provides military training to repressive states

UK_military_trainingThe UK is providing military training to 17 out of 30 countries on its Foreign Office human rights watch list.  From 2018 to 2020, UK armed forces assisted in the training of soldiers in the following states:

Afghanistan, Bahrain, Bangladesh, China, Columbia, Egypt, Iraq, Israel, Maldives, Pakistan, Saudi Arabia, Somalia, Sri Lanka, Sudan, Turkmenistan, Uzbekistan, Zimbabwe.


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Environmental Refugees – Error 404: Not Found in International Law

by Ritika Goyal

(first published on University of Oxford Border Criminologies Blog)

“Although there is a growing awareness of the perils of climate change, its likely impact on human displacement and mobility has received too little attention.” António Guterres, UNHCR

“Sinking Islands”, “The Land of No Tomorrow” and “Vanishing Paradise” are the local catch-all phrases used to describe the countries that are being hard hit by the effects of climate change and face the fear of being wiped out from the world map.  Sione, a Tuvaluan says “Maybe one time Tuvalu will disappear. From what I can see a lot is already gone. I think one day we will disappear.”  In 2014, the former President of Kiribati bought a plot of land in Fiji so that the citizens would have a refuge when their homeland becomes uninhabitable. In 2016 Australian researchers discovered that five islands in the Solomon Islands had been lost to rising seas.  The World Bank has estimated that three regions alone (Latin America, sub-Saharan Africa, and Southeast Asia) have the capacity to generate 143 million more climate migrants by 2050. In 2017, 22.5 million to 24 million people were forced to move by “sudden onset” weather events—flooding, forest fires after droughts, and intensified storms. For them, moving is not a matter of choice but a matter of survival.

 

Prohibited use of terminology

Despite the situation described above, people displaced due to climate changes don’t qualify for protection under 1951 Refugee Convention. Under the Convention, a refugee is a person who is unable to return her/his country “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and therefore, climate refugees fall outside the ambit of this definition. Presently, the term “environmental refugees” or “climate refugees” has no basis in international refugee law. This term was first used by an expert Essam-el-Hinnawi in 1985, denoting those people who had been forced to leave their traditional habitat, temporarily or permanently, because of marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life.  Even though the United Nations  has recognized  that ‘climate, environmental degradation and natural disasters increasingly interact with the drivers of refugee movements’, it has repeatedly stated that use of the term “environmental/climate refugees” should be avoided as it is inaccurate and misleading. In contrast, the European Union has suggested that there is enough scope? Or are grounds for integrating environmental refugees into subsidiary protection due to a large normative gap in international refugee law, for persons fleeing their country of origin for environmental or climate reasons. Additionally it stated that the term ‘environmental migrant’ widely used by IOM (UN) suggests a degree of volition in the decision to move and might not always be considered appropriate.

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Case of Ioane Teitiota, a national of the Republic of Kiribati

Dina Ionesco, Head of the Migration, Environment and Climate Change (MECC) Division at the UN Migration Agency (IOM) has given varied reasons as to why the term ‘climate migrants’ is preferred over ‘climate refugees’. Firstly, she states that climate migration is mainly internal, people are not crossing borders or seeking protection from a third country. Secondly, as opposed to refugees, migration is not necessarily forced, which according to her, is the case with environment induced displacement too. However, when we apply these principles to the case of Ioane Teitiota, we find various discrepancies.

Ioane had sought asylum in New Zealand claiming that the situation in Kiribati was becoming increasingly unstable and precarious due to the sea level rise caused by global warming. When refused by the Immigration and Protection Tribunal and Supreme Court of New Zealand, he filed the case in the UN Human Rights Committee. The dissenting members noted that the climatic conditions in Kiribati posed a real, personal and reasonably foreseeable risk of threat to his life under Article 6(1) of the ICCPR. This was due to scarcity of habitable space causing life endangering violent land disputes, contamination of water supply, destruction of food crops, frequent floods and children getting diarrhoea and dying because of the poor quality of drinking water. In this case, ‘migration’ was forced rather than a matter of choice. It was a matter of survival for Ioane and his family.

Despite the threats outlined to Ioane’s health and safety, he was refused protection by the Committee since there was no specific or imminent harm to him; instead it was regarded as a general risk faced by all individuals in Kiribati. According to members of the Committee, he failed to provide enough evidence that potable water was not available or crops couldn’t be grown. When it was argued that the island would sink in 10-15 years, the Committee held that there was enough time for the Republic of Kiribati to take affirmative measures, with the assistance of the international community.

Nonetheless, this judgment is a landmark one because the Committee acknowledged that environmental degradation can adversely affect an individual’s well-being, compromise effective enjoyment of the right to life and propel cross-border movement of individuals seeking protection from climate change-related harm. It observed that risk of an entire country becoming submerged under water is such an extreme risk and the conditions of life in such a country might become incompatible with the right to life with dignity, before the risk is realized. It noted that without robust national and international efforts, the effects of climate change in receiving states might trigger the non-refoulement obligations of sending states.

 

An extension of ‘polluter’s pay’ principle

When national governments, (usually the world’s poorest states) are burdened with the responsibility of environmental refugees,  then the polluter countries are absolved from the liability caused due to their environmental destruction, which ultimately affects poorer nations and drives its citizens to seek refuge in other countries due to uninhabitable climatic conditions in their countries. To expect impoverished states to respond to environmental calamities that are not of their own making is failure to hold rich countries responsible for their lavish lifestyles. People whose environment is being damaged and destroyed, who are losing their lives and livelihoods, should be recompensed and protected by those responsible. By imposing legal responsibilities of environmental refugees on the industrialized countries under international law, they will be forced to accept their obligation towards climate change. The idea of environmental refugees is therefore, an extension of ‘polluter’s pay’ and ‘common but differentiated responsibility’, principles laid down in United Nations Framework Convention on Climate Change.

The richer countries of Global North should pay the costs of their own pollution. The Council of Europe has also stated that the industrialised countries carry a particular responsibility to Global South affected by human-made climate change, and should therefore appropriately provide asylum to climate refugees. However, illustrative of the hypocrisy of the Global North, a perfect example is the Australian Prime Minister Kevin Rudd offering citizenship rights to people of a sinking island, Tuvalu, also designated as the ‘least developed country’ by UN, in return for getting the country’s maritime and fisheries rights. On the other hand, countries like Finland and Sweden have laws offering temporary protection to people because of an environmental disaster.

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A Way Forward

Currently, climate refugees can receive protection under the 1951 Refugee Convention only if environmental destruction is used as a weapon against a certain group or if natural disasters are linked to situations of armed conflict rooted in racial, ethnic, religious, or political divides. Under the EU’s Qualification Directive, when the return to a country is gravely affected by climate change to the point where the situation becomes unbearable, it might fall within the concept of inhuman or degrading treatment under Article 15 (b) of the Directive, thereby, granting them protection. However, this is not enough to cover the entire climate related cross border movements. The Geneva Convention should be expanded to incorporate a new category of “environmental persecution”. However, this proposal has been refuted by the United Nations because it feels that opening the 1951 Convention to negotiation might be used by powerful nations to weaken the refugee status.

A new legally binding instrument could be introduced containing criteria according to which refugee sending countries and recipient-countries could be identified along with concrete sanctions, state responsibility, and an enforcement mechanism in the case of violations. In order to differentiate between sender-countries and recipient-countries, the instrument could include criteria such as per capita greenhouse gas emissions and per capita income (gross domestic product), degree of development or region. The 1998 Guiding Principles on Internal Displacement which apply to situations of “natural and human-made disasters” in the context of internal displacement, can provide a useful template for the treatment of those displaced externally too. Another option can be to address environmental refugees within the United Nations Framework Convention on Climate Change. This would avoid the need to design a new legal framework. The countries that are most responsible for global environmental degradation must acknowledge their role and bear the responsibility of environmental refugees. Placing new international obligations on them towards environmental refugees would play an important role in kick-starting this process.

ABOUT THE AUTHOR

Ritika Goyal

Ritika Goyal is a law student at National University of Study and Research in Law (NUSRL), Ranchi. She has profound interest in International Human Rights Law and matters concerning Public Policy. She can be reached at ritika.goyal42@gmail.com

International Human Rights Weekly News Roundup

by Pauline Canham

In focus

Police violate human rights in their use of facial recognition technology

Facial_recThree senior judges in the UK Court of Appeal have ruled that Police in South Wales violated the right to privacy under the European Convention on Human Rights, through the unlawful use of facial recognition technology.  The ruling comes after a legal challenge by civil rights group, Liberty, who took up the case of a man whose face was scanned as he was Christmas shopping in Cardiff in 2017 and attending an anti-arms protest in 2018.  Mr Bridges, who is a civil rights campaigner, had argued that his human rights were breached when his biometric data was used without his consent.

Facial recognition identifies people through distinguishable features on the face, and compares them with identities on watch lists such as criminal suspects, missing persons or people of interest.  Bridges had lost his original case at the High Court, but the Court of Appeal held that his right to privacy, under Article 8 of the European Convention on Human Rights, was violated as the police had been allowed too much discretion in applying the technology.  The Court also found that South Wales Police had failed to investigate racial and gender bias in their facial recognition algorithms.

Mr Bridges, who is a former Liberal Democrat councillor for Gabalfa in Cardiff, said that he did not set out to make a case on the issue, but after the protest at an arms fayre at Cardiff International Arena, where he felt the police were surveilling people to intimidate protestors, he decided to get in touch with Liberty.  The 37 year old, who used crowd-funding to pay for the legal costs, said “We have policing by consent in this country”.

Liberty lawyer Megan Goulding described the judgment as a “major victory in the fight against discriminatory and oppressive facial recognition” and civil rights campaign organisation, Big Brother Watch said it “should deter police from lawlessly rolling out other kinds of oppressive technologies”.     The Surveillance Camera Commissioner, an independent appointee of the Home Office, welcomed the judgement, saying the “use of this technology will not and should not get out of the gate if the police cannot demonstrate its use is fair and non-discriminatory.”

Meanwhile, South Wales Police, are playing the judgement down, reiterating their commitment to the “careful development and deployment” of the technology but  Daragh Murray,  Senior Lecturer here at the Essex Human Rights Centre, has said “It means that any use of facial recognition must be stopped until an appropriate legal basis is established.”

 

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What is the Colonialism of Human Rights?

by Colin Samson

(Originally posted on Polity books 27 July)

The title of my new book may seem perplexing. Human rights are widely associated with life affirming social benefits and freedoms. They are said to be enjoyed in democracies, and indeed human rights are often how liberal governments distinguish themselves from autocracies. From the franchise to impartial social justice, freedom of expression to the right to the fundamentals of life, Western liberal scholars and politicians have projected human rights as indicators of inevitable human progress. The suggestion that one of the preeminent achievements of liberalism is colonial seems uncharitable, especially now when several nations are ruled by nationalistic populists who have a contempt for human rights.

Colonialism of human rightsMy title is not a reiteration of the charge that the finger pointing about human rights problems from Western middle classes and political elites is a continuation of a colonial mindset – although that charge is not entirely unfounded. Instead, I refer to the notion that human rights are infused with colonial attitudes because in their formulation in texts and laws, and in their recognition and enforcement in civil society, exceptions to the much vaunted principles were, and continue to be, routinely made. Indeed, exceptions by which non-Europeans were excluded from rights were built into the philosophical treatises on human rights as well as the more prosaic texts produced by governments and international bodies. Furthermore, the civic institutions that have administered human rights often have had no intention of applying such rights to everyone.

This is ironic since human rights call for universal application, recognising specific, sometimes ‘inalienable’, rights that are conferred to people either as individuals or collectives. Broad rights to equality, liberty, freedom, legal protections and private property are decreed in the official documents and extolled by liberal theorists. While many of these rights have been realized, violations recognised, and processes of ameliorative justice pursued and won, there is still a large gap between what is pronounced and the force that is given to universal application. One of the most important reasons for the existence of this gap is the authoritative depiction of non-European peoples as culturally and biologically inferior. In ‘liberalism’s founding text’, John Locke’s Second Treatise on Government, asserted that American Indians do not qualify for private property rights. This right, a crucial one given the continual waves of English migration, was for Locke a prerogative of culturally superior colonial farmers. Being all hunters in his erroneous view, indigenous peoples could not claim property in their land as a right since they did not ‘improve the soil’.

What if the State is Racist?

Through the concept of the social contract, Locke conceived of popular consent to the authority of ‘political society’ or the state, which in turn confers human rights on subject populations. The idea of consent through a social contract is embodied in liberal thought and tracts such as the American Declaration of Independence and the French Declaration of Rights of 1791. But what if, as is currently being said through the Black Lives Matter and other social movements, the state was and is racist? What if it achieved its authority by violent occupation, duplicity and enslavement? What if these activities were legitimated by the belief in the inherent inferiority of non-Europeans? What if, as Frantz Fanon argued quoting from a WHO booklet of the 1950s, the normal African is perceived by significant liberal institutions as a ‘lobotomized European’?

The colonialism of human rights advances the idea that authoritative constructions of Afro-descended and indigenous peoples as being sub-Europeans fuels a longer history of non-universal human rights. Today the tension between the realities of differential human rights and liberal claims to universalism is now out in the open as the current impacts of past wrongdoing are being brought forth. The exceptions, exclusions and denials of human rights that occurred simultaneous with colonialism and enslavement have metastasized into new realms of de facto non-universality, and these are apparent to even the most casual observer.

In the US and Britain it has long been known that black people, for example, are not accorded the same rights as whites in employment, housing, education, criminal justice, and the right to life itself – the public spheres in which such rights are supposedly enjoyed. It did not only take the senseless killing of George Floyd by Minneapolis police officers in May 2020 to know that the sets of rights officially granted to African Americans as a group are not only inferior to those granted to whites as a group, but that violations of supposedly universal human rights have been of no consequence when perpetrated by largely white authorities on black people.  As the narrator of Attica Locke’s Bluebird, Bluebird tells readers, ‘for every story about a black mother, sister, wife, husband, father or brother crying over a man who was locked up for something he didn’t do, there was a black mother, sister, wife, husband, father or brother crying over the murder of a loved one for which no one has been locked up.’

 

Article-Card-windrush-generation

In 2018 activists, journalists and private individuals exposed the British Home Office targeting people who had arrived following the Windrush migration from former British slave plantation colonies in the Caribbean in the mid 20th century. Accused as being illegal immigrants, these now elderly people had accompanied their parents who were recruited to work in Britain’s public services after the ravages of World War 2.  Many of them were, after successive immigration acts, denied rights to employment and healthcare after paying taxes over decades of service to the UK. Key evidence of their legitimate status, such as the original landing slips, were destroyed by the Home Office in 2010.  Many victims of the Windrush scandal have still not received the promised government apologies and several have died since it erupted.  At the time of writing, there have been massive delays in disbursing the compensation payments pledged two years ago.

The colonialism of human rights is reflected in the ongoing global mobilization against police murders of black people, demanding the removal of statues of national heroes whose heroism was connected to slavery and colonialism, and in the growing choruses for schools to cease teaching histories omitting the racism which has permeated national social, cultural and political life. Current social movements are revealing that human rights were never really intended for vast swathes of national populations, and simply update the invidious distinctions between colonizer and colonized, enslaver and enslaved. The real fear of many of those in power in Britain and the US is that the past will interrogate the liberal democracy that legitimates their rule, and ultimately that the telling of the truth will accuse them also. The victims as well as journalists, activists and scholars are showing how the past is folded into the present. The reclaimed memories offer dignity and some glimmer of justice.

Why should these colonial divisions have such longevity?

While the liberal principles of the European Enlightenment are often swaddled in self-applause, they are too often seen in isolation from the parallel set of principles that underpinned the belief that humanity was divided so sharply into hierarchies. These doctrines were multifarious; for example, that indigenous peoples were savages and that certain peoples, especially Africans, were ‘natural slaves’. Such assumptions were translated into action as indigenous peoples were killed, dispossessed of their territories, forcibly assimilated and consigned to small tracts of land. The pattern was set in the initial English colonization of ‘New England’ with the relative indifference of the English towards the mass deaths of Indians from disease and violence in the 17th century. Over one 23 year period as much as 95% of the New England population was killed by English transmission of disease. This was, as Jill Lepore says made possible by, ‘the idea that Indians were not, in fact, truly human, or else were humans of such a vastly different race as to be considered essentially, and biologically, inferior to Europeans.’

Instead of protecting American Indians as subject populations of a democracy, the US Constitution functioned as a human rights document to empower settlers to encamp themselves on indigenous lands. It mentions Indians directly only twice; excluding them from taxation and, importantly from political representation, and giving powers to Congress to regulate trade with them. In practice, several Articles in the Bill of Rights were also not applied to Native Americans as ways of life, languages and religions were suppressed and often eradicated.

We the People

Similar beliefs legitimated plantation slavery.  Implicit in the Constitution was the idea that humanity is arrayed along an ethnically differentiated continuum with human rights dispensed accordingly. This was admitted in the 3/5s compromise in the 1787 Constitution, which made enslaved people count as 3/5s of a person for the purposes of taxation and the calculation of the number of state representatives in Congress. Other passages in the Constitution, most prominently, the fugitive slave provision and a clause preventing Congress from ending the slave trade within 20 years, underpinned the legitimacy of enslavement.

Given this history, it is not surprising that today black people are routinely denied the right to life by American police. It is not surprising that legitimate British subjects who happened to be black were tracked down, criminalized, denied health care and jobs, and some hounded out of the country to be ‘repatriated’ to other countries that they hardly knew.  It is no surprise that in France Muslim migrants from ex colonies have been segmented into vast suburban housing estates called banlieues in which unemployment rates over double the national average, and that former President Nicolas Sarkozy infamously referred to French African youth protesters as ‘rabble’ or ‘riffraff’.  Similarly, it is no surprise that fundamental rights to freedom of speech and assembly were denied to Native Americans and their allies contesting the construction of the Dakota Access Pipeline. The company building this environmentally damaging project diverted it away from a white community to run it through burial sites and sacred lands guaranteed to the Sioux by treaty, and under the water supply of the Standing Rock reservation.

As the book shows, the official treatment of particular populations is linked to enduring social, political and economic expressions of colonial domination. Contemporary conflicts are layered onto uncompleted histories of racial domination, exception, differentiation and rightlessness, all of which cannot be extricated from the study of human rights. States which administer human rights are represented by institutions and personnel that embraced ideas affirming the inferior status of indigenous and enslaved persons. Because states are dedicated to the perpetuation of hegemony, neither they nor the official human rights they oversee can hold great potential for social change.

Can Human Rights be Decolonized?

To decolonize human rights is not an easy task, in part because differential human rights are themselves engrained in racist histories. I end the book by suggesting that two actions to address the morass of contradictions in which human rights stands are worth pursuing; reparative justice and indigenizing law.  Reparations for the murder, rape, and pillage of colonialism and slavery are long overdue. This recompense will never atone for countless Black Americans killed by the police and lynched. It will not rectify the systemic refusal to extend human rights to African Americans. Likewise, reparations will never help realise the alternative futures that colonialism and enslavement denied to the populations of Africa, the Americas and the Caribbean. But they will signal that universal human rights have to amount to more than a statement in an official text, protocol, standard or policy document.

Reparations to indigenous peoples for their losses of land, people and culture have not been discussed seriously, and their colonization continues as state sovereignty goes largely unquestioned in the institutional orders of international and national human rights. Continuing violations are enabled by the mandatory use of national laws.  Instead, as many indigenous scholars, such as Gerald Vizenor and Glen Coulthard, and allied activists have suggested, a dialogue which would involve the use of indigenous values, customs and laws, and that diminishes state sovereignty could help address ongoing human rights violations. An important element of the decolonization of human rights is also to affirm that laws or frameworks of common understandings of the world are transgenerational and refer to knowledge and norms formulated in the past, but which are binding on current generations. This would include the idea that all of nature has agency, and that people have a duty to respect it.

These measures would help bring the present into conversation with the past, connecting the wrongdoings of colonialism and slavery with the differential human rights doled out to so many people today.

 

ABOUT THE AUTHOR

Colin_SamsonColin Samson is Professor of Sociology at the University of Essex. His new book, The Colonialism of Human Rights: Ongoing Hypocrisies of Western Liberalism, is now available from Polity.

 

International Human Rights Weekly News Roundup

by Pauline Canham and Beth Webb-Strong

 

Beirut blast: A catastrophe for a country already in crisis

beirut_blastThe catastrophic explosion in Beirut on 4th August comes at a time when Lebanon is already suffering an economic, political and health crisis of epic proportions.  Only the day before the blast, Human Rights Watch had submitted a report to the UN Human Rights Council, stressing the need for the Lebanese Government to address the multiple crises that were already “endangering people’s basic rights”.

But immediate needs now turn to food, shelter, health care and electricity, all of which were already in short supply.  The huge explosion, which was felt 150 miles away in Cyprus, destroyed Beirut’s key grain silos and rendered the port, which is relied on for food imports into Lebanon, unusable.  The shock wave of the blast damaged thousands of homes, shattering windows and ripping doors from their hinges and destroyed hospitals, already under strain from COVID19 and a lack of funding.  Remaining hospitals have been inundated with the casualties but without electricity were unable to save many of the victims.

Anger has been growing over the last two years at government corruption, the city seeing pre-lockdown protests about a lack of basic services, including clean drinking water and electricity.   Daily power cuts have affected homes and businesses, with only two to four hours of electricity per day and the city plunged into darkness each night.

COVID19 exacerbated an already failing economy and thousands more saw their jobs cut by businesses forced to close during the coronavirus lockdown.  The country has also been inundated by Syrian refugees, adding 1.5 million refugees to the Lebanese 4.5 million population.  This has resulted in an estimation by Save the Children of more than half a million children struggling to survive without basic essentials.

Lebanese President Michel Auon has declared a state of emergency and many countries including the UK, France, United States and Iran have offered help.   The European Union are sending search and rescue assistance, and Emmanuel Macron is expected to fly in to the devastated city today.

 

#ZimbabweLivesMatter: Campaign Grows Against Human Rights Abuses

ZimbabwelivesmatterA campaign exposing human rights abuses in Zimbabwe has drawn attention across the globe this week. Twitter has been taken by storm by the #ZimbabweLivesMatter campaign, currently number 1 on the list of trending topics. The campaign hashtag was inspired by the BlackLivesMatter movement which ignited activists worldwide during May of this year. Tens of thousands of individuals have tweeted to raise awareness of the current crisis in Zimbabwe, criticising President Emmerson Mnangagwa’s government for corruption, poor handling of the economic crisis and human rights violations.

The campaign follows a number of arrests of activists, journalists and oppositionists, including Hopewell Chin’ono, a prominent investigative journalist awaiting trial on charges for inciting violence. Chin’ono recently reported concerns of corruption surrounding the Zimbabwe government’s response to the COVID-19 pandemic. Mnangagwa’s government faces multiple charges of corruption. The health minister, Obadiah Moyo, was charged with criminal abuse of office in July following the alleged awarding of a $60 million contract to a company which sold COVID-19 medical supplies at inflated prices to the government.

Last week, a nominee for this year’s Booker prize, Tsitsi Dangarembga, was amongst those arrested in Harare at an anti-government protest. Muleya Mwananyanda, Amnesty International’s Deputy Director for Southern Africa, has spoken out against ‘the persecution of these activists’, labelling government action ‘a blatant abuse of the criminal justice system and mockery of justice’.

Celebrities across the globe have joined opposition voices, highlighting the increased use of social media as a tool of exposure in today’s human rights activism climate. Political pressure is mounting for the African Union to address the government’s restrictions upon free speech and peaceful protests. Particular concerns have been raised regarding the use of the COVID-19 pandemic to justify a crackdown on political opposition. This week, Mnangagwa threatened to ‘flush out’ the ‘bad apples that have attempted to divide our people’. Measures restricting free movement such as overnight curfews have been implemented, masquerading as measures to protect public health.

 

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