China forces thousands of Tibetans into labour camps
More than half a million people in Tibet have been coerced by Chinese authorities into a labour program so far this year, moving rural labourers into ‘military-style’ camps to retrain them to work in factories in the textile and construction industries. A Reuters-corroborated report, by the Jamestown Foundation also found that Chinese authorities have set quotas for the mass transfer of these re-trained workers to other parts of Tibet and China.
Tibet is a predominantly Buddhist, autonomous region of China and the situation there has been compared to the well reported Uighur ‘re-education’ camps in the Xingjiang region of China. The independent Tibet and Xingjiang researcher who drafted the findings, Adrian Zenz, said “It’s a coercive lifestyle change from nomadism and farming to wage labor.” Zenz makes particular reference to similarities with Xinjiang, stressing that the focus is on “military-style training management to produce discipline and obedience” and the need to change “thinking and identity” and “weaken the perceived negative influence of religion”. The policy documents examined show that in addition to vocational skills training, something called “gratitude education” is included to boost loyalty to the Party.
According to the Chinese government, the program is designed to develop “work discipline, Chinese language and work ethics” and change “can’t do, don’t want to do and don’t dare to do” attitudes towards work. China’s Ministry of Foreign Affairs made a statement to Reuters, saying that reports of ‘forced labor’ are lies and all workers are involved in the program voluntarily and are properly compensated.
Two weeks ago, a global coalition of 321 civil society groups from 6 countries urged the UN to tackle China’s human rights violations through an independent international mechanism. John Fisher, Geneva director at Human Rights Watch said the global coalition, which includes 50 UN experts, organisations and governments, “are all demanding an end to China’s impunity at the UN Human Rights Council”.
Meanwhile, at the UN General Assembly this week, as Trump and Xi face off, UN Secretary-General, Antonio Guterres warned the international community about the perils of a “great fracture” between the two largest economies of the US and China, saying “we must to everything to avoid a new Cold War”.
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Last month, an artificial intelligence (AI) algorithm was pitted against a human pilot in simulated F-16 fighter jet dogfights. The AI pilot won, 5-0. The US Defence Advanced Research Projects Agency (DARPA) hosted the ‘AlphaDogfight’ Trials as part of the Air Combat Evolution (ACE) program, which looks at future possibilities of teaming machines with humans to enhance defence capability through “complex multi-aircraft scenarios”.
This article will look at the issues raised by removing the human element from lethal action, before outlining the growing calls, from the human rights community, for a ban on autonomous weapons. First, though, it is worth taking a step back to understand how we got here, through a brief history of the use of unmanned drones, the precursor to fully autonomous weapons.
A brief history of Unmanned Aerial Vehicles (UAVs)
The use of pilotless aircraft for surveillance during conflict emerged during the Vietnam War with the US using what they called “Lightning Bugs” on reconnaissance missions. The Israeli Defence Force (IDF), too has used drones or Unmanned Aerial Vehicles (UAVs) since the 1970s, as decoys and intelligence gathering vehicles, during wars with Egypt, Syria and Lebanon.
The merging of these robotic eyes-in-the-sky with lethal weaponry would be a pivotal moment for post 9/11 policy making and play a significant role in what President Bush called “a different kind of war”, in which the risk to American military personnel was removed through delivering death by remote control.
The use of remotely piloted drones to assassinate the enemy, rather than risking troops on the ground, found favour, particularly following the catastrophe of the Iraq war and the deeply damaging CIA torture program, and became a go-to counter-terrorism tool for Obama. The low risk to American lives and the often-sold precision accuracy of drones gave them an ‘ethical’ flavour that appealed to those who wanted revenge with a clean conscience. It was a way for Obama to appear tough on terrorists, but maintain his Nobel Peace Prize winning status as a man who espoused human rights and the rule of law.
Along with indefinite detention without trial in Guantanamo Bay, the drone program is one of the few surviving policies of the War on Terror, now into its 20th year. Claims of the precision accuracy of drones, though, have been challenged by various studies in the countries of their operation, including Yemen and Afghanistan, where drone strikes were found to be “10 times more likely to kill civilians than conventional aircraft”. In July 2020, on publishing her report into the drone assassination of Iranian General Soleimani, the UN Rapporteur on Extrajudicial and Arbitrary Execution, Agnes Callamard described the surgical precision of drones as a “myth”.
Removing the human from lethal action
Removing the human from battlefield operations is given as a significant advantage by operating states, claiming that machines are less likely to make mistakes and offer higher levels of precision and lower risk to military personnel. The AlphaDogfight trials also exposed the fear, or feeling of “self-preservation”, of the human pilot as a limiter in performing risky manoeuvres that might provide an edge in battle. The Pentagon’s Director for Research and Engineering for modernisation, Mark Lewis, said that the advantage of an AI pilot is that it will be prepared to “do things that a human pilot wouldn’t do”.
Whilst this lack of fear may appear advantageous, it serves to illustrate the argument against fully autonomous weapons; they don’t have human attributes that indeed include fear for themselves, but also compassion towards others. They are, in effect, weapons of dehumanisation, with no ability to recognise the humanity in those they fight against, or any way to distinguish between combatants and civilians. As things stand, the use of remotely controlled drones, operated by ‘pilots’ that are stationed thousands of miles away from the target, has seen lethal strikes that have caused catastrophic civilian casualties through a misinterpretation of activities including weddings, funerals and jirgas (traditional community assemblies), that were wrongly assumed to be terrorism related.
Jeremy Scahill, author of The Assassination Complex, refers to this as the ‘tyranny of distance’, a phrase borrowed from the 1966 book about the precariousness of Australia’s isolation and distance from its coloniser. The lives of the Yemeni, Pakistani, Afghani and Somali targets of drone strikes are indeed permanently precarious, and the distance of the innocent victims of robotised drone violence makes them invisible, not just to the ‘pilots’ of the drones themselves, who initiate the strike, but also to the publics of those governments who deploy such weapons.
Political theorist and author of Just and Unjust Wars, Michael Walzer has voiced his concerns about drones, stressing that their advantages make their use easier and more likely and this should trouble us, as the traditional reciprocal risks of going to war add weight to jus ad bellum considerations. Removing the human from one side of the battle with the enemy has been described by some as “remote controlled hunting” , with the moral equality of combat removed due to a lack of risk reciprocity.
Further, as the development of these hi-tech weapons depends on the depth of defence budgets, asymmetries of power and violence have resulted in violations of human rights in Afghanistan, Pakistan, Palestine, Somalia, Yemen, Iraq and Libya, where communities live in constant fear of strikes. These are communities that have been psychologically traumatised, their privacy denied and their cultural and religious practices undermined. As a Stanford Law School study in Pakistan concluded, innocent men, women and children have been killed simply by dint of their behaviour such as gathering in groups, or carrying weapons, considered, by the United States to be consistent with terrorist activity.
Imagine, then, the spectre of full autonomy in the use of armed drones, offering the prospect that such behavioural ‘signatures’ could be programmed into targeting algorithms that would totally disregard any cultural context.
Calls for a ban
As yet, there is still little in the way of international law to specifically regulate the use of drones or autonomous weapons, other than International Humanitarian Law (IHL), – a.k.a the Law of Armed Conflict (LOAC) – which covers areas of operation within zones of existing armed conflict; or International Human Rights Law (IHRL), which requires the justification of self-defence, limited by necessity and proportionality for any counter-terrorism operations.
Furthermore, there are ambiguities around the use of IHRL extraterritorially, which allows the US to sidestep accountability on a technicality, namely Article 2 of the International Covenant on Civil and Political Rights (ICCPR), which limits the obligations of a state to “ all individuals within its territory and subject to its jurisdiction”. In addition, the state of exception that ushered in Bush’s “different kind of war” has become permanent, and the ability to flout international law under the guise of a universal project of global security and human rights, has slipped quietly under the radar, with the suffering of thousands of innocent victims out-of-sight.
The United States position on negotiating a new international treaty on fully autonomous weapons is that it is “premature”, arguing that IHL, as it currently stands, is sufficient. Rather interestingly, China supports a ban on the use of autonomous weapons, but not on their development as they currently seek to develop themselves as a hi-tech military superpower, with a focus on machine-learning, AI and autonomous weapons systems. The United Kingdom, meanwhile, joined the United States in insisting that existing IHL is adequate and “has no plans to call for or to support an international ban” on such weapons. Opposition parties in Germany too have called on Chancellor Merkel to take a tough stand on the issue, arguing that without restraints, there is a very real danger of a new arms race. However, Merkel’s coalition voted down the motion, and critics point to German arms sales of “new weapons with autonomous functions” as playing a key role in that vote.
The Vice President of Heron, the small Maryland company that developed the algorithm that won the dogfight competition, said that despite ethics concerns, it is important to forge ahead with employing AI within military hardware because “if the United States doesn’t adopt these technologies, somebody else will.” Such a position simply ensures an acceleration of the race towards a global proliferation of robotic violence, noted by UN Secretary General, Antonio Guterres in his 2020 Report on Protection of Civilians in Armed Conflict. In the report, he stressed the “moral and ethical issues in allowing technology to decide whether to take a human life”, adding that the current absence of debate “leaves a policy vacuum that has to be addressed by Member States.”
In his Nobel Peace Prize speech, Obama’s warning-cum-US national security strategy, that “modern technology allows a few small men with outsized rage to murder innocents on a horrific scale”, would become the modus-operandi of the War on Terror. If the international community does not come together to curtail the further development of unmanned and autonomous lethal weapons, those few small men will become many.
ABOUT THE AUTHOR
Pauline Canham is the HRC Blog’s student editor. Pauline is studying a Masters Degree in Human Rights and Cultural Diversity at Essex, after 20 years in the broadcasting sector, working for the BBC and AlJazeera, with a focus on large change projects including the BBC’s move into the new Broadcasting House in 2013, and the re-launch of Al Jazeera’s Arabic Channel in 2016.
UK government considers human rights ‘opt-out’ to speed up asylum seeker deportations
The UK government is currently resisting requests by Brussels to give a formal undertaking to adhere to the European Convention on Human Rights (ECHR), as part of Brexit negotiations. The areas of ‘opt-out’ being considered would, as well as making it easier to deport refugees and asylum seekers, protect British troops from legal action, following operations overseas.
The government also pledged, in the Conservative Party manifesto, to “update the UK Human Rights Act” , following Brexit, and claim the issue is a matter of UK “sovereignty”. Meanwhile, evidence presented to the Joint Committee on Human Rights, this week, from ClearView Research, showed that 75% of black people in the UK “do not believe their rights are equally protected compared to white people”, 85% do not trust the police to treat them equally and 60% don’t feel that their health is equally protected by the NHS.
Human Rights Watch have said that the UK’s refusal to agree to respect European human rights law “risks EU cooperation on security and criminal justice” that helps to protect British citizens. Civil rights organisation, Liberty, said that the government’s intention to ‘update’ the Act is “dangerously misguided” and is heading to an environment of “some rights for some people some of the time”
Justice Secretary, Robert Buckland, dismissed the reports that the UK is planning to opt out of the ECHR, saying “such suggestions are for the birds”, adding that we should be focused on ‘streamlining’ our own laws. David Lammy slammed the idea, saying that abandoning human rights would “make life in Britain less secure and hold our country back on the world stage”.
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Huge fire destroys refugee camp on the Greek island of Lesbos
Almost 13,000 asylum seekers have been left homeless by a blaze, reportedly started by migrants unhappy at being isolated by COVID19 rules in the Moria camp. Fires broke out in three places and were whipped up by strong winds which spread the flames quickly through the camp, the largest on Lesbos. There are also reports that wildfires were already burning in the area and some suggest far right Greeks were involved with igniting the fire. Lesbos project co-ordinator for Médecins Sans Frontières (MSF), Marco Sandrone, told the BBC that determining the cause of the blaze was difficult with “several different fires and protests erupting in the camp” but that it was a “time bomb that finally exploded”.
The camp was over four times its maximum capacity and had been criticised by aid agencies for its “appalling conditions”. Thousands of people are now sleeping on the streets, with no protection from the elements and many families have lost the little belongings they had, fleeing with just the clothes on their backs. NGOs have been prevented by police from transporting people to hospitals and a cordon has been set up around the camp, preventing aid workers from getting in.
Just the day before, campaigners had placed 13,000 chairs outside the German parliament building, in a symbolic protest at conditions at the Moria camp, calling for its closure. The camp is designed to hold just 2,800. In total, there are 24,000 people in five camps on Greek islands that were built to house just 6,100. There are no immediate reports of casualties.
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5 years on from the crisis of 2015, migrants continue to die
The International Organisation for Migration (IOM) estimates that 554 migrants have died this year in attempts to cross the Mediterranean to Europe. During the migration crisis in 2015, 3030 people are believed to have drowned between January and August. In one incident in the last few days, a boat carrying dozens of migrants burst into flames as it was approached by the Italian Navy. Red Cross commissioner, Francesco Pascuzzo confirmed that up to seven migrants were feared missing and four were in hospital with serious burns. The remaining survivors were transferred to a “welcome centre”. The Mayor of Lampedusa has expressed his frustration as hundreds of migrants have arrived there in recent weeks, and has called for the whole island to go on “strike”. “We can’t manage the emergency and the situation is now really unsustainable” he said.
A vessel funded by Banksy, which rescued 200 people, over its safe capacity, was struggling to find a port to allow the migrants to disembark but was finally supported by the Italian Navy and a German charity rescue ship, after the UN Refugee Agency and IOM both called for European co-operation in allowing the migrants to be brought to shore. Five years after the peak of the migrant crisis in 2015, there is still no agreement on a mechanism for managing the hundreds rescued at sea.
Meanwhile more migrants are making the perilous journey across the English Channel, with 1450 making the crossing in August from France to Britain’s beaches. In a concerning development, the UK is planning to use hi-tech military drones, more used to operations in Afghanistan and Iraq, to provide an eye-in-the-sky over the channel. A spokesman for the MoD said: “The deployment of Watchkeeper provides further defence support to the Home Office in tackling the increasing number of small boats crossing the English Channel.”
The plight of African migrants is not confined to Europe. Mobile phone footage emerged this week showing conditions inside a coronavirus detention centre in Saudi Arabia. The detention centres are said to be an effort to control COVID19, known to spread among migrant workers who are housed in cramped conditions. The footage exposes tightly packed rows of emaciated men, scarred by signs of torture and detainees claim they are beaten with electrical wires and tell stories of those who have committed suicide after losing hope. Adam Coogle, deputy director of Human Rights Watch in the Middle East said the men are being held in “squalid, crowded, and dehumanising conditions, with no regard for their safety or dignity.”
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UK provides military training to repressive states
The 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.
“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.
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.
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 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 email@example.com
After 10 days of protests, Belarus President Lukashenko is escalating efforts to regain control, giving orders to crack down on unrest, saying “There should no longer be any disorder in Minsk of any kind.” His comments came after exiled opposition leader, Svetlana Tikhanovskaya called on EU leaders to reject the results of the election, which put Lukashenko on 80% of the vote.
Lukashenko meanwhile has accused the opposition of an “attempt to seize power” and is threatening action against 35 members of the opposition council which includes artists, writers and business people, whilst he gave awards to security officials assisting in the crackdown. One woman described her ordeal during 2 days of detention, where she witnessed a carpet of men’s bodies being kicked and beaten with batons by police officers in black uniforms. Some were “stripped naked, crouched on knees and elbows and the riot police were beating them to a pulp.”
Members of staff at state broadcaster Belteleradio have walked out, declaring the election “illegitimate”, with one presenter saying she could “no longer smile out from the TV screen” after what she described as a “crudely rigged election.”
The EU have declared their support for the people of Belarus following a summit in which they confirmed that they will pursue sanctions against members of the Lukashenko regime. “We don’t recognise the results presented by the Belarus authorities” said Charles Michel, the European council president. Angela Merkel confirmed the EU’s position, saying that the EU stands beside the peaceful protestors against President Lukashenko’s rule but “Belarus must find its own path” without “intervention from outside.”
Joanna Kazan-Wisniowiecki, UN Resident Co-ordinator in Belarus, expressed her concerns over “deeply troubling” allegations of the torture of detained protestors and has a requested an urgent meeting to discuss human rights issues with authorities. If the reports are confirmed, they would “point to systemic problems in the management and oversight of detention facilities in Belarus.” UN Secretary-General António Guterres said that authorities must “show restraint in responding to demonstrations” and underlined the importance of allowing all Belarusians to “exercise their civil and political rights.”
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The COVID-19 pandemic has had a disruptive impact on the education sector in India, as it has around the world. The imposition of a prolonged nationwide lockdown has rendered traditional classroom learning impracticable and has led to the advent of online education as an expedient tool to prevent further reduction of teaching hours. However, the adoption of e-learning tools raises concerns of inequitable access and further widening of the socio-economic divide. In this article, the authors argue for the adoption of a rights-based approach by the Indian state to address the widening digital divide and facilitate educational attainments.
Deeply entrenched inaccessibility
National Statistical Office data (2017-18) reveals that just 10.7% of households in India have a computer while only 23.8% enjoy access to internet facilities. The rural areas and the poorest households particularly bear the brunt of unequal access. Furthermore, the national figure for persons of above the age of 5 with the ability to operate a computer and the ability to use the internet also stand at a lowly 16.5% and 20.1% respectively.
A recent survey conducted in the state of Bihar has also revealed how structural factors constrain access. In many instances, the children in the family do not retain control over devices such as smartphones which are bare-minimum for online classes. The survey has also highlighted how gender-based disparities restrict access to e-learning for children. A disproportionate burden of the household chores often limits the participation of girls. Likewise, the boys in the family are also engaged in work as the pandemic has had an adverse impact on the family’s economic well-being.
Children with special needs are excluded from remote learning while many with disabilities are also struggling to attend online classes. As a consequence, distance-learning has increased the likelihood of drop-out rates. The integration of a rights-based paradigm must therefore be integral to an inclusive educational policy to bridge the digital divide as outlined by UNESCO.
Legal regime in India
The Karnataka High Court in India has recently issued an order to enable private schools to conduct online classes, limiting the screen-time in consonance with the Pragyata guidelines for remote learning, issued by the central government. The order was issued in response to a blanket ban on online education by the state government. The government decision had been challenged to be violative of Article 21A of the Constitution of India.
Article 21A (added by the 86th Amendment to the Constitution, 2002) imposes a mandate on the state to provide free and compulsory education to children between the ages of 6 and 14. The Right of Children to Free and Compulsory Education Act (hereinafter mentioned as the Act) was enacted in 2009 to pursue the goal of universal education in India. However, the current state of affairs demands a thorough re-evaluation of the existing regime in acknowledgement of access disparities. The definition of ‘access’ must be evolved from mere physical proximity to schools to include social, geographical and qualitative access to a formal, fully functional school with infrastructural facilities, learning materials and human resources.
However, access to internet and other e-learning facilities has been left outside of the purview as the Act did not envisage such a prolonged phase of social distancing, enforced due to the pandemic. Thus, the law is rendered ineffective under the present circumstances, failing to ensure effective and equitable access to online learning tools.
Education as a human right
An effective and equitable access to education requires policymakers to reimagine education as a human right in India. Section 9 (c) of the Act lays down that children belonging to disadvantaged groups must not be discriminated against and prevented from completing elementary education ‘on any ground’. A liberal interpretation of the provision offers a wider export to the phrase ‘on any ground’ to include digital access in its ambit. Moreover, Section 12(1) (c) requires unaided schools to provide ‘special facilities’ for students belonging to the economically weaker sections admitted in their schools and claim reimbursement for the same from the Central Government.
Lastly, the Right of Persons with Disabilities Act, 2016 also requires educational institutions and state authorities to provide ‘inclusive education’ to disabled children. The statutory mandate must be read in the context of a Kerala High Court decision, upholding a student’s right to access the internet within the right to life under the scope of Article 21 of the Constitution. The decision recognizes that internet connectivity is indispensable in the pursuit of holistic education.
The ‘balancing of rights’ approach is integral to adopting an inclusive education policy in the immediate future. The concept is not alien to Indian constitutional jurisprudence and has been affirmed in a landmark Supreme Court judgement which unequivocally pronounced the right to privacy. The apex court in India clarifies that that a balancing test must not be restrictive such that it constrains the effective operation of a fundamental right.
In the instant case, the fundamental right to free and compulsory education under Article 21A of the Constitution must be reinforced by the anti-exclusionary principle enshrined within the right to equality under Article 14. The provision of education has to be reinvigorated by the guarantee of non-discrimination such that no child is left to bear the brunt of digital divide. The disparate impact doctrine adds another dimension to the right to equality as it prohibits indirect discrimination resulting from facially neutral policies. India’s constitutional jurisprudence thus bears immense potential to reinvigorate the right to access education if a guarantee of internet access and non-discrimination is read into its ambit.
The existing jurisprudence on an inclusive education also requires states to ensure effective participation of children with disabilities in remote learning. In International Association Autism Europe v. France, the European Committee of Social Rights held that France had failed to significantly raise the proportion of children with autism being educated in either general or specialist schools in comparison to other children. Limitation in accessibility constituted indirect discrimination and was thus held to be a violation of the right to social integration for disabled children as mandated under the revised European Social Charter.
The Committee relied on the judgment of the European Court of Human Rights in Thlimmenos v. Greece which had laid down that the principle of non-discrimination under Article 14 of the European Convention of Human Rights ‘is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’. CESCR General Comment No.5 further requires states to provide necessary support to bring persons with disabilities ‘up to the same level of education’ as their non-disabled peers.
India’s National Education Policy, 2020 offers a cue to overcome the insurmountable barriers of exclusion in the long run as it seeks to adopt technological tools that would enable better participation and improve learning outcomes. There have been recent attempts to install digital screens at public libraries to enable access to online classes. Television and radio platforms have also been utilized to bridge the digital divide for students belonging to disempowered communities. The fundamental premise of a rights-based approach rests upon recognizing the educational needs of all children without discrimination. A comprehensive appraisal of children’s lived experiences thus can alone lead to the inception of innovative strategies that are truly equitable. The state has a positive obligation to ensure a wider reach of e-learning facilities by aiding educational institutions.
ABOUT THE AUTHORS
Shrutika Pandey is currently engaged with Human Rights Defenders Alert at New Delhi as a Litigation Assistant. She has previously written on topics concerning human rights in several national and international blogs.
Rongeet Poddar is a recent graduate of the West Bengal National University of Juridical Sciences and is set to join an Indian law firm. He has previously contributed to multiple blogs on commercial laws and human rights.
Police violate human rights in their use of facial recognition technology
Three 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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