How To Start A Human Rights Blog
Free Speech Protection for 'Public Watchdogs' in the European Court of Human Rights
For the second Global Justice Academy event of the current academic semester, Dr Dimitrios Kagiaros, Assistant Professor in Public Law and Human Rights at Durham Law School, presented his current research exploring the fundamental principles of freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). In particular, his work scrutinizes the meaning of the term 'public watchdog', which is a term applied to certain speakers (eg the press) who carry out the function of keeping the public informed on matters of public interest. The European Court of Human Rights offers such speakers added protection under the Article 10 framework.
Until recently, the courts identified only the press and NGO's as those who would be eligible for this protected status, but after a 2016 Grand Chamber decision in Magyar Helsinki Bizottság v Hungary the status was further extended to academics, authors of public literature, bloggers and popular social media users. In this case, the claimant was an NGO who was denied official information from the state police and challenged this under Article 10 of the ECHR. Dr Kagiaros explained what this extension of watchdog status means for rights and duties attributed to not only speakers, but also to the public who benefits from access to information and the state in terms of its obligations towards these public watchdogs.
According to the Court's case law on public watchdogs and the Magyar Helsinki Bizottság ruling, public watchdog status creates a negative obligation on the state to refrain from taking any action which would obstruct the watchdog of carrying out its function. It also includes positive obligations on the state to adopt a specific legal framework to protect public watchdogs and also to release official information to them, under circumstances, following a request . The decision also clarified that Article 10 places duties on public watchdogs to act responsibly when disseminating information which could be in the public interest. Increasingly, these duties are attributed to actors such as bloggers and popular social media users which Kagiaros argues that in today's social media culture is too broad of a concept to understand who exactly would be eligible for public watchdog protection and also who, as rights-bearers, should be obliged to fulfil certain duties when exercising their right to free speech. Kagiaros says these legal obligations and broadly identified eligible actors must be better specified. To that end, he suggests that rather than limiting the protection offered to public watchdogs to specific groups (eg, academics, journalists, NGOs) the Court should carry out a functional test when presented with a case relating to speakers disseminating information in the public interest.
This research is particularly relevant within today's social media climate and the frequent use of mobile phones to capture or record instances of everyday state injustice, like police brutality. Social media platforms have become an accessible space for receiving information and imparting information, which means determining who is a mere 'ordinary speaker' or a 'public watchdog' is becoming more complex. Along with this complexity is the matter of prioritising speech and how and what the courts consider information which is of public concern. Kagiaros emphasises the importance of protecting the act of imparting information which is of public interest as this is a prerequisite for a well-functioning democracy. These considerations become even more urgent in the context of transparency when dealing with matters such as climate change or interference with elections.
Kagiaros' lecture points to the important role played by certain public and private actors to draw attention to public wrongdoings, particularly of public officials, and the need to protect those who come forward with this information that is important to enable meaningful democratic participation. As explained by the court, Article 10 of the ECHR is the bedrock of democracy. So, in order to protect the person's right to freedom of speech and the public's right to receive information, we must ensure an effective free speech legal framework to protect those who impart information of general concern.
This news item was written by Judi Martin. Judi is currently reading the LLM in Human Rights at the University of Edinburgh. She is from Ireland where she completed her BA in History at Trinity College Dublin.
Reflections on UN Special Procedures
On 4 November 2021, the Global Justice Academy together with the Edinburgh Centre for Global and International Law hosted their first in-person seminar for the 2021-22 academic year at Edinburgh Law School. Professor Rhona K.M. Smith, who served two three-year terms as UN Special Rapporteur on Human Rights and Cambodia, engaged the audience with her reflections on UN Special Procedures. She is a Professor of International Human Rights and was head of Newcastle Law School at Newcastle University from 2016 to 2020.
UN human rights envoy Rhona Smith holds a press conference at the conclusion of her mission to the Kingdom yesterday. KT/Khem Sovannara
To ground her reflections, she opened with an overview on the Special Procedures of the Human Rights Council, and the distinctions between country and thematic mandates. She took the audience through the procedures for appointing the mandate holders and gave insight into gender and geographical balances and imbalances. Many in the audience were shocked to hear about the amount of time a UN Special Rapporteur dedicates to their mandate and particularly in light of the fact it is an unpaid position. Prof Smith critically reflected on the reasons given by the UN Human Rights Council for maintaining the unremunerated status of these roles. The Human Rights Council asserts that this gives independence to the experts, however, Prof Smith recognized that, in reality, not all experts or potential experts could afford this privilege. Ultimately, she said 'you need money to live'. This subject stimulated a lively discussion later in the session.
The core of Prof Smith's discussion focused on her behind-the-scenes experiences as a Special Rapporteur. She elaborated the three main roles of UN Special Procedures: advising, monitoring and reporting. Each of these roles serves a specific purpose in relation to fulfilling the mandate and each is enabled or limited in direct relation to the resources allocated to facilitate the work.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) plays a fundamental role is supporting the UN Special Procedures mandates. Prior to the Covid-19 outbreak, Prof Smith travelled on missions to Cambodia twice a year and reinforced the importance of communicating with the country through the OHCHR. Security measures were of upmost importance as every UN Special Procedure faces common death threats and other harassment. During missions, Prof Smith was able to gather information on the ground and meet with high-level government actors in order to develop a multilayered picture of human rights in Cambodia. She reflected on how she could make the most out of these visits because she knew the country already since she had lived there before being appointed to the UN mandate. During these meetings, she highlighted situations that would entail human rights violations, and suggested concrete actions that State actors could adopt to protect, respect and fulfil the human rights of people living in Cambodia.
In the end, Prof Smith reinforced that being a UN Special Procedure was both 'a huge honour and an amazing challenge'. On the one side, she was able to deepen her knowledge of human rights in practice and steer the improvement of the human rights for Cambodians. On the other, she faced the challenge of becoming a public figure in Cambodia and the risks associated with that publicity.
In closing the event, Prof Smith narrated a day in the shoes of a UN Special Procedure during a mission and reflected on how her experience contributed to her human rights teaching. Her frankness and honesty helped the audience understand what it means to be a UN Special Rapporteur. While there are clearly challenges, the rewards in assuming such a role within the UN, she demonstrated the practical importance that UN Special Procedures play in advancing the global protection, promotion and respect for human rights.
This post was written by Valentina Rioseco Vallejos. Valentina is a Chilean lawyer who holds an LLM in Human Rights from the University of Edinburgh. She is currently studying a PhD in Law, focused on incorporating a human rights approach to irregular migration. Valentina is a Research Assistant for the Global Justice Academy.
The women left behind. Long-term effects of enforced disappearances on Tamil women in Sri Lanka
This is the fifth blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Caroline Walka. Caroline is currently reading the LLM in International Law at the University of Edinburgh. She is from Germany, where she studied law at the Freie Universität.
The women left behind: Long-term effects of enforced disappearances on Tamil women in Sri Lanka
People around the world celebrate Valentine's Day on the 14th of February – for the Tamil population of Sri Lanka, the 14thof February has a different name and meaning. On "Missing Lovers Day", they instead celebrate their loved ones who forcibly disappeared during the civil war or its aftermath, and whose fates remain unknown today.
Background
The civil war in Sri Lanka occurred from 1983 until 2009 between the Sinhalese dominated government and the Liberation Tigers of Tamil Eelam (LTTE). The LTTE fought for an independent state for the supressed Tamil minority in Sri Lanka. After almost 30 years of fighting with only a few periods of cease-fire, the UN estimates the conflict caused around 100.000 casualties, with around 40.000 Tamils killed in the final months of the war alone[1]. The fighting was characterised by human rights violations and potential war crimes on both sides, including unlawful killings, torture and the recruitment of child soldiers.[2] However, one violation has affected and still affects more people than any other: The former Sri Lankan government has acknowledged that about 65.000 people have been victims of enforced disappearances from the eighties until today. Amnesty International even estimates it is up to 100.000 people.[3] While some of these were participants in a Marxist uprising in the late eighties, most of the victims are Tamils that were suspected of connection to the LTTE.[4]The majority remain missing or have been declared dead.
Enforced disappearances and human rights
Enforced disappearances are "the governmental practice of eliminating political dissidents while denying any responsibility or knowledge thereof"[5]. Statistically, between 70% and 94% of victims are male. The rights of these men to liberty and security (Art. 9 ICCPR), fair trial (Art. 14 ICCPR), and more, are often violated as a short-term effect.[6]
Photo from https://www.instagram.com/streetsoftamileelam/
However, research in recent years has shown that it is the women left behind who are suffering the long-term consequences, on-going violations of their human rights long after their husbands disappear.
Tamil men are traditionally assigned the role of the breadwinner, while women take care of the household and children. Consequently, when a Tamil man forcibly disappears, the woman has no choice but to take over and make money, although that is frowned upon by society. For many women, this also means a descent into poverty.
Often the family's assets – the house, bank accounts etc. – are listed under the man's name. In order to gain access to these and potential claims to a pension, wives have to let their husband be declared dead, even though they might face backlash for "giving up" on their spouse.
In addition to that, the constant stress caused by the uncertainty about the fate of their loved one can lead these women to suffer PTSD, depression and other mental health issues.
Finally, women living without a man are statistically more often exposed to violence, especially sexual violence. In order to protect themselves and return to a more stable position, the women can remarry. However, this is frowned upon in Tamil society. Therefore, a lot of women try to avoid a second marriage and instead live with their missing husband's family. There they might be seen as a "financial burden" and be treated unequally to the rest of the household.
When they are looking for their spouse, women often face harassment or aren't taken seriously by authorities.
All these consequences lead to a grave deterioration of the women's rights, including but not limited to the right to a standard of living, the right to health (Art. 11, 12 ICESCR) which in many cases still impact their lives today.[7]
Women fighting for their rights
As desperate some of their situations are, Tamil women have been fighting the violation of their rights as well as of their missing relatives' relentlessly. With the help of the UN and NGOs, they continue to protest, seek answers and demand reparations. Both of these parties play an important role as supporters, as the UN has the means to address the issue from the top, working with or exerting pressure on the government, while NGOs can work their way up from the bottom, addressing individual cases and fighting for awareness.
Photo from https://www.instagram.com/streetsoftamileelam/
The UN has taken several different steps to get an overview of the situation in Sri Lanka and to guide the government in restoring human rights protections, including those of the family members of the forcibly disappeared. The UN Human Rights Council (HRC) has gathered information through Universal Periodic Reviews, the UN Office of the High Commissioner for Human Rights and Special Rapporteurs. Based on these reports, the HRC has issued several resolutions, the most important being 30/1 (2015). Therein, the HRC emphasizes the importance of the transitional justice framework of justice, truth-seeking and reparations of the families of the forcibly disappeared. It welcomes the establishment of a Missing Persons Office by the Sri Lankan government and its willingness to cooperate with the HRC to resolve the ongoing issue.
Amnesty International, Human Rights Watch and other NGOs have tried to draw up lists with names of the disappeared to support the women in their search. These lists have been sent to the Sri Lankan government with an urgent appeal to provide the families of the victims with information regarding their whereabouts.
However, since the election of President Gotabaya Rajapaksa in October 2019, the process of restoring the victims' human rights has come to a halt. Rajapaksa, who was Defence Minister during his brother's presidency and the last years of the war, has withdrawn Sri Lanka's support of HRC resolution 30/1. Instead,reports on new enforced disappearances and threats made towards those searching for their missing relatives and human rights activists are becoming more and more regular.
But however great the adversity they're facing, Tamil women are not giving up. Starting on the 03rd of February, many took part in a march from the South to the North of Sri Lanka, again protesting for the restoration of their human rights and those of their missing loved ones.
[1] Report of the Secretary-General's Panel of Experts on Accountability in Sri Lanka, 31 March 2011, https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/POC%20Rep%20on%20Account%20in%20Sri%20Lanka.pdf, p. 41.
[2] Ibid., ps. 9 et seqq.
[3] ""Only Justice Can Heal Our Wounds" – Listening To The Demands Of Families Of The Disappeared In Sri Lanka", Amnesty International, https://www.refworld.org/pdfid/58e200c04.pdf, p. 7.
[4] Ibid.
[5] Grossmann, C. M., "Disappearances", Max Planck Encyclopaedias of Public International Law.
[6] Vitkauskaite-Meurice, D., Zilinskas J., "The Concept of Enforced Disappearances in International Law", Jurisprudencija Vol. No. 2 (2010), 197, 198.
[7] An overview over the consequences for women: ""Only Justice Can Heal Our Wounds" – Listening To The Demands Of Families Of The Disappeared In Sri Lanka", Amnesty International, https://www.refworld.org/pdfid/58e200c04.pdf, ps. 15 et seq.; Dewhirst, P., Kapur A., "The Disappeared and Invisible – Revealing the Enduring Impact of Enforced Disappearance on Women", International Center for Transitional Justice (2015), ps. 6 et seqq.
#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)
GJA Admin Africa, Asia, Gender, Health, Middle East, SDG, South America, UNCEDAW, UNCRC, Women
This is the fourth blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Evelyn Strutynski. Evelyn is currently reading the LLM in International Law at the University of Edinburgh. She also obtained a Bachelor of Arts degree in Political Science and Law at the Ludwig-Maximilians-Universität München in Germany.
#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)
Over the last decades, much has been achieved to reduce the prevalence of FGM around the world. In 2015, the UN announced new development goals, including the initiative to completely eliminate FGM by 2030. Nonetheless, the procedure still is a highly salient issue. In 2021, more than four million girls are at risk of undergoing FGM and, overall, approximately 200 million girls and women alive today have been subjected to the practice in 31 countries. This blog post will examine the relationship between FGM and international human rights law as well as the global efforts to eliminate FGM.
What is female genital mutilation?
The WHO defines FGM as "all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons". The procedure is predominantly carried out by traditional circumcisers who use scissors, razor blades or broken glass. Increasingly, trained health care providers perform FGM ('medicalisation'). The WHO has identified four different types of FGM; one of them is called infibulation which narrows the vaginal opening with a covering seal by, for instance, repositioning the labia minora or stitching.
FGM affects girls and women worldwide, the majority of them are cut before their 15th birthday. It is predominantly practised in Africa; furthermore, it occurs in countries in the Middle East and Asia, and in certain communities in South America. The practice is nearly universal in Somalia, Guinea and Djibouti where more than 90% of girls and women have undergone FGM. The practice is cultural rather than religious, since no religion requires it; nonetheless, religion is often used as a justification. Other reasons for FGM are, inter alia, psychosexual, for example, to control women's sexuality, or sociological/cultural, to guide a girl into womanhood. FGM causes severe health issues; they range from infections, mental health or menstrual problems to the need for surgeries or even death.
Photo by UNFPA/George Koranteng
The relationship between FGM and international human rights law
FGM "violates a number of recognized human rights protected in international and regional instruments"[1]. Kandala and Komba identified five rights that are breached by the practice:[2]
- Child rights – Most girls and women undergo FGM before their 15th birthday. Art. 16 of the Convention on the Rights of the Child, for instance, prohibits any interference with the privacy of children; furthermore, Art. 24 (3) urges states to adopt "measures with a view to abolishing traditional practices prejudicial to the health of children".
- Right to health – FGM causes serious health issues, which breaches, inter alia, Art. 12 (1) of the International Covenant on Economic, Social and Cultural Rights. The provision guarantees the right to the highest attainable standard of physical and mental health.
- Right of women to be free from discrimination – According to an Interagency Statement, the procedure is a "manifestation of gender inequality that is deeply entrenched in social, economic and political structures" and it "represents society's control over women". Hence, Art. 1 of the Convention for the Elimination of all Forms of Discrimination Against Women is applicable, as well as Art. 2, which urges states to fight discrimination.
- Right to life and physical integrity – FGM violates Art. 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to liberty and security of a person.
- Right to be free from torture – FGM might also amount to torture, which is prohibited by, inter alia, Art. 7 of the ICCPR. The Convention Against Torture has a high threshold for torture; this fact might be problematic, as not all FGM procedures legally qualify as torture.[3]
Supporters of FGM point out that the right to culture, religious freedom and the rights of minorities justify the practice.[4] However, the breaches of the aforementioned human rights are more severe, since FGM undeniably harms the bodily integrity of girls and women and intensifies gender inequality. Furthermore, the conflicting rights are not absolute and may be limited[5] in order to protect girls and women. Generally, there is a lack of jurisprudence regarding FGM and human rights[6]; many cases, such as M.N.N v. Denmark or M.J.S. v. The Netherlands, focus on the risk of undergoing FGM in the event of a deportation.
International response to FGM
A range of international organisations and institutions takes part in the effort to eliminate FGM. For instance, the UN General Assembly adopted Resolution 67/146, which emphasises that FGM is an "irreversible abuse that impacts negatively on the human rights of women and girls". The UN Secretary-General published a report, which demands that states should, inter alia, implement legislation that criminalises the procedure. Furthermore, the Committee on the Elimination of Discrimination against Women published General Recommendations Nos. 14, 19, 24 with regard to FGM. In 2020, the UN Human Right Council adopted Resolution 44/L.20, which "urges States to condemn all harmful practices that affect women and girls, in particular female genital mutilation".
UN Photo
Are human rights enough?
The universal recognition that FGM undoubtedly breaches international human rights law is an important step in order to eliminate the practice. Because of human rights, FGM is now part of a broader social justice agenda and of an increasing effort to hold governments accountable[7]; additionally, FGM is "viewed through a prism that recognizes the complex relationship between discrimination against women, violence, health and the rights of the girl child"[8].
However, this recognition alone is not sufficient, the law must be implemented and enforced on a national level. Furthermore, since FGM is such a deeply entrenched practice, a deep-seated social change within each community is needed; the Interagency Statement suggests initiatives like 'empowering' education, public dialogue or using alternative rituals. Overall, the efforts so far have been at least partly successful, as the prevalence of FGM declines steadily; however, the progress needs to be ten times faster in order to reach the 2030 goal. Population growth and COVID-19 are further impediments to meeting the target.
[1] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 20.
[2] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 190-192.
[3] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 192.
[4] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 31.
[5] Ibid., 38.
[6] Ibid., 20.
[7] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 39.
[8] Ibid.
Human Insecurity: Can 'ISIS Brides' Be Victims of Human Trafficking?
GJA Admin Conflict, Gender, Human rights, Human Trafficking, ISIS, Middle East, Palermo Protocol, Security, Sexual Violence, UNCRC, Women
This is the third blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. The series celebrates the top five blogs selected in a class competition. This blog is by Isobel Murray John. Isobel is from the Highlands of Scotland and finished her LLB at Edinburgh University before taking a year out and returning to read the LLM in International Law. You can follow her on Twitter @IsobelMurrayJo1.
Choice or coercion? Can 'ISIS brides' be victims of human trafficking?
Human trafficking exists in many shades of grey. A standard victim profile simply does not exist. Restricting who we consider as legally legitimate victims may leave those who do not fit the traditional mould, open to further exploitation. An example of when lines seem blurred, often to the detriment of the 'victim', is seen in the case of girls who are 'recruited' to become brides for ISIS. Often as young as 15 they are lured by promises of a more religiously fulfilled life with a loving husband. Yet they often find themselves forced to live as slaves with little regard for their fundamental human rights. The global narrative surrounding these girls centres around the fact that they made the choice to travel to join ISIS, and therefore how could they possibly be victims of human trafficking. This blog post will examine this flawed narrative and explore how the legal definition of 'human trafficking' can actually fit the exploitive circumstances these girls find themselves in. There should be more acknowledgment and empathy from society rather than disgust and ostracism.
Current international law on human trafficking
To understand whether 'ISIS brides' could be considered as victims of human trafficking it is necessary examine if the current international law can be applied. Most importantly, the United Nations' Protocol to Prevent, Supress and Punish Trafficking in Persons (Palermo Protocol) states that trafficking is the:
Recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit.[1]
Exploiting people deceived into that position is the key element of trafficking. There is no 'one-size fits all' standard definition of exploitation. The Palermo Protocol notes that exploitation can include; sexual exploitation, slavery and forced labour or services.[2] So can these young girls who find themselves lured in by ISIS recruiters be considered as having been deceived and exploited? They are certainly deceived by tales of the 'joys of sisterhood' and the promise of love and religious fulfilment. The groups aggressively groom and manipulate these girls, often over social media,[3] showering them with praise and flattery. Once they arrive they almost instantaneously become the man's property, and find themselves forced into virtual slavery.
Are ISIS brides exploited?
AFP/Getty Images
Montgomery notes that these women find that their role is, "is circumscribed for childbearing, marriage, cooking and cleaning, and they may not even be able to leave the house."[4] One told of being 'gifted' to her husband's friends and raped until she would
pass out. Another was trafficked at 14, married against her will, pregnant by 15, then again at 16. The realities of stoning's, beatings and sexual slavery, not to mention the torment of being constantly pregnant is not something you would wish on your worst enemy let alone a child. Yet the fact that many of these girls are under the age of 18 when they first become exposed to this deception and coercion, thus legally considered to be children according to the United Nations Convention on the Rights of the Child, seems to be forgotten.[5] The UK Government Home Office guidance on human trafficking acknowledges that young people and children, due to their dependent status, will be far more susceptible to psychological coercion. It even states that individuals may appear as "willing participants".[6]
Unrepentant or brainwashed?
These girls face huge stigma and backlash based on their 'choice' to leave their own countries and join these groups. They are believed to have made these judgements clearly and in sound mind, and therefore the punishment should be representative of this. Yet how much of a choice is it? Domestic judicial systems must recognise the likelihood that these girls have been trafficked. Understandably, each case should be judged on individual circumstances as the complexity of motivations and roles of these woman is diverse.[7] Often however, the hallmarks of the Palermo Protocol's definition of trafficking are present. These girls are groomed and deceived into making the decision to travel to join ISIS. Once there, they move around with the group, are sexually exploited and treated in a manner which totally denies their dignity and fundamental human rights.[8]
Credit: Anthony Loyd/The Times/News Licensing
Famously, Shamima Begum has been described as "unrepentant and without regret" when asked about her decision to leave the UK and marry a Dutch ISIS fighter. Consequently, she, along with many other British women, has been stripped of her citizenship on the basis of 'security fears'. Hannah Arendt poignantly describes citizenship as the "right to have rights". Such an extreme response- to strip these women of their citizenship- should only be justified by unmitigated wrongs and must fully recognise the individual circumstances. The phrase 'recruit' is often used when describing these women, which only encourages a global narrative that such women are not victims but equitable with male fighters. The women will sometimes fight too, but the fundamental issue is that women are not lured to ISIS for to their fighting ability. It is the male sexual appetite and the securing of a future ISIS generation which prompts the demand for women. They are deceived and exploited purely for their bodies.
How to move forward?
Further guidance should be provided on the application of the Palermo Protocol for cases which are not clear-cut, particularly regarding potential victims of trafficking by terrorists. Additionally, domestic legal systems should examine their implementation and interpretation of the protocol in such cases. The assumption in general discourse around trafficking is that it happens from a 'poorer' country to either another similar country or a 'wealthier' country. It is seen as inconceivable that victims may be transported from the West to less affluent and war-torn countries such as Syria. There is no standard victim of human trafficking. 'Willing participation' does not justify ignorance of circumstances that may well fit the legal definition of trafficking. While it should be reinforced that this may not mitigate potential crimes these young women may have committed, it must be taken into account. Very often they are deceived, coerced and brainwashed before being exploited for their bodies. This cannot be ignored.
[1] UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, Article 3(a).
[2] Ibid
[3] Gladstone, R, "Twitter Says It Suspended 10,000 ISIS-Linked Accounts in One Day." New York Times. 9 April 2015
[4] Katarina Montgomery, 'ISIS Recruits Brides to Solve Middle East 'Marriage Crisis', Syria Deeply, (2015).
[5] UN Commission on Human Rights, Convention on the Rights of the Child, 7 March 1990, E/CN.4/RES/1990/74, Article 1.
[6] UK Home Office, 'Modern Slavery: Statutory Guidance for England and Wales (under s49 of the Modern Slavery Act 2015) and Non-Statutory Guidance for Scotland and Northern Ireland, January 2021, at Section 2.18.
[7] Cook, J & Vale G, 'From Daesh to Diaspora: Tracing the woman and minors of Islamic State.' ICSR Report, Kings College London (2018), at p.26.
[8] Binetti, A, 'A new frontier: human trafficking and ISIS's recruitment of woman from the west', Information2Action, Georgetown Institute for Woman, Peace & Security, (2015) at pp.2-3.
Human Insecurity: Food Insecurity in the UK during COVID-19
GJA Admin Covid-19, food, food security, ICCPR, ICESCR, Immigration, Inequalities, Pandemic, Refugees, right to food, Scotland
This is the second blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. The series celebrates the top five blogs selected in a class competition. This blog is by Leah Cowling. Leah did her undergraduate degree in Philosophy and Politics at Edinburgh before starting the LLM in Human Rights. She is currently working on a project to complete settled status applications for EEA nationals living in Scotland. You can follow Leah on Twitter @_leahcowling.
No One Should Go Hungry Because of Their Immigration Status: Food insecurity in the UK during COVID-19
It wasn't long into the UK's first lockdown that the promise of the COVID-19 pandemic as a great leveller began to ring hollow. It is now clear that the effects of the pandemic have been experienced asymmetrically across the globe – demonstrating that COVID-19 does discriminate, in that it exacerbates existing inequalities.
Described as the best vaccine against chaos, food takes on a central role in times of crisis. During this pandemic, food has been revealed to be the lynchpin upon which other rights depend. Footballer Marcus Rashford's successful campaign to force government U-turns on the decision to halt free school meals highlighted one aspect of this interdependency; without nutritious food, children cannot exercise their right to education.
COVID-19 has also demonstrated that the distribution of food is microcosmic of larger structural, political, social and economic inequalities – as the wealthy stockpiled pasta, foodbank use skyrocketed, with the independent food bank charity IFAN reporting a staggering 88% increase in use.
While headlines were dominated by Rashford's campaign to reinstate free school meals, the situation of food insecurity within migrant communities during COVID-19 often appeared to be an afterthought. Following the threat of a legal challenge, the free school meals policy was partially extended in April 2020 to some individuals without formal immigration status and subject to No Recourse to Public Funds (NRPF) conditions, on the grounds that 'no child should go hungry because of the immigration status of their parents'. No doubt a welcome challenge, this statement stops short of the universal acknowledgment that no one should go hungry because of their immigration status.
Statistics from the Trussell Trust. Illustration by Issey Medd
Underreported is the experience of food insecurity by migrants, refugees and asylum seekers in the UK whose access to affordable, nutritious and culturally appropriate food has been threatened by the existence of the work ban and inadequate state support. For many, the closures of community centres, charities, churches and support groups due to lockdown restrictions represented the severing of a crucial lifeline. Reports from March 2020 suggested that approximately 1 million undocumented migrants were plunged into severe food insecurity, with many forced to access food banks.
Numerous volunteer-run, grassroots migrant support groups, such as the Unity Centre in Glasgow, responded to the increased need with deliveries of essential food and medicine. This support was given to all those in need, including to those isolating in cramped asylum accommodation with young children. This community-led response is emblematic of a larger problem, in which support from the third sector allows the government to evade accountability for failing to protect fundamental rights.
The legal basis of the right to food
The right to food is a clearly defined legal right, articulated in a number of international human rights instruments, such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) – both of which the UK is a signatory to. The right to food obliges governments to enact laws which respect, protect and fulfil the right to food, to ensure that all people are able to feed themselves in dignity. Crucially, the right to food is universal, applying to all individuals within a state's borders, regardless of immigration status, and without any form of discrimination.
Illustration by Issey Medd
In its 2016 report on the UK, the Committee on Economic, Social and Cultural Rights (CESCR) which monitors the implementation of ICESCR, noted its concern about the lack of adequate measures 'to address the increasing levels of food insecurity […] and the lack of adequate measures to reduce the reliance on food banks.' Notably, while commenting on the inadequate protection of the right to health among migrant populations, the report fails to comment specifically on the food insecurity experienced by migrants. This omission reflects a trend in which the issue of food insecurity in migrant communities is overlooked.
Considering possible solutions
Clearly, increased foodbank capacity is not a solution to rising food insecurity amongst migrant populations. Foodbank use represents the tip of the food insecurity iceberg; a symptom of pervasive structural barriers to the ability to access food in dignity. As such, we should not confuse food charity with the right to food.
In recognition of this, foodbank charity Trussell Trust recommended a £20 uplift to Universal Credit payments, which is expected to be extended in the March 2021 budget. While the £20 uplift has reduced the reliance on foodbanks for many, this policy continues to exclude those who are unable to access Universal Credit on account of their immigration status.
A possible legal route is through incorporation of the right to food in UK law – advocated for by civil society groups, such as Sustain, Nourish Scotland and the Scottish Food Coalition. It is argued that explicit recognition of the right to food at the domestic level would help individuals articulate demands on the government, and create more legal avenues to challenge government policy.
Incorporation of the right to food in Scotland appears increasingly likely with its proposed Good Food Nation Bill. It is encouraging to see explicit recognition of those who were 'already food insecure before the crisis hit, including many refugees and asylum seekers who have no recourse to public funds', but the Bill must be supplemented with specific and detailed analysis of nutritional vulnerabilities experienced by migrants in Scotland.
Looking forward
An important step towards food security following the effects of COVID-19, the incorporation of the right to food in Scotland offers an opportunity to embed the right to food within in a broader rights-based framework.
However, full realisation of the right to food will require appreciation of the linkages between hostile environment policies and food insecurity, as well as the multiple layers of discrimination faced by migrants in the UK. This must include calls for the removal of the NRPF immigration condition, and for increased asylum support payments in line with Universal Credit.
An integrated, person-centred, rights-based approach to food security in a post COVID-19 landscape will require commitment to the uncontroversial statement that no one should go hungry because of their immigration status.
Human Insecurity: COVID-19 and Women's Rights
This is the first blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Alexandra Oancea. Alexandra is current reading the LLM in Human Rights at the University of Edinburgh. She is from Brussels, Belgium, and holds an LLB in European Law from Maastricht University, the Netherlands.
COVID-19 and Women's Rights: The Negative Impact of the Pandemic on Women's Access to Sexual and Reproductive Health Services
As evidenced by previous global health crises such as Zika and Ebola, pandemics exacerbate pre-existing gender inequalities, and the COVID-19 outbreak is no exception to this trend. The United Nations was warning governments as early as April of 2020 that the impacts of COVID-19 were disproportionately falling on women and urged them to adopt a gender-sensitive response to the crisis. In the field of healthcare, as resources are being diverted and lockdown restrictions tightened, women's access to adequate health services is being heavily threatened. Within this context, this post will disclose how the current pandemic is endangering women's access to sexual and reproductive health (SRH) services, how this in turn contravenes their fundamental human right to health, and why a gender-sensitive response to the pandemic is therefore required.
COVID-19 and Women's Access to SRH Services
While ensuring access to SRH services to women has always been a challenge, COVID-19 intensifies the issue in many ways. As acknowledged by the World Health Organisation, following the outbreak, health systems around the world became overloaded, causing governments and health facilities to prioritise certain health services, while scaling back others. This has led to a reallocation of funding and resources for SRH services to the pandemic response. For example, in countries such as Romania and Slovakia, the breakout of the pandemic led governments to deprioritise abortion services, no longer deemed as essential. Furthermore, the measures imposed by States to limit the propagation of the virus meant that women in various contexts were no longer able to physically access time-sensitive services. Indeed, travel restrictions and stay-at-home orders deprived women
Photo by Tim Douglas
and girls of family planning services, and in countries where abortion is illegal or strongly restricted, prevented women and girls from travelling to neighbouring countries to undergo a procedure.[1] According to Marie Stopes International, a NGO providing contraception and abortion services around the world, the pandemic has prevented 1.9 million women to access their services between January to June 2020. The pandemic also disrupted supply chains, resulting in shortages in contraceptive products and unavailability in pharmacies. Additionally, the pandemic has been leveraged in some countries to limit access to services such as abortion.[2] In Poland and Texas, lockdown was used to introduce abortion restrictions and ban procedures.[3]
These recent developments highlight the lack of attention that is currently afforded to SRH services by governments around the world. This neglect has dire consequences for women's health: it can lead to a rise in maternal and new-born mortality, unwanted pregnancies, sexually transmitted diseases such as HIV, and unsafe abortions.[4] In addition, a failure to address women's SRH needs goes against States' international human rights law (IHRL) commitments, and more specifically their obligation to protect, respect, and fulfil women's right to health and provide them with adequate access to healthcare.
Access to SRH Services as a Fundamental Human Right
The right to health is protected under various IHRL documents being widely ratified. For example, the United Nations International Covenant on Economic and Social Rights (ICESCR) recognises "the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further reiterates the importance of this right by placing a duty on states to eliminate discrimination against women in the field of healthcare. According to the CEDAW Committee, the body monitoring the implementation of CEDAW, this duty requires states to ensure that women have timely and affordable access to healthcare services, including SRH, and to eliminate barriers in accessing such services. Considering the developments outlined above, such duty seems to have been disregarded by governments when fighting COVID-19. However, while states are allowed to derogate from some of their human rights obligations in emergency situations such as the current pandemic, there are limitations. Under international law, emergency measures must, among others, reflect the principles of equality and non-discrimination. In other words, states are under a duty to provide women with access to SHR services, and this is true even during a global pandemic. Failing to do so would be discriminatory and would run counter to states' international law commitments. In order to fully observe women's rights, states therefore need to be mindful of this legal framework when designing measures to stop the spread of the virus. As evidenced below, this will require them to incorporate a gender-sensitive perspective into their COVID-19 responses.
The Way Ahead: A Gender-Sensitive Approach to Tackling the Virus
As declared by the United Nations, "states have a responsibility to ensure that everyone is protected from the virus and its impact" and "this may require special measures and protection for particular groups most at risk or disproportionately impacted". In the context of women, protecting them requires governments around the world to integrate a gender perspective within their COVID-19 responses, something advocated by the World Health Organisation. This would allow states to better understand women's needs and the negative impacts they experience during this pandemic. To do so, UN Women recognises the need for governments to issue policies protecting women's SRH rights. One step in that regard is making sure that SRH services are identified as high-priority categories when deciding which services will be prioritised during the pandemic. Additionally, in order for women to physically access those services despite lockdown and travel restrictions, various measures could be taken by governments. Those include allowing women in need
Photo by Flavia Jacquier
of SRH services to be temporarily exempted from travel restrictions in order to ensure access. Furthermore, legal barriers to telemedicine services and at-home abortion pills should be removed, and their use should be promoted by States.[5] This step has been taken in the United Kingdom where women are now able to receive tele-consultation and to self-administer abortion drugs at home. Another way to promote women's SRH rights is to remove any unnecessary requirements to access SRH services such as multiple provider authorisation, waiting periods and third-party consent for abortion procedures.[6] Finally, states need to include women at the decision-making table. Indeed, as reiterated by the UNFPA, women are more likely to have less decision-making power regarding the policies and decisions taken to respond to the pandemic, leading their SRH needs to be largely unmet. It is therefore essential for them to be included and to ensure their equal participation in all policy and decision-making regarding the crisis, something that was stressed by the CEDAW Committee in its Guidance Note on COVID-19.
However, the above-mentioned proposed measures merely constitute short-term ways to alleviate the issues women are facing during this pandemic, and it is still essential for States to engage in larger-scale reforms. In fact, the inequalities discussed in this post were already prevalent pre-COVID-19 and were simply exacerbated during the pandemic. In this way, the current situation reinforces the call for government to not only adopt a gender-sensitive response to the current global health threat, but also to develop a well-developed system to fight similar crises in the future in a way that is mindful of women's experiences. Only this approach, which ensures the inclusion of women and acknowledges the different ways they experience the pandemic, can ensure that States will design measures impacting both men and women in an equal and non-discriminatory way, in accordance with their obligations under IHRL. While promising gender-sensitive practices are emerging, they are far from being uniform, and as lockdown measures and COVID-19 restrictions remain the norm around the globe, it is essential for States to take more active steps to acknowledge and respond to women's specific needs.
[1] Julia Konowrocka, 'Let's Talk About Sexual and Reproductive Health and Rights Not Fully Implemented Before Covid-19 & Suspended during the Pandemic' (Equinet, 14 September 2020) <https://equineteurope.org/2020/lets-talk-about-sexual-and-reproductive-health-and-rights/> accessed 26 February 2021.
[2] Center for Reproductive Rights, 'Sexual and Reproductive Rights During COVID-19: Response and Beyond' (June 2020) 2.
[3] Audrey Lebret, 'Covid-19 pandemic and derogation to human rights' (2020) 7(1) Journal of Law and the Biosciences 14.
[4] United Nations Population Fund (UNFPA), 'Covid-19: A Gender Lens' (March 2020) p. 7; Organisation for Economic Co-operation and Development (OECD), 'Women at the core of the fight against Covid-19 crisis' (2020).
[5] Amnesty International, 'Exposed, Silenced, Attacked: Failures to Protect Health and Essential Workers during the COVID-19 Pandemic' (2020).
[6] Center for Reproductive Rights (June 2020) 1.
A Cosmopolitan Approach to the Chilean Constitution-Making Process
GJA Admin Blog, Chile, Citizenship and Belonging, Constitutional Change, Democracy, Freedom of Expression, Gender, Human rights, Inclusivity, Latin America
Constanza Nuñez
This post is by Constanza Nuñez, a Ph.D. candidate at University Carlos III of Madrid (Spain). LL.MM in Advanced Human Rights Studies (University Carlos III Madrid). Researcher at Human Rights Center (University of Chile). You can follow Constanza on Twitter @cnunezd.
History in the making
On October 25th 2020, in a historical referendum, the Chilean people decided by an overwhelming majority to vote in favour of a new constitution that will replace the Pinochet's constitutional legacy. Chileans also voted that a wholly elected constitutional convention should enact the new constitution. The Constitutional Convention that will draft the new constitution will have gender parity composition and have reserved seats for indigenous peoples. Both of these positive measures contribute to Chile taking a more cosmopolitan approach to constitution-making.
photo by www.jpereira.net
The referendum was the result of a long process of social mobilization and protests. One of the meaningful slogans of the social movement was 'until dignity becomes custom'. Although dignity is an abstract concept (with multiple debates around its meaning), its linkage with fundamental rights is clear. Dignity is at the basis of human rights and constitutes an essential pillar of democratic political organization. The Chilean social movement demanded the guarantee of dignity should be the foundation of their political architecture and that it link to the development of a social and political system that respects, protects, and fulfils fundamental rights. This aims to counter a shared diagnostic of the government's treatment of its citizens that is characterized by 'abuse', 'inequality' and 'humiliation'. Also, it puts the existence of power imbalances that endorse unjustified relationships of domination at the centre of the problem. The abstract recognition of dignity in a Constitution, however, is not enough. It is necessary to build a social, legal, and political system that puts human rights and their guarantee (a concrete manifestation of dignity) at the centre of the creation of a new social contract between the citizens of Chile.
Global principles in constitution-making
Dignity is a concept that allows us to connect the Chilean context with the transnational social movements that, in recent years, have grown in the transnational public sphere. The idea that we share a common social, economic, and political system that is based on unjustified relationships of domination is a cross-cutting argument in the movements around the globe. The global character of our shared problems is clear in the existence of a common oppression system that endorses domination under mechanisms that combine economic domination (neoliberal globalization), gender domination (patriarchy), race domination (neocolonialism) and ecological domination (the exploitation of natural resources). In this context, transnational social movements are united by a universalistic cry for dignity and by a demand for the end of domination. There is an emerging global conscience of shared vulnerability that connects the fight of the Chilean people with the struggle for rights around the globe. Their fights are the fights of us all.
photo by www.jpereira.net
The Chilean constitution-making process is also a matter of global interest because it has developed in a context that is particular to global constitutionalism. There are multiple threats emerging to rule of law, human rights, and democracy under the pressure of populism and authoritarian constitutionalism. Chilean constitutionalism can provide new perspectives to those questions that have not yet been answered in comparative constitutionalism studies. A preliminary contribution has been made through the constitutional convention with gender parity, which is the first experience of such a kind inglobal constitutionalism. One of the unique elements of this constitution-making process is its historical background, which demands answers to global challenges that other constitution-making processes have not faced. As humankind, we must confront global warming and the question about the existence of the human rights of future generations. Furthermore, there are other debates that modern constitutionalism has not provided full answers to yet, for example, how to address transnational migration or recognise the contributions of global feminism. The Chilean constitution must face those challenges and at the same time address its internal struggles for rights and democracy. In this context there emerges a question about how to respond to these challenges, from the local to the global?
This question highlights that the Chilean debate is a unique opportunity to restate the centrality of the 'trinity of global constitutionalism' (democracy, rule of law and rights) in a context of a crisis of those values, and it will allow constitutionalism an opportunity to provide an interpretation of those values from a global interdependence perspective giving new constitutional answers to contemporary challenges.
These elements – an emerging global consciousness about common oppression and global challenges to constitutionalism – situate the Chilean constitution-making process in a cosmopolitan context; this is a process that concerns all of humanity. Their debates are also our debates and their answers will impact our answers. The diagnostic about a context of interdependence and a common vulnerability is a challenge for the Chilean constitutional convention and for the international community. It is necessary to promote discourses where we persuade States and the international community to find solutions that are outside of the black-box model of modern constitutionalism, demanding a dialogue between the local and the global, providing a transformative view to overcome the global structure of injustice. These challenges highlight that the legitimacy of the new Chilean Constitution will be important not only within the deliberative conditions of the local debate, but also within global forums concerned with 'how the national constitution is integrated into and relates to the wider legal and political world', as suggested by Kumm. In this context, the Chilean constitution-making process must assume a 'relational sovereignty' perspective.
Hope in the Chilean process
The Chilean constitution-making process must be approached with hope but not naivety. The neoliberal legacy of Pinochet's constitution will not end immediately with a new democratic constitution in the context of global interdependence. Nonetheless, there is an open road that global constitutionalism must be aware of and that must be followed with interest. Confronting new sovereignist nostalgics, this is an opportunity to think in terms of possibility, to imagine new institutional Cosmopolitan alternatives for Chile and for the world , and that is a hopeful perspective.
The Spanish version of this blog can be found at https://mundosur.org/una-mirada-cosmopolita-para-el-proceso-constituyente-chileno/.
De-Mystifying The G-Word: Enforcement and Success of the Genocide Convention
UN Photo/Evan Schneider – 70th Anniversary of the Convention on the Prevention and Punishment of the Crime of Genocide.
This post by is by Oskar Granskogen Kjorstad, Alexandra Haider and Tess Gallagher. They are students enrolled in PLIT10063 'Human Rights in International Relations', an honours-level course in the School of Social and Political Sciences that explores the political and legal issues surrounding the international enforcement of human rights. As part of their online tutorial activities, students were asked to prepare a blog post about the enforcement of the Genocide Convention. This piece was selected as the standout among the many excellent submissions, chosen for its incisive commentary on the Darfur crisis and its excellent discussion of the Convention's broader application.
There is no shortage of forgotten conflicts in history that briefly capture the world's attention on their way through the news cycle before the next noteworthy event promptly takes their place in the spotlight. Darfur is an especially painful example of such a conflict. State-supported and ethnically motivated violence against the civilian population of Darfur has caused enormous suffering. Yet despite calls from civil society for states to intervene on the grounds that they are obligated to under the Genocide Convention, the international community took no meaningful action to stop the violence. What explains the apathy of the international community and the difficulty of enforcing the Genocide Convention in relation to Darfur?
One of the most basic problems with the enforcement of the Genocide Convention is the difficulty of consistently and accurately applying the legal definition of genocide to cases of mass violence. The Genocide Convention defines genocide as "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". Different international courts have variously understood this definition. In Srebrenica, the ICTY ruled that the 
murder of 7-8000 Bosnian Muslim men and boys met the legal definition of genocide, though this case was less obviously a genocide than the Holocaust, which led to the Convention. In spite of the wide span in cases identified as genocides, the ICC determined that the violence in Darfur did not amount to "the crime of crimes"- not because the violence was less horrific than expected, but because the particular nature of the violence was deemed not to meet the legal definition of genocide. The U.S., as well as many NGOs and scholars, reached the opposite conclusion. This lack of legal clarity makes it harder to effectively identify cases of genocide, which is a problem in the enforcement of the Genocide Convention. Confusion caused by these legal debates can be used as an excuse by states not to use the word "genocide", and so avoid pressure to act and subsequent legal obligations to end mass-atrocities.
If the definitional issue is overcome, another obstacle as to why the Genocide Convention is so rarely invoked lies in the semantic power of the word. Sardonically labelled 'The G Word', there is often a reluctance to utilise the word for fear of its connotations. Many argue that the term denotes absolute, totemic evil and thus should be treated with caution when used in political discourse. As a result, it is often replaced with other, more (supposedly) palatable alternatives, such as 'ethnic-cleansing'. Examples of this were seen in the US' refusal to condemn and recognise the Armenian Genocide; choosing instead to refer to it by the Armenian language phrase 'Meds Yeghern', or 'Great Catastrophe'. This was not without external pressure- such power does the word have that US officials were threatened with losing access to military bases in Turkey if they were to vocalise it. Of course, strategic imperatives often trump moral ones; and evasive terminology in this case appeared the only way to conciliate all sides.
Once the word is invoked however, the game appears to change. If word is weapon, does saying it signify battle? In cases such as Darfur, it appears not. Despite internationalcondemnation and adducing of the Genocide Convention, the violence in Sudan still continues. Numerous resolutions have passed all with limited, if not weak, success. This leads many scholars and critics to question the legitimacy of the Genocide Convention; does it exist to appease, rather than to act?
Given the poor track record of the state system in preventing genocides, there's a good case to be made for the former. A key explanation for this is that states put their self-interest above their obligation to prevent and punish genocide. States may circumscribe their response in ways that falls short of stopping the atrocities because they don't see total involvement as self-serving. Upon examination of the crisis in Darfur, this fundamental challenge to the enforcement of the Convention is evident. While the U.S. publicly recognised the crisis as a genocide, Secretary of State Colin Powell asserted that,
UN Photo/Evan Schneider
since the U.S. was already putting political pressure on authorities in Khartoum to halt the violence and was providing humanitarian aid to civilians, nothing more was required of it; the U.S. did not have to act to the extent that the Convention required because it was already pursuing narrow unilateral action. Similarly, although it is not formally labeled a genocide, Kurds are being killed en masse in Syria. While the U.S. has supported Kurdish rebels in the past, President Trump pulled American troops out of Syria in October 2019 on the basis that the conflict had "nothing to do with [the U.S.]", effectively leaving the Kurds without means to protect themselves. A problem that feeds into this is the absence of a clear enforcement mechanism to make states comply with their obligation to prevent genocide. All states are equally obliged to prevent genocide, which leads to a bystander effect by which no one feels obliged to make the first move.
These are some of the reasons why Darfur stands as a painful reminder of the difficulty and political unwillingness of keeping the promise of "never again".
Strengthening the UNCRC (Incorporation) (Scotland) Bill
This post is 2 of 2 by Dr Kasey McCall-Smith examining the UNCRC (Incorporation) (Scotland) Bill. This post highlights how stronger interpretive tools could strengthen the Bill and deliver a brighter future for children in Scotland. Dr McCall-Smith serves on the Expert Advisory Group on UNCRC Incorporation convened by the Children and Young People's Commissioner Scotland and the Scottish Alliance for Children's Rights (Together). @KMSonIntlLaw
In a previous post I presented some of the key triumphs of the UN Convention on the Rights of the Child (Incorporation) (Scotland) Bill (Incorporation Bill) that is currently before Scottish Parliament. This post suggests some ways in which the current Bill could be strengthened in terms of the interpretation of the UN Convention on the Rights of the Child (UNCRC) rights incorporated through Schedule 1 of the Bill. Expanding the interpretive scope further would better support the progressive realisation of children's rights, shore up protection for children with intersectional vulnerabilities and ensure that Scotland becomes 'the best place in the world to grow up'.
Match the Interpretive Tools Available to the Courts With Those of Scottish Ministers
One of the clearest ways in which the Scottish Parliament could strengthen the Incorporation Bill is to further enhance the interpretive tools available to courts when determining a question in connection with the UNCRC. At present, section 4 of the Bill outlines the 'things' that courts or tribunals 'may take into account' as: (1) the preamble of the UNCRC; (2) the articles directly incorporated through Schedule 1 of the Bill; and (3) provisions of the UNCRC and the articles that are not included in Schedule 1. The glaring gap is the failure to include the interpretive opinions or instruments of the Committee on the Rights of the Child (CRC) that oversees the international implementation of the Convention. These opinions/instruments include Concluding Observations on UK periodic reports, Final Views (on individual communications), General Comments and reports on 
general discussion days – in which the UK and Scotland have actively participated in both government and civil society capacities. Including these as interpretive reference tools is important in order to keep on top of international developments in children's rights, progressively realise UNCRC rights and to ensure that interpretations in Scotland track the specific advice of the CRC in terms of its engagement with the collective UK and broader international community. Notably, if the UK were to ratify the Third Optional Protocol on an Individual Communications Procedure (addressed in s5), that process would generate further instructive opinions on the implementation of children's rights in the UK that should, arguably, be a strong push factor for the UK.
The omission in section 4 of the Bill is intentional considering that Part 3 of the Bill brings these instruments in for the purposes of Scottish Ministers making, amending and remaking a Children's Rights Scheme that will document the arrangements put in place to fulfil their duties outlined in the Bill. Section 12(2)(a) details that
(2) In preparing the proposal, the Scottish Ministers—
(a) must have regard to
(i) any report of the United Nations Committee on the Rights of the Child under paragraph 5 of article 44 of the Convention that the Scottish Ministers consider to be relevant, and
(ii) any other reports, suggestions, general recommendations or other documents issued by the United Nations Committee on the Rights of the Child relating to the implementation of the Convention, the first optional protocol or the second optional protocol by the United Kingdom that the Scottish Ministers consider to be relevant, …
Though UNCRC Article 44(5) only make specific reference to the periodic reporting process, further practices, such as issuing general comments and holding days of discussion, has become a regular practice of the CRC and a key way in which the Committee can assess the most current information on children's rights implementation. Section 12(2)(a)(ii) appears to accommodate the variable modalities of interpretation generated by the Committee but the granular reference to suggestions or general recommendations under UNCRC Article 45(d) implies that the same tools of interpretation are not available to the courts. The variable reference to the use of treaty body jurisprudence as an interpretive tool is further complicated in that General Comments are specified as a tool when reviewing a Children's Rights Scheme in section 13(2) of the Bill but not expressly included when developing the Scheme under section 12.
While not viewed as binding by most States, the products of the treaty bodies are 
extremely important resources for interpreting children's rights and UK courts have increasingly made reference to them when determining legal questions relating to children. Furthermore, general international law recognizes the role of the treaty bodies as the ultimate interpreters of their respective treaties. Clarifying that the treaty body jurisprudence should be included in the judiciary's interpretation toolkit would help encourage culture change and reinforce the value of international human rights interpretation. Even if under Scots law the judiciary has the power to take anything it deems appropriate into account, if we are going to entrench the UNCRC in Scotland, there must be a tether to the jurisprudence of the CRC Committee.
Maximizing the Availability of Interpretive Tools
To be even more effective, the interpretive tools should be expanded to include relevant resources from other treaty bodies, such as the Committee on the Rights of Persons with Disabilities that oversees the Convention on the Rights of Persons with Disabilities. In cases where interference with children's rights involves the intersection of various identities, cross-referencing across the treaties is the best way to ensure the highest attention to the individual's needs. The recent experience of the right to education during the Covid-19 pandemic illustrates the value in maximizing the sources available in the interpretive toolkit.
During the UK lockdown one of the most common complaints was the breach of the right to education for children. Children with disabilities or socio-economic vulnerabilities or both were particularly impacted by the closure of the schools. While the Committee on the Rights of the Child has issued guidance on implementing the right to education (now rather dated), both the Committee on the Rights of Persons with Disabilities and the Committee on Racial Discrimination have provided far greater guidance in how to address 
the right to education for children that often suffer inequality due to their intersectional identities. To construct a minimum core to the right to education and offer guidance on how to deliver that under normal and extraordinary circumstances, such as those created during the pandemic, it is incumbent on decision makers to canvass the wide range of materials that are available. This does not mean that they must follow the treaty body interpretations to the letter. However, opening up the possible tools to which decision-makers may avail themselves is a clear step forward toward a holistic, human rights based approach to interpreting children's rights.
Make it Stronger to Make Rights Real
The consistent political rhetoric about adopting the 'gold standard' children's rights through incorporation of the UNCRC is not just about putting the static articles of a 30 year-old treaty into Scots law. It is about recognizing the dynamism and evolution in children's rights and their capacity to exercise them in the pursuit of creating a stronger, more inclusive society. Effective implementation will require the synthesis of a broad range of law and policy that responds to lived experience. The interpretive tools offered by the UN human rights treaty bodies provides an easy starting point for decision-makers. Explicit reference to these tools across all interpreters of children's rights under the proposed UNCRC Incorporation Bill would go a long way in ensuring that we make children's rights real in Scotland.
How To Start A Human Rights Blog
Source: https://www.globaljusticeblog.ed.ac.uk/
Posted by: browncatill.blogspot.com
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