Environmental Law in Practice

This post is by Andrea Schiber and is cross-posted with the KLS Law News Blog.

For the first seminar in the LLM Environmental Law Seminar Series 2016/2017, Kent alumnus Rufus Howard spoke about his journey from gaining an LLM in Environmental Law and Policy at Kent to becoming Director of Sustainable Development at Royal HaskoningDHV and beyond.

During the seminar, delivered on Monday 17 October, Rufus explained how the skills he had gained during his LLM had helped him throughout his career, his first job after graduating being a position at AMEC as an Environmental Consultant. Skills he highlighted, included: an appreciation of written/academic English, attention to detail, critical analysis, and the confidence to go back to the start of an issue and work through the information (or possible solutions) systematically.

Rufus currently specialises in the impact assessment of complex assets and contentious infrastructure projects. Moreover, he provides strategic advice to international businesses, financial institutions and governmental departments on environmental and social risk management. His work takes him all across Europe, Libya, Kazakhstan, South Africa and the USA.

He advocated the benefits of professional development through membership of appropriate institutions, such as the Institute of Environmental Management and Assessment (IEMA), the Institute of Directors (IoD), and/or the UK Environmental Law Association (UKELA). As well as providing opportunities for networking and participation in projects, Rufus said membership offers benefits such as career development and certification (in addition to employment and education), and support for their members.

Whilst Rufus continues to work part-time, he is undertaking a PhD at Kent to further develop and consolidate his career and knowledge. His working thesis title is: ‘Industry Evidence Programme: A Systematic and Evidence Based Approach to Impact Assessment.’

Rufus was thanked for sharing his divers and interesting experiences of environmental law in practice by the student organising committee (Simon Malih – Chairperson, Grant Williams -Introducer, and Harry Haycraft – Reporter), fellow students and lecturers.


The LLM Environmental Law Seminar Series has been designed specifically for students with an interest in the environmental law modules offered within the School’s one-year Master’s in Law programme, the Kent LLM.

Kent LLM students can graduate with a specialism in either Environmental Law orInternational Environmental Law by (i) opting to study at least three (out of six) modules from those associated with the specialism of their choice and by (ii) focusing the topic of their dissertation on their chosen specialism.

More information about environmental law research, events and academics at Kent can be found on the Environmental Law mini-site. More information about studying the Kent LLM (and choosing your specialism) can be found on our postgraduate pages.

Why an LLM? Why Kent? by Lumi Olteanu, LLM (Intellectual Property) Candidate.

canterburyWell, I guess the answer to the first question, in most situations, would depend on what one’s goals, both on the professional and personal level, are.

For many LLM students, these could mean academic “maturation”, a pathway to specialization into a particular field of law that they found interesting during undergraduate courses, or, why not, while practicing a certain profession, or even a new beginning in a whole new realm, or opening up one’s mind and soul to new opportunities. When I used to read about all the things listed above, before starting the LLM here at Kent and while working as a lawyer (working almost 60 hours of week, because, you know, this is what lawyers do), I have to admit that it all seemed like empty words or even cheap philosophy. The flaw in my reasoning was that I was very superficial in judging such an experience, I was reaching conclusions without actually experimenting the LLM life, just because I was thinking that “good things” or “good outcomes” are not possible and don’t just happen to people.

Fortunately, seven months after the first LLM thought had passed through my mind, life happened, whatever that means, and I have found myself in the Canterbury campus, living a dream which I was initially afraid to even “dream”.

So, why did I a choose Kent? The teaching methods that the KLS proposed for the subjects that I was interested in and the critical and cutting-edge approaches were indeed essential for my decision to come to Kent. However, there was another thing that somehow steered me to Kent. I have to recognize that I had applied for two other LLM programs based in London. However, after I had written the application letters for each of these three schools offering LLM programs (the one for Kent and the other two for the London-based law schools) I noticed that the one which reflected my personality, my true self and professional goals was the one for Kent.

Maybe, at a subconscious level, I was fascinated by the paradisiac location of the campus in Canterbury, and I found it very easy to get informed about the KLS through the friendly web site of the University and thanks to the courtesy and efficiency of the KLS staff. Now, I know for sure that all of the above are accurate and I have discovered additional advantages of being a KLS LLM student.

The most enchanting feature of the LLM program is its flexibility which allows you to choose three modules per semester from a wide variety of law subjects pertaining to different areas of law.

For example, you may choose to study Contemporary Topics in Intellectual Property pertaining to the Intellectual Property pathway – which I think is a one of a kind module which I could not find on the list of other LLM programs, focused on the very latest trends and developments in this area and Labour Rights in a Global Economy which pertains to the International Law pathway. So basically, the sky is the limit in terms of what to study J

Then there are a lot of FREE non-mandatory workshops and lectures available almost on a daily basis which aim at developing and/or improving, including but not limited to ones writing skills and soft skills (such as the Global Skills Award Program or the events organised by the Student Learning Advisory Service)(additional details will be available in a future post). I have registered for most of them to be honest because I know that such sessions are not only effective but are also a good training for a future job. Not to mention that when you have a real job you don’t have the time and the peace of mind necessary to assimilate properly all the information and tips which such training offer.

I am now living on campus (which is a first for me – I never experienced living in a dorm before) with other postgraduate students studying different master programs and I can say that this is truly amazing. Besides the fact that students here have such a diverse cultural background, I constantly learn about new subjects from different disciplines, which, invariably are connected to my desired LLM specialization which is Intellectual Property. Most of my flat mates are studying Computer Sciences, and this eventually led to discussions about the insights of the architecture of applications which we use on our smartphones and, eventually, discussions about how these are protected by copyright.

So, I am pretty sure that other universities offer similar LLM programs, similar campus conditions (of course I don’t think they offer landscapes like the one below, but anyways J) however KLS promises and so far has offered to me a life experience which will hopefully remain embedded in me for a lifetime.

THE COST OF LITIGATION: FURTHER REFLECTION ON THE WELCOME WEEK FILM SCREENING – THE WOMAN IN GOLD (2015). By Izunna Isdore Ozuo.

 

800px-gustav_klimt_046The film screening and discussion of the Woman in Gold* was part of the Welcome Week package organized by the Kent Law School for the Postgraduate Taught Students. Dr. Simone Wong, a Co -Director of Graduate Studies had earlier informed the LLM students that attendance to the film screening was as important as attendance to the compulsory Legal Research and Writing Skills Training Module – LW919 which will appear as pass or fail in our final transcript. Dr. Emily Haslam and Dr. José Bellido were there to moderate the discussion on the film screening. As expected, almost everybody attended the session.

The film centres on the recovery of a 1907 painting of Adele Bloch-Bauer (later renamed Woman in Gold) from the Austrian Government by Maria Altmann. The theme of the movie cuts across various aspects of law which include law and justice; law and cultural heritage, property law, wills law, restitution, the jurisdiction of courts, the lawyer-client relationship, international law, etc. However, of interest in this short discourse is the cost of litigation in various jurisdictions as the other areas were duly discussed in class.

It can be observed in the film that the Restitution Committee set up by the Austrian government denied the claims of Maria Altmann. Upon the denial of the claim of the paintings which included that of Bloch- Bauer (Woman in Gold), Maria and her attorney returned back to the US as the option available to them in Austria was elusive.  Maria and her attorney are informed that they can approach the Austrian Court for redress if they are disgruntled or dissatisfied with the decision of the Committee. However, the bad news is that the sum of $1,800,000 was required to be deposited in order to pursue the case in court based on the estimated worth of the property. Maria’s cause was then abandoned as she cannot afford such huge sums of money. At this juncture, it is worthy to note that litigation is not free in any jurisdiction. However, the amount payable by a prospective litigant or claimant varies from one jurisdiction to another. As the writer of this post is a Nigerian, it is apt that the happenings in that jurisdiction be examined in line with our reflection.

Basically, the hierarchy of courts can be found in section 6(5) of the Constitution of Federal Republic of Nigeria 1999 (as amended). In the said provision, we have amongst other courts the Federal High Court and the High Court of the State. These two courts are courts of coordinate jurisdiction but do not exercise the same jurisdiction except in certain matters. In essence, whereas the jurisdiction of the Federal High Court can be found in section 251 of the Constitution, that of the High Court of the States can be found in section 272 of the Constitution.  The cost of filing an action in both courts differs. The amount claimed by a litigant determines the fee payable by that litigant. However, it is relatively cheaper to pursue a claim at the State High Court than to pursue the same claim at the Federal High Court. Some litigants even abandon their claims when the matter falls within the jurisdiction of the Federal High Court due to attendant cost just like our Maria in the Woman of Gold lost hope and went back to the US when she was informed of the cost of pursuing the claim in Austrian Court. Little wonder the US court recognised that the Austrian Court provided inadequate means for the resolution of the dispute due to the prohibitive cost to file the action.

As a matter of fact, in matters where the Federal High Court and State High Court can exercise jurisdiction, litigants avoid the Federal High Court and opt for the State High Court in a bid to avoid payment of heavy fees. For instance, the Federal and the State High Court in Nigeria can entertain fundamental right matters as it affects a person whose right is being, has been or likely to be infringed on. Since both courts can exercise jurisdiction in matters of fundamental rights, the question now is; can a person approach any of the courts in a bid to enforce his or her fundamental rights? The answer appears to be in the negative. Some judicial authorities are of the view that any fundamental right action sought to be enforced by a person at the Federal High Court must relate to actions of a federal agency. In other words, if the wrong complained of was done by a federal agency or body then the State High Court cannot exercise jurisdiction in such matters and vice versa.  Despite this position of various judicial authorities and at the risk of an action being struck out for want of jurisdiction, fundamental right actions against federal bodies or agencies are still being filed at the State High Court due to the cost attendant with filing the action at the Federal High Court. In the alternative, litigants are known to grudgingly reduce the amount claimed in a bid to pay a lesser sum. A person who ordinarily would have claimed over a million dollar would reduce the claim so as to afford the fee payable.

Interestingly, some litigants after the release of National Human Right Commission Standing Order 2015 now approach the Nigerian National Human Rights Commission to claim trillions of Naira as no filing fees or deposit are made at the Commission. This is opposed to what is obtainable in regular courts where fees are paid.  Although it is doubtful whether such claims will succeed in view of so many factors ranging from the powers and jurisdiction of the Commission, the status of the Commission as an inferior tribunal etc. Clearly, the outrageous claims at the Commission reveal that many persons are relinquishing their rights due to the cost of litigation. This post is not a call for drastic measures or actions to be taken in various jurisdictions to review the admissibility of claims in terms of cost. This is because removal of fees payable by prospective litigants will not only promote the filing of frivolous suits but will encourage litigation which amongst other things is time-consuming, filled with procedural hitches and less friendly.

Although the Woman in Gold celebrates arbitration over the traditional litigation, it must be pointed out that sometimes litigation or the possibility of litigation brings the parties to the arbitration table. In essence, potential defendants usually show nonchalant attitude towards alternative dispute resolution except there is an ongoing litigation or one is threatened. This is evident in the Woman in Gold when the Austrian government approached Maria Altmann for settlement after the US Supreme Court ruled in favour of Maria Altmann that she can maintain the action against Austria in a US court.

The Woman in Gold and the stimulating discussion that followed was indeed golden. Most of the LLM students with their diverse backgrounds shared their views about the legal issues that arose from the film screening. The analysis by the students was awesome and we look forward to similar discussions throughout our LLM programme.

 

*Woman in Gold is a film written by Alexi Kaye Campbell and directed by Simon Curtis. The film was released in 2015. Studio: The Weinstein Company.

Photo credit: Portrait of Adele Bloch-Bauer I (The Woman in Gold) is a 1907 painting by Gustav Klimt available at https://en.wikipedia.org/wiki/Portrait_of_Adele_Bloch-Bauer_I

 

‘Horticulture, Not Money Culture’ Business and the Environment – Towards A Sustainable Future in Indonesia by Hashim Djojohadikusumo

IMG_20160415_115442860_HDRMy entire time at the Southeast Asian Studies Symposium was intellectually enlightening, and I attended a number of talks by fantastic speakers. However, Hashim’s keynote left the deepest impression on me as it spoke about a sustainable future as an actual possibility. It is unlikely to hear any positivity when discussing climate change, as the general consensus seems to be that whatever actions undertaken are too little, too late, and that the damage is irreparable.

Into this narrative comes Hashim, a ray of hope. In his presentation, he stated that it is now possible to embark upon reforestation, protect wildlife, produce sustainable food, pay a living wage, and make a profit. He ‘put his money where his mouth is’, by divesting his interests in oil, gas and polluting industries and then investing in environmentally friendly initiatives. He spoke of supporting ‘horticulture, not money culture’, but also of an exciting new enterprise of reforesting that can turn a significant profit. By making an environmentally sustainable business-model, other businessmen could be persuaded to act not charitably (or only charitably), but in their own self-interest.

IMG_20160415_180005000Hashim reported that it was possible to take destroyed land and restore it to a thriving rainforest ecosystem in a mere twelve years, a fraction of the time previously believed. In the area he worked on in Indonesia, rains returned due to the rainforest increasing moisture levels, wildlife returned, and what had been a barren desert was now a thriving ecosystem. Studies showed that ground-water levels had increased. We now know it can be done, and that it costs a mere $2005 to reforest a hectare with commercially viable trees and plants which turn a healthy profit as well as providing local residents with employment – thereby incentivising them to protect the forest.

What was previously a barren scrub land, inhabited only by weeds and rats was now a bio-diverse environment. It also provides a profitable alternative to palm oil plantations.

The Palm Sugar Tree (although a plant, not a tree) is a huge part of the commercial viability of rainforest reforestation. It provides a sugary juice that can be used to make low glycemic index sugar as well as ethanol. One hectare produces three times as much sugar as a sugar cane plantation, and the Palm Sugar Tree secretes all year. It’s roots burrow 12 metres into the soil – relocating large amounts of carbon dioxide from the atmosphere. It also stores a great deal of water and restores the area’s water resources.

I was intrigued to hear that the Palm Sugar Tree (PST) grows well only in a bio-diverse environment. Therefore, the best economic plan is to grow PST is as part of a mixed tropical rainforest – promoting a biodiversity that will beneficial for all. I like to think of this as mother nature ‘hitting-back’. Ensuring that if we want to make use of this plant’s special properties, it must be as part of something beneficial to the entire ecosystem, rather than cultivating a PST plantation

IMG_20160415_174522322With a predicted five-fold increase in population in Nigeria by 2100, it is a prime candidate for sustainable development – and this kind of reforestation project is ideal. The profitability of the sustainable rainforest is of great benefit to the environment and the economy. Aside from sugar and ethanol, the rainforest can also replace oil use, produce biodegradable plastic, organic fertiliser as well as provide a habitat for endangered species. This organic fertiliser can then be used to enable forestation of vast swathes of the world’s expanding deserts and degraded land without the use of chemical fertilisers!

‘The world must also be reforested – 1.2 billion hectares to be replanted in the next 40 years for the earth to have a sustainable future’.

Self-interest is the best way to get things done. The level of economic return – 25% as opposed to the 19% return on Palm Oil according to McKinsey – will incentivise business people as it will be in their selfish, self-interest to do the right thing.

With natural forests disappearing at an alarming rate – it is estimated that there will be no forest cover in Indonesia in 25 years – and the implications this has for planetary health as a whole.

Hashim passionately believes that there are exciting future investment opportunities that allow businesses to protect the environment and turnover a healthy profit.

It is inspirational to hear of hope, and to hear from a businessman who terminated his involvement in oil and gas polluting industries for moral reasons, and who is trying to rewrite the narrative on profit and environmental protection, showing that the two are not mutually exclusive.

For more on this topic, listen to this speech, given in Paris, on youtube: https://youtu.be/CMv4vMIntSI

Reviewed by Jodie Satterley

IMG_20160415_163222337

SEA Symposium: José Ramos-Horta and Asia’s lessons to learn

Sunset in Oxford

From 13 to 16 April 2016, I attended the Southeast Asian Studies Symposium 2016 at Oxford along with two other LLM students, Nik and Jodie (look out for their blog posts too!). The symposium was a wonderful opportunity to meet academics, government officials, activists and practitioners all specialised in Southeast Asia. I was part of a roundtable titled ‘The Rohingya: A Question of Citizenship and Identity’ which was well-attended by many people who had experience in Myanmar at different times. I also attended some really wonderful workshops, including one on financial inclusion and empowerment of women and girls, where I had the chance to talk to someone from the Cherie Blair Foundation about the need to change financial laws and banking practices in recognition of the specific challenges women face when it comes to accessing finance.

Jose Ramos HortaThe keynote address at the opening plenary this year was given by former Nobel Peace Prize Laureate and former President of Timor-Leste, José Ramos-Horta. He began quite humorously, talking about his time at St Antony’s College in the 1980s, which he chiefly remembered for its very bad food. He claimed that he hardly ever ate the food, as it was ‘the worst’ and often passed his share to other students. This system left him with a standing bill owed to St Antony’s, which he was sent notice of with regularity for ten years, as it incrementally increased. It didn’t matter that he had become a head of state in that time.

Dr Ramos-Horta then talked about how important Asia is as a region: home to over half of the world, it has the largest standing armies and some of the longest border disputes. He made a quick reference to the situation in Kashmir, which he described as the ‘most dangerous place in the world’.

An unexpectedly sunny first daySome countries, he said, had still not recovered from colonial occupation, and it remains a part of their national identity. Dr Ramos-Horta flagged the issue of violence against women and discrimination against women and girls, who endure acid throwing, are married off young or even sold off, and in some places face stoning for adultery. He underlined how essential girls’ right to education is to changing some of this.

Dr Ramos-Horta commented on Timor-Leste’s experiences and how other Southeast Asian nations might learn from them. Observing the corrupting effect of money on Timor-Leste’s 2007 elections, he jokingly said it was not clear whether in 2001 and 2002 whether Timor-Leste was more honest or did just not have enough money to influence elections, humorously terming this the ‘Asian style of democracy’.

Selfie with Jose Ramos HortaLooking back on 40 years, Dr Ramos-Horta said there had been gains, although poverty is on the rise, while ‘democracy, good governance, and transparency are deficient’. He warned that it was vital for Asian governments to be more open and to listen to their people. The extreme violence experienced in some countries is often explained in terms of religion, but in reality this is an extremist ideology pervading in places. He commented that Myanmar is at the beginning of a difficult transition, like Indonesia after Suharto, and gave support to Aung San Suu Kyi, who he said needs time and space. Countering criticisms made about her, Dr Ramos-Horta said she was being judged too soon, and that it is hard to build a modern nation state.

In relation to Myanmar, but also to other Southeast Asian nations that have painful histories, such as Borneo, Indonesia, and Cambodia, Dr Ramos-Horta highlighted the importance of truth and reconciliation. He said that there was a need for an institute of memory, recognition of victims, and above all a process of remembering and reconciling with the past. This, he said, required a pedagogy of non-violence and forgiveness, warning that it is tragic to allow hatred. The challenge is how to present truth and reconciliation to the next generation, teaching non-violence not by omission, and without resurrecting anger. He said that the 21st century is Asia’s century, and it will see great challenges and great possibility.

His approach to history, truth and reconciliation was particularly stimulating to me, as I could place some of his positions with what I had studied in international criminal law, regarding war crimes and the role of trials and truth commissions. It reminded me of the role law can play in establishing history, and Martti Koskenniemi’s suggestion that war crimes trials are ‘less about judging a person than about establishing the truth of events’.[1] With over 300 people present, many from various Southeast Asian nations, Dr Ramos-Horta spoke on many relevant subjects for a large member of the audience, and provoked interesting discussions afterwards.

Sanam Amin

Conference photo

[1] Koskenniemi, Martti. ‘Between Impunity and Show Trials’. Max Planck Yearbook of United Nations Law, 6, 1, 1-32(32) 2002.

KLS Graduate Conference 2016

Dear All,

212Please see attached the programme for the KLS Graduate Conference 2016 on Monday and Tuesday (6th and 7th) in Eliot Lecture Theatre 2

This year’s conference features papers from PGRs and LLM students on topics ranging from climate change and the right to water in India, to transgender people’s rights and Cypriot Depositors in the ECJ. The second day of the conference will feature panels of LLM students presenting their plans for their minor dissertations. The focal point of the conference is the annual Clive Schmitthoff lecture by Professor Neil Brooks (Osgoode Hall) at 6pm on Monday evening on “Rising Income and Wealth  Inequality: What’s Commercial  Law Got To Do With It?”.  Prof Brooks’ lecture will be preceded by a networking drinks reception in the foyer of ELT2.

We would really appreciate any time you can spare to attend one or two panels and support our students. For many of them, this is their first experience of presenting their work, so  positive and constructive feedback from peers and from colleagues is key to their learning and development as scholars.

We hope to see you there!

Sinéad Ring

(On behalf of the KLS Graduate Conference Committee)

WHO NEEDS LAW (click here for programme)

 

Dr Rob Knox’s guest lecture on ‘The Poor’ – International Human Rights Law module.

 

By Claire Walls (LLM Student, International environmental law)

File:William Powell Frith - Poverty and Wealth (1888).jpg

On Tuesday the 22nd of March, LLM students taking International Human Rights module had the pleasure of being taught by Dr Robert Knox, who gave a lecture and attending the seminars concerning ‘The Poor’. Dr Robert Knox is currently a lecturer in Law at the University of Liverpool. His research interests lie in critical and Marxist legal theory, focusing on imperialism and its relationship with International law.

The LLM students were given a draft of Dr Knox’s essay titled ‘Marxist Theories of International Law’ to read in preparation for the lecture. This essay will appear in The Oxford Handbook of the Theory of International Law, edited by Anne Orford and Florian Hoffmann (forthcoming). During his lecture, Dr Knox discussed the reasons and logics underpinning global poverty and argued that rather than being accidental, as it is often perceived, poverty is a systematic outcome of the capitalist political economic model underpinning the current international order.

Dr Knox pointed out that traditional human rights accounts often consider poverty as an anomaly which can be remedied through charity or legislative intervention, despite it being omnipresent. He suggested that poverty can be considered instead as an intractable problem created by capitalism. Following Marxist theory, Dr Knox underlined the ‘inevitability’ of poverty in a society organised around profit and growth.

Capitalism was born in Europe, following the Industrial revolution. This led to the rise to the idea of property, separating those who owned and those who did not. The latter, who had previously relied on common goods were forced to become labourers. According to Marxist thought, this precise economic and social structure born from capitalist relationships can be seen as the origin of a particular type of legal relations that, in themselves, aimed at profit and growth maximization. Law functions, in this sense, as a means of crystallising inequalities and disproportionately affecting ‘the poor’ as illustrated by the following quote by Anatole France:

In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.

In his lecture, Dr Knox suggested that there are three usual avenues to conceptualized the relationship between poverty and human rights. The first suggests that human rights, and formal legal and institutional structures, are not directly implicated in the production of poverty and therefore they do not have a ‘direct role’ to play in addressing it. The second considers human rights to be a tool to ameliorate poverty, which it is considered as coming from external factors. The third position posits that poverty is a violation of Human Rights, particularly because poverty is produced by State driven decisions or inaction. Dr Knox explained the latter by pointing out how capitalism and globalisation had led to a weakening of the State’s ability to interfere in economic and social matters. This is problematic to human rights lawyers who aim to use the State as a tool to re-distribute resources and to reduce asymmetries of power amongst nationals. For Dr Knox, however, this latter position, although extremely important, it continues to neglect the deeper connection that exist between the production of poverty and the idea of law, that underpins human rights. An evidence of this is the continuous inability of human rights to fundamentally challenge the global structures that, on a daily basis, generate even higher levels of maldistribution of resources.

During the seminars the discussion focused on imperialism and globalisation and their link to poverty and international law. Marxist legal theory considers (liberal) law to be the outcome of a particular arrangement of social relations predicated on exclusion and exploitation and which started in Europe and later expanded across the world through the process of imperial expansion. International law can be seen, from this perspective, as the outcome of imperialism – an argument advanced by many Marxists scholars including Susan Marks, author of ‘Human Rights and the Bottom Billion’, an article published in the European Human Rights Law Review and which was discussed during the seminars.

The discussions during the seminars, led by Dr Knox and Dr Eslava, the module convenor of the International Human Rights Law course, explore the issues associated to conceiving law as being purely a product of the mind and not a product of particular social, as well as material, arraignments. Missing this forecloses the possibility of understanding how law, in trying to solve a problem, often ends up crystallising and reproducing the same problem, as it has arguably been the case with poverty.

It was pointed out by a student that Human rights is at odds with reducing poverty as it focuses on the end result, failing to concentrate on the reasons for poverty, in particular the economic structures that are at the origin of the organisation of today’s society.

Dr Knox’s talk was part of a series of guest lectures that formed the second of three parts of the International Human Rights Law module. Each guest lecture focused on a specific subject (ie. The Citizen, The Refugee, The Worker, The Woman and The Poor) and its relationship with international human rights law. The guest lectures offered from their own research critical insights into the ways in which the field of international human rights law constitutes and tries to negotiate the claims and needs of these subjects.

 

 

Dr Vidya Kumar’s guest lecture on ‘labour rights as human rights’ – International Human Rights Law module.

By Sanam Amin – Sanam is a Kent Law School LLM Student

On 23 February, Dr Vidya Kumar gave a lecture on labour rights as the second part of a series of guest lectures in the International Human Rights Law module. Dr Kumar’s lecture focused on the current repackaging of labour rights as human rights. The lecture was based on her recent essay ‘Rethinking the Convergence of Human Rights and Labour Rights in International Law: Depoliticisation and Excess’, included in the collection Law in Transition: Human Rights, Development and Transitional Justice, edited by Ruth Buchanan and Peer Zumbansen and published in 2015.

Dr Kumar began by pointing out that what is meant by ‘human rights’ structures the relationship between labour rights and human rights. Human rights in its present form came to replace the old ‘rights of man’, a shift that took place as recently as the 1940s. ‘Human rights’ can mean rights recognised by law, or the rights existing outside of law. There is a pre-legal meaning, or philosophy of human rights which presents them as the rights that humans have by being human. These rights can then be legalised by recognition in national or international law, but pointing to a document shows what has been codified, not what has been legalised, or more precisely, doesn’t reveal their pre-legal conceptualization. For instance, the Universal Declaration of Human Rights lists human rights, but doesn’t define them or offer clear criteria to distinguish them from other types of rights.

There were several points of difference between labour rights and human rights, from their historical origins to their conceptual dissonance. Human rights discourse frames the state as the potential enemy or antagonist of individuals, and as a result, is concerned mostly with public law. Labour rights looks at specific actors with a particular purpose: the state is viewed as less of an enemy to workers than private power or capital. Importantly, the fundamental purpose of labour law is the improvement of the hierarchical relationship or subordinate position that workers have to the employers, not to eliminate this hierarchy or emancipate the worker. Labour law’s subject is a broad spectrum of workers linked by their past, present, and future labouring, and the law is designed to support workers in an unequal bargaining structure. Since the state is not necessarily the primary employer, and employment contracts are governed by common law or contract law, much of labour rights’ matter is found in private law. Human rights’ starting point is that all human beings are equal, while labour rights’ starting point is the unequal relationship between workers and employers. Further dissonance is seen in the language of human rights, which does not acknowledge a right to strike in any of the core human rights treaties.

Although the relation between human rights and labour rights is an area that labour lawyers continue to debate, this discussion seems to be lost when labour rights are converged with human rights and take on the latter’s language. The convergence or merger has implications for class politics. If class is removed, and if everyone has a right to strike, then in theory, the Queen of England too has a right to strike. During the seminars that followed her lecture, Dr Kumar also touched upon the history of the International Labour Organization which, according to historical accounts, was founded as a response to the fear of the spread of revolution at the turn of the 20th century. This and other historical aspects of the labour rights discourse disappear in the merger with human rights, as do the shifts in approaches to labour issues in the past century. For instance, unemployment, and reducing unemployment, is seen as a state obligation under Article 23 of the Universal Declaration of Human Rights, but its interpretation has seen great variation in places and in time.

The lecture and the seminar discussion that followed were rich and thought provoking. Other students and I carried over some arguments from Dr Kumar’s talk in the seminar for the Labour Rights in a Global Economy module. In particular, we appreciated her point about formerly colonised countries being left with infrastructure that is geared towards extracting its resources, thereby often leaving the use of railroads and ports to the same purpose in a newly independent nation. Dr Kumar’s essay and lecture linked postcolonial issues with labour and human rights discourse, which is a perspective that does not often come up in the mainstream academic discourse on labour rights. The guest lecture series has so far enabled us to benefit from provocative and current research in specific areas of human rights law.

 

 

 

 

CeCIL Second Annual Lecture

The Centre for Critical International Law is delighted to announce a series of events featuring Professor Gerry Simpson, LSE, including the annual Cecil Lecture, the Cecil Graduate Workshop and the launch of Local Space, Global Life : The Everyday Operation of International Law and Development by Luis Eslava. 
 
Full details below.
 
Everyone is very warmly invited to all and any event!  Please feel free to pass on to others who may be interested.
 
We look forward to seeing you.
 
With very best wishes,
 
Emily, Luis and Sara (Co-directors Cecil).
  

Centre for Critical International Law (CeCIL)

 

Second Annual Lecture
Thursday 17 March, 6pm
Eliot Lecture Theatre

 

Crimes Against Humanity: One Hundred Years of Retribution

 

Professor Gerry Simpson

Professor of Public International Law, London School of Economics

 

 

Abstract: Outside the National Portrait Gallery in London stands a statue to a British nurse named Edith Cavell. On 12 October 1915, Cavell was executed by the Germans in Brussels and partly as a result, there emerged an almost entirely novel way of thinking about international law and war.

 

Defeated enemies became ‘war criminals’, atrocities became ‘crimes against humanity’ and (a certain sort of) war became ‘aggression’. The first half of the 20th century, then saw the appearance of an idiom and, then, architecture (Nuremberg, Tokyo) of what became known as international criminal law. This field (sometimes referred to also as ‘war crimes law’) began as tentative foothold (Versailles, Leipzig) but has now colonised much of our thinking about war and peace (Rome, The Hague).

 

When it comes to human rights abuses, it is de rigueur to call for war crimes trials for the perpetrators, and justice for the victims. But is it desirable to make “ending impunity” a supervening goal of war-making, peace-making and diplomacy? In this lecture I propose to engage in a critical stocktaking of this century of retributive humanitarianism.

 

Please also join us for a Reception before the Annual Lecture, from 5 pm in Eliot SCR

Free Food and Drinks!
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Cecil Graduate Workshop
Friday 18 March

11am-1pm Eliot Lyons Room & 2pm-5.15pm KS12

 

The Victims of International Law 

 

Professor Simpson’s lecture will be followed by the Annual Cecil Workshop in which members of the Cecil community will present their work in progress on the theme that has run through Cecil activities this year The Victims of International Law. Please see the Workshop Programme attached.

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Book Launch Wednesday 16 March, 6pm
Templeman Library A108 and Library Gallery

 

Professor Gerry Simpson

in conversation with Dr Luis Eslava

 

Professor Simpson’s lecture will be preceded by the launch of Dr Luis Eslava’s book Local Space, Global Life : The Everyday Operation of International Law and Development (CUP, 2015)

 

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Everyone is warmly invited to the CeCIL Lecture, Graduate Workshop, Book Launch and Reception

 

Visit our new website: www.kent.ac.uk/law/cecil

 

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Gerry Simpson

 

Gerry Simpson was appointed to a Chair in Public International Law at LSE January 2016. He previously taught at the University of Melbourne (2007-2015), the Australian National University (1995-1998) and LSE (2000-2007). He is the author of Great Powers and Outlaw States (Cambridge, 2004) and Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity 2007), and co-editor (with Kevin Jon Heller) of Hidden Histories (Oxford, 2014) and (with Raimond Gaita) of Who’s Afraid of International Law? (Monash, forthcoming, 2016).

 

Research Interests

 

Gerry’s current research projects include an ARC-funded project on Cold War International Law (with Matt Craven, SOAS) and Sundhya Pahuja, (Melbourne) and a counter-history of International Criminal Justice. He is currently also writing about the literary life of international law; an exploratory essay –  “The Sentimental Life of International Law” –  was published recently in The London Review of International Law.  A book of the same name will be published in 2017. He is an editor of The London Review of International Law and an occasional essayist and contributor for Arena Magazinein Melbourne (his latest essay is entitled “Syrian Fantasies”) and The Conversation.  He will teach Rethinking International Law, Public International Law and International Criminal Law at the LSE in Lent, 2016.

 

 

Black or Female: Which is worse?

This guest post is by Judith Ngozichinyere Onwubiko. Judith is a student on the LLM, International Law with Medical Law and Ethics stream. Her main academic interest is International Human Rights Law. She hopes to pursue a career in academia.

I was recently asked the question: black or female, which is worse? It was the first time I had to consider whether an aspect of my identity could be better than another. I considered the question through the lenses of international law and made some striking observations.

First, as Susan Marks[1] observes, international law favours victimhood. The international legal system is ordered in such a manner that one has to be identified as a victim in order to make claims in international law. Thus, international law, especially international human rights law, provides us with categories of rights as well as categories of victimhood. By making claim to a right, one is implying that they have been, are being, or are about to be subjected to some kind of victimization. However, the degree of protection available for a rights-based claim is dependent on the nature of the right in question.

This brings us to the second point: that human rights in international law are hierarchical. According to Anna Grear[2], the hierarchy of a right in international human rights law is reflected in the strength of enforceability of that right. Having considered the strength of enforceability of the right to non-discrimination on the ground of race and the right to non-discrimination on the ground of sex, I concluded that the former is of a higher hierarchy in international law. This is based on the following:

  • The prohibition of racial discrimination is a rule of jus cogens, but sex discrimination is not.[3] Jus cogens norms, as defined by Article 53 of the Vienna Convention on the Law of Treaties, are overriding principles of international law accepted by all members of the international community and from which no derogation is permitted. As a rule of jus cogens, the prohibition of racial discrimination will be binding on all states, including states that have not acceded to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination. And states would be obliged to protect the right to non-discrimination of the ground of race in all circumstances, even during states of emergency.
  • It took 14 years after the adoption of the International Convention on the Elimination of All Forms of Racial Discrimination for the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to be adopted.

As a rule of jus cogens, the right to non-discrimination on the ground of race is a higher class of rights with more protection and enforceability than the right to non-discrimination on the ground of sex. For instance, states can determine the extent to which they will protect women’s right under CEDAW but cannot do so in relation to the prohibition of racial discrimination. In fact, one of the criticisms of the CEDAW is that it has been undermined by numerous reservations and declarations by state parties.[4] And states that have not ratified the CEDAW are not bound by its provisions. Whereas, the prohibition of racial discrimination is binding on states irrespective of non-ratification, reservations or declarations. By privileging the prohibition of racial discrimination in this manner, international law seems to suggest that a claim based on racial discrimination is “better” than a claim based on sexual discrimination. And that it is worse to be female than to be black.

This may not be obvious in dual or multiple discrimination cases involving both racial and sexual discrimination. It is more obvious in cases involving either racial or sexual discrimination. For instance, if women in the UK are prohibited from driving merely because of their sex, a black woman who is prosecuted for driving in the UK may not enjoy much protection under international law. This is because the UK can only protect the rights of women under international law to the extent that it has undertaken to do so. And unless the UK undertakes to allow women to drive cars in the UK, international law cannot compel the UK to do so.

However, if it were black people who were prohibited from driving in the UK merely because of their race, the same black woman would enjoy a higher degree of protection under international law. The UK will be prohibited from discriminating against her on the ground of her race, notwithstanding that it may not have specifically undertaken to do so. So, while states can choose not to protect the right to non-discrimination on the ground of sex in certain circumstances, they are obliged under international law to protect the right to non-discrimination on the ground of race in all circumstances. The practical effect of this is that, the hypothetical black woman enjoys more protection under international law as a black person, than as a woman. For her, being a woman is worse than being black, since she is more at risk of discrimination as a woman than as a black person.

This raises two disturbing issues. First, not every claimant would like to be considered a victim. Personally, I would like my rights to be protected under international law; but I would prefer to be able to make claims to those rights without having to think of myself as belonging to some category of “victimhood”. Secondly, it is disappointing to discover that under international law, especially as it relates to discrimination law, it is better to be black than to be female. My sex and my race both constitute my identity and have the same effect on my person. Racial discrimination is just as offensive as sexual discrimination and I would like to be equally protected from both. Hence, the right to non-discrimination on grounds of sex should also have a high degree of protection as the right to non-discrimination on grounds of race. That one identity is “better” than another is contrary to the principle of equality.

 

[1] Susan Marks, ‘Human Rights in Disastrous Times’ in James Crawford and Martti Koskenniemi (eds), Cambridge Companion to International Law (CUP, 2012) 318-319.

[2] Anna Grear, ‘’Framing the Project’ of International Human Rights Law: Reflections on the Dysfunctional ‘Family’ of the Universal Declaration’ in Conor Gearty and Costas Douzinas (eds), Cambridge Companion to Human Rights Law (CUP, 2012) 24.

[3] Malcolm Evans (ed), International Law (2nd ed, 2006) 789.

[4] See for instance, Ivana Radacic, ‘Feminism and Human Rights: The Inclusive Approach in Interpreting International Human Rights Law’ (2008) 14 UCL Juris. Rev. 246, 255.