Archive for human rights

Striving for Menstrual Equity: The Palgrave Handbook of Critical Menstruation Studies

By Susanne Prochazka, staff writer for RightsViews and a graduate student in the Human Rights MA Program.

Ethereal, smoky, crimson-red droplets drift across the screen as the next speaker is introduced during the online launch of the Palgrave Handbook of Critical Menstruation Studies on October 8th.  Jen Lewis’ “Beauty in Blood” art introduces each new speaker, emphasizing the stark red color of menstrual blood and reinforcing the artist’s goal of breaking the stigma surrounding menstruation. 

The Palgrave Handbook of Critical Menstruation Studies is the first of its kind, an open access handbook containing a multidisciplinary collection of works drawn from the field of Critical Menstruation Studies. Content in The Handbook comes from a variety of genres,  from multimedia art to public health, proving that menstruation is both a rich and varied field of study, as well as a vital component of health and human rights studies. Following opening comments from the editors, including Inga T. Winkler, lecturer for ISHR and Director of Undergraduate Studies for Columbia’s Human Rights Program, several contributing authors spoke on their areas of study and the importance of menstruation studies.

Julitta Onabanjo with the United Nations Population Fund (UNPF) spoke on the need to change the narrative surrounding menstruation in order to improve reproductive rights as a whole. By focusing on addressing menstrual stigma for the disempowered, UNPF works towards a world where menstrual health is fully accepted and integrated into the field of reproductive health. Onabanjo spoke about focusing on the marginalized in society, ensuring access to hygiene for menstruating individuals displaced by conflict, the differently-abled, and the incarcerated. 

Neville Okwaro, with Kenya’s Water Supply & Sanitation Collaborative Council, discussed the need to frame the advancement of menstrual health as a complex, non-linear, and time-consuming process, where there is a need to provide credible research and evidence of consistent practice in order to initiate policy changes. Okwaro praised the Handbook as representing a vital source of such research and practice, greatly increasing access to the necessary information and legal arguments surrounding menstruation and hygiene.

As an artist and self-styled “menstrual designer,” Jen Lewis uses art to break the stigma surrounding menstruation by making the invisible, visible. Lewis initially drew inspiration from her transition to using a menstrual cup, which allowed her to view menstrual blood in a different format and understand that the menstrual cycle touches the lives of everyone. Lewis uses art to expand the conversation surrounding menstruation, with the goal of portraying menstruation as a human right deserving of public dialogue, not simply the “shame and silence” of the stigma passed down from generation to generation. 

Jen Lewis, “Making Bubbles” // shared with permission from artist.

Thematically, the Handbook launch emphasized that the time to end misinformation surrounding menstruation is now. Achieving menstrual equity is a vital step in toppling the disparate power structures inherent in the patriarchy, with the need to engage dialogue around the agency and empowerment of those who menstruate constituting an essential component.  Thus, the Handbook represents an important source of information for those wishing to empower themselves and others in striving for menstrual equity. 

Watch a recording of the full event here.

Suffering , Grievability and Covid-19 – An Indian Nightmare

By Guest Contributor Yash Karunakaran. Yash is an alumnus of the University of Illinois at Urbana Champaign College of Law and the National Academy of Legal Studies and Research (NALSAR). He is currently an advocate practicing before the Supreme Court of India and the Delhi High Court. He is also involved with a civil society organization that helped arrange for travel, food and medicine for migrant workers stuck as a result of the Covid-19 lockdown in India. This organization has filed Petitions before various Courts challenging state restrictions placed on the return of migrant workers.

The primary weapon used to counter epidemic outbreaks within the Indian subcontinent has, for the past 123 years, remained the 1897 Epidemics Act. The legislation grants special powers to State Governments, allowing them to make their own regulations to counter the spread of disease. This piece analyses the colonial history of the Indian response to epidemics, highlighting how it colours the manner in which the Indian State operates to this very day.

The colonial era response to disease, i.e., of executive highhandedness and a lack of concern for the poor, has seemingly been replicated by various parties in power both pre, and post- independence. Even today, the Indian state chooses to use excessive coercive force as a manner by which it can create or regulate a certain form of social behaviour. When we look back at the British era response to Cholera, we see how the Cholera-induced deaths of white soldiers and generals during the siege of 1857 led to the growing suspicion that it was spread by the local camp followers – all of whom were all indigenous civilians. These individuals mostly hailed from the lowest echelons of Indian society and were hierarchically ranked the lowest within the military. These individuals were treated as a different class of citizens, who barely deserved any care or attention.  No efforts were made to introduce medical care or hospitalization for the indigenous population. 

The closest the East India Company came to intervening in civil life was an attempt to study the link between Hindu pilgrimages and the spread of the disease, thereby resulting in the Company regulating the sanitation of such sites. European observers of the 1817-1821 outbreak noted one aspect of the disease that would be of particular significance for the subsequent history of disease in the subcontinent – its predilection for the poor and the undernourished.

This act of valuing a certain class of lives while barely caring for the other has not left us; it is alive in the approach taken by the Indian Government towards wage labourers and migrant workers during this period of lockdown. Judith Butler, in her writing on Precarious Life, spoke of how specific lives are never apprehended as injured or lost, if they were not apprehended as having been lived in the first instance. For a life to be ‘injurable’, i.e., that it could be neglected or destroyed, we accept the fact that such life is not only finite (that it shall certainly end in death) but that it is also precarious. This precariousness implies that life requires various social and economic conditions that need to be met. Thus, living in a society, the value of one’s life is always in the hands of others. The value of life is drawn from the fact that in the absence of care, it may be lost. Thus, grievability exists for a life that matters. In the absence of this ‘grievability’, there is something that isn’t a life, or rather, there is no life. In such a ‘no life’, it would be a life that has never been lived, therefore there exists no regard nor testimony, and such life is ungrieved when lost.

During the Cholera epidemic, there existed no respect or value attributed to the lives of the indigenous. No steps were taken to set up a civil medical association nor were basic healthcare systems made available to them. Applying Butler’s approach here, the only grievable life was that of the British or at most the lives of those indigenous who served as foot soldiers for the Company. This approach was continued by the British India Government in the subsequent Bombay Plague Outbreak, where they claimed  in the absence of a vaccine against the disease, there was nothing that they could do to help the indigenous. However, this was only half true; even though there was no vaccine, steps could have easily been taken to avoid the rapid spread of the disease within indigenous settlements. Basic steps (proper identification of the source of disease, effective quarantine) were already being practiced in civil lines and in British Settlements, but no move was made to try and set up these systems in rural areas (or rather, areas without British residents). It was only when concerns were raised that the industrial workforce was dwindling due to indigenous labourers falling ill, that the British Indian Government was forced to act. The Epidemic Diseases Act, drafted during the time of this plague, became an instrument of colonial domination and control.

The Act was often used to prevent the gathering of protestors in large numbers, prohibiting railway bookings, locking down areas where protests were simmering, imprisoning freedom fighters, and so on and so forth. The response to this legislation was of course, one of distrust and riot – the 1900 Plague Riot of Kanpur being one such example. Again, most individuals targeted under the law were those hailing from the economically or socially weaker sections of society. Rarely were any of the urban elites subjected to such treatment (with the exception of a few freedom fighters). Further, the planning of major Indian cities was done in a manner so as to safeguard the urban elite from disease

While India is no longer a suzerain subject, this cultural context of domination behind the Act still plays a part in how it is currently being used to implement the Covid-19 lockdown. The justification given for this sudden lockdown is that if it were to be forewarned, workers would carry the disease back to their districts of origin, thereby escalating the crisis at hand. However, one may then ask – what about those citizens stranded in foreign locations that were flown back to India? Further, when the extended lockdown was announced, the underlying assumption was that citizens could ‘just stay home’ and be ‘heroes’. How would this logic apply to workers who are now stranded on city streets, evicted from their places of work but now also unable to head home?

 The implementation of the lockdown without these considerations shows not a lack of planning, but rather a calculated cost the state is ready to pay. The lives of lakhs of migrants have been weighed against the danger Covid-19 poses to the urban elite. 

These lives are of no concern to the Government, they are what Butler calls the ‘ungrieved’, those who have a life not lived, and where there is no concern or grief when such life is lost. That is why it is so easy for the state to impose such a costly lockdown, because such lives do not often make the news the same way in which widespread deaths of middle or upper classes persons in an urban setting would (i.e., lives that are traditionally considered ‘grievable’).

There exists a need to counter the apathy we have towards the plight of those less fortunate than ourselves. This requires that we be empathic towards daily wagers and migrant workers, on the backs of whom our roads have been paved and our cities have been built. It is natural to understand the desire to return home in times of crisis, and to be surrounded by those we know, and it is incorrect to paint this desire as an attempt by the ill-informed to spread disease. 

The response to epidemics in the Indian context have always been at the cost of the socially and economically backward. There is a need to break away from this chain and value the lives of all citizens equally. Unfortunately, with the current state of things, and the manner in which states are treating migrants, this goal remains a distant dream.

Complicating Ruth Bader Ginsburg’s Legacy Through the Lens of White Feminism, Race, and Indigenous Rights

By Rowena Kosher, Co-Editor of RightsViews and student at Columbia’s School of General Studies majoring in Human Rights with a Concentration in Gender & Sexuality Studies.

On September 18, Justice Ruth Bader Ginsburg died at 87, after serving on the Supreme Court of the United States (SCOTUS) for 27 years. Ginsburg, popularly known as RBG, and in her most recent fame “The Notorious RBG,” is a feminist icon. This is for good reason—she accomplished a number of “firsts” in her lifetime and her work contributed to groundbreaking progressive legal changes, particularly regarding gender. 

Flowers on the steps of the Supreme Court following Ginsburg’s death. // Creative Commons

Ginsburg graduated top of her Columbia class and became the first woman to be appointed as full professor at Columbia Law. As Director of the ACLU’s Women’s Rights Project, she litigated over 300 sex discrimination cases before working on the D.C Court of Appeals for 13 years. Ginsburg joined SCOTUS in 1993, where she served until her death. During this time, Ginsburg rose to mainstream fame, becoming well known for her blistering dissents and constant advocacy as one of the vital liberal justices on an increasingly conservative court.

Following Ginsburg’s death, the media blew up with condolences, concerns about political implications, and articles commending Ginsburg on the successes of her career. Yet in this barrage of (justifiable) abounding praise, I couldn’t help but think about what happens when a person, a human, becomes an icon so coopted by a movement that her humanity becomes erased. In truth, Ginsburg was a person, and people are not perfect. What do we lose in this black and white thinking about legacy?

A caveat: in this article, I will offer a critical overview of Ginsburg’s legacy. In doing so, I do not intend to discredit or ignore the vastly important implications of the decisions that she made over the course of her career, particularly for women. Rather, I hope that this article presents the opportunity to, amongst our mourning and praise, also think deeply about who benefits from RBG’s legacy, and more importantly who falls to the wayside: namely poor, queer, Black and Indigenous People.

 

Ginsburg’s Feminism was for White Women

In 2013, a NYC student started a Tumblr account entitled “The Notorious RBG,” beginning the memeification of Justice Ginsburg as a white feminist icon. // Creative Commons

Ginsburg was director of the Women’s Rights Project during the height of second wave feminism, a time characterized by calls for women’s equality to men. Also known as “sameness feminism”, this camp challenges anything that could be perceived as treating women as the “lesser sex.” Ginsburg based her entire legal career on reasoning that adhered to this model. Her cases on sex discrimination followed a formula: anything that appeared to be treating a member of one sex differently from a member of the other sex was either sex discrimination, or in the case of her 1 in 4 male plaintiffs, reverse sex discrimination. 

Although on face value, this version of feminism intuitively makes sense, its historical context and practical application mean that in practice, it only really benefits one group: white women. Of which, of course, Ginsburg herself was a member.

As Muqing Zhang points out in a 2019 article in The Establishment, equality to men is an easy point of view for an upper-middle class white woman to have because sexism is often the only form of discrimination that white women face. Yet, maintaining a sameness-based sex equality argument obscures, and even worsens, the experiences of, for instance, poor, Black, queer women, whose marginalizations are plural. In fact, it was the very prominence of the consistent exclusions resulting from a sameness feminist model that led to the development of Critical Race Theory.

Ginsburg’s appeal to white feminism is clear and with this in mind, Ginsburg’s popularized successes in court take on a different tone. Zhang argues that Ginsburg’s formulaic equality framework resulted in the consistent and lasting elimination of any preferential policies towards women—results that were successes for only white women. Cases such as Weinberger v Wiesenfeld (1975) and Califano v Goldfarb (1977), ended policies on federal aid that benefited women specifically. Although aligned with a white feminist model of success, eliminating preferential policies leaves the poor, queer, non-white women who rely on these programs stranded. The results of these decisions are not racist in intent, but they do say something about the challenges of her positionality as a wealthy white woman. Zhang writes, “Although it may not have been Ginsburg’s explicit intent to harm the most marginalized of women, part of the insidiousness of white feminism is that it convinces its believers that the white woman’s experience is the universal experience for all women…in the end, it is not the intent, but the devastating impact that matters.”

On Race:

Ginsburg was not entirely oblivious about the challenges that she did not herself face. At her swearing-in ceremony in 1993, Ginsburg said: “A system of justice will be the richer for diversity of background and experience.” In 1994, Jerome McCristal Culp Jr. wrote and published “An Open Letter From One Black Scholar to Justice Ruth Bader Ginsburg” in which he reminded Ginsburg that diversity on the court does not automatically ensure that diverse voices are heard before the court. Further, understanding one form of oppression (gender) does not mean that one can or will understand another (race), or their intersections. “Privilege does not mean that the holder cannot hear the voices of the oppressed,” writes Culp Jr., “but it does suggest that one possessing such privilege ought to take care to examine where she is in relation to others and where she and others are going.” As with Crenshaw, Culp Jr. cites the challenges of applying an equality model to racial settings. The Equal Protection Clause of the 14th Amendment is a model that at best maintains the status quo, and at worst reinforces existing racialized inequalities.

When Ginsburg engaged with issues of race directly, it came across with mixed messages. One such example is her hiring record. At her confirmation hearing, Senator Hatch questioned Ginsburg about the fact that over her 13 years at the DC District Court, out of 57 employees, not a single one was Black. Ginsburg replied by saying, “I am going to try harder, and if you confirm me for this job, my attractiveness to Black candidates is going to improve.” Yet, over her 27 years on SCOTUS, she only hired one Black law clerk. Granted, law clerks for SCOTUS justices are notoriously white across the board—85% since 2005. However, a systemic problem is not an excuse for a lack of revision of hiring practices, and it is still disappointing to read of Ginsburg’s poor record.

Ginsburg made headlines again in 2016 for her insensitive response to Colin Kaepernick kneeling for the National Anthem as a protest to police violence and in support of Black Lives Matter. In the original interview, Ginsburg calls the protest “dumb and disrespectful” and compares it to flag burning. Ginsburg quickly apologized after massive media blowback. Although it appears that Ginsburg was taking issue more with the action of political speech that Kaepernick chose to take than with the cause he was protesting for, it’s frankly surprising that she was “unaware” of the nature of these protests and further, demonstrates a tendency in the legal world to interpret political actions along a hierarchy of value. Progressive values are structured to favor some political spaces (like campaigns) over others (like sports). And the very spaces that are favored are the spaces that are already structurally exclusionary to BIPOC.  Where is the space for voices against racism when the easily accessible platforms to denounce it are valued less than the institutions that gatekeep? 

In her world in the courtroom, Ginsburg didn’t stand out on cases related to race but generally sided with the other liberal justices in condemning white supremacy & racial discrimination. After all, the civil rights framework that challenges racism is the same as her well-worn equality framework for gender discrimination. For example, as an attorney, Ginsburg credited the work of Black queer civil rights attorney Pauli Murray in Reed v Reed. She authored an amicus brief for Coker v Georgia writing, “the death penalty for rape is an outgrowth of both male patriarchal views of women…and gross racial injustice created in part out of that patriarchal foundation.” Ginsburg also clearly addressed the intersections of voter suppression and race in her famous dissent, Shelby County v Holder.

She ruled in favor of several important cases regarding the rights of the incarcerated, although it is not clear that these decisions were based on her awareness of mass incarceration as an issue with disproportionate effect on BIPOC. Yet Ginsburg also supported increased barriers for prisoners seeking rights in federal courts and joined the majority in Overton v Bazzetta, upholding draconian visiting restrictions. Definitely a mixed record.

One interesting case study of Ginsburg’s lack of engagement with race is her Utah v Strieff (2016) dissent. An equal protection 4th amendment case about warrants and unlawful stops, Justice Sonya Sotomayor wrote a harsh dissent critiquing the ruling, which included what is now colloquially referred to as Sotomayor’s “Black Lives Matter Manifesto.” In this condemnation that also cited Black scholars and activists Michelle Alexander and Ta-Nehisi Coates, Sotomayor wrote “[the decision] implies that you are not a citizen of democracy but the subject of a carceral state, just waiting to be catalogued.” Ginsburg signed onto all of Sotomayor’s dissent except this section. Ginsburg ruled on the liberal side, and yet stopped herself at Sotomayor’s explicit discussion of race. Why did she pass up an opportunity to use her platform as a prominent white woman in power to express solidarity with BIPOC?

Indigenous Rights: RBG’s Biggest Regret

Ginsburg accepting her nomination to the Supreme Court in 1993. She was nominated by President Bill Clinton. // Creative Commons

When it comes to Indigenous Rights, Ginsburg likewise does not have a strong record of support. The legal field itself contributes to this. US law is based primarily on individual rights, a reflection of Western neoliberalism. This comes in conflict when dealing with Indigenous Peoples, whose rights are collective. Further, education about Indian Law is poor across law schools; only a few states include it on their Bar examinations. As a whole, the American legal system is rooted in the history of systemic genocide, exclusion, and erasure of American Indians. Given this, it is upsetting but not surprising that in her confirmation hearing, Ginsburg stated that “I cannot pretend to any special knowledge in this area of the law.” The Marshall Project does note that Ginsburg’s decisions on cases regarding Indian Law improved over the course of her time on the court. For example, her very last Indian Law case, McGirt v Oklahoma (2020), importantly ruled that a majority of Eastern Oklahoma is Indian Country—a landmark recognition of tribal sovereignty. However, backtracking to some of her earlier decisions, we see a number of cases where Ginsburg restricted Indian rights, such as US v Navajo Nation (2002) and Strate v A-1 Contractors (1997). Perhaps the most notorious, however, is City of Sherrill v Oneida Indian Nation of New York.

Ginsburg authored the 8-1 2005 Sherrill decision, ruling against the Oneida Indian Nation regarding their claim to tax-exempt status on traditional Oneida land which NY had acquired as the result of an illegal transaction in the 19th century, and then was repurchased by the Oneida Nation in 1997-98. Ginsburg’s reasoning rested on longstanding racist legal doctrines such as the “Doctrine of Discovery.” Ginsburg argued that the “longstanding Non-Indian character” of the land and the Oneida’s delay in seeking relief kept the tribe from “rekindling the embers of sovereignty that long ago grew cold.” This decision was heavily and rightfully critiqued.

It is clear that Ginsburg took these critiques to heart. In May of 2020 she confided in some of her clerks and peers that Sherrill was the single decision in her time at the court that she regretted the most. She paired this with a declaration of hope that the next SCOTUS nominee be a Native American woman.

What does all of this tell us? It tells us that Ginsburg made countless valuable progressive, life changing decisions that benefitted hundreds of thousands of Americans. It tells us she has the capacity for growth and critical thought and the humility to apologize. It also tells us that she made some really bad decisions, too. In other words, she wasn’t perfect. Nobody is. Legacies are complicated, and the legacy of a judge on SCOTUS even more so. 

We experience a general failure to recognize Ginsburg’s complicated history because she has been elevated to icon status in the pervasive white feminist narrative. As Si’iyda Shabazz writes, “painting her as a superhero on a pedestal” by the ever-impervious white feminist umbrella means we forget (or are prevented from realizing) that at the end of the day, RBG made mistakes. Just as her successes deserve to be shouted from the rooftops, the less rosy side of her record ought to be available for critique. We can only become better citizens, better feminists, and better advocates by knowing that mourning and critical analysis are not mutually exclusive, and in fact can strengthen each other and provoke us to turn Ginsburg’s legacy into justice-oriented action.

The Struggle for Equality: When Will European Roma Human Rights Finally be Respected?

By Larissa Peltola, a staff writer for RightsViews and a graduate student in the Human Rights MA Program. 

The Roma, pejoratively referred to as Gypsies, are Europe’s largest and most marginalized and disenfranchised ethnic minority.  There are an estimated 10-12 million Roma in Europe, making up 5 percent of the population. The Roma are most concentrated in Italy, Spain, France, and the UK, according to Amnesty International, but have settled in every country on the continent. Originally migrating to Europe in the 9th century from Northern India and what is now Iran, Turkey, and Armenia, the Roma have faced discrimination, racism, xenophobia, and inhumane treatment in every country they have settled in. They were forced into slavery in most of Europe leading up to the 19th century, were the second-largest group targeted for extermination by the Third Reich (an estimated 25-75% of Europe’s Roma population were decimated in WWII), and were targeted for murder and rape during the conflict in Kosovo. 

Photo copyright: Archiv C891 Ungarische Zigeuner-Familie, Roma, unter deutscher Besatzung, 1940er https://www.flickr.com/photos/65091855@N03/24650497476

Today, the Roma are still described using the most common negative stereotypes: gypsies, thieves, criminals, savage, lazy, intellectually inferior, and other derogatory descriptions. A majority live in slums without access to running water or electricity and are at near-daily risk for violence committed by non-Roma European citizens. In 2019, six French men were arrested in a plot to burn down a Roma camp near Paris due to their belief in the baseless accusation that French Roma had been involved in a kidnapping ring in poor Parisian neighborhoods. Despite this failed attempt, anti-Roma sentiment and violence in France spiked soon after these racist and unfounded allegations circulated on social media. According to the New York Times, over several days Roma men were beaten and threatened according to advocacy groups. In Rome in 2017, three young Roma girls aged 4, 8, and 20 were burned alive when their camper-van was set on fire in an intentional attack on the camp. These are merely a few of countless examples of physical violence against the Roma.

European citizens are not the only ones guilty of inciting violence against the Roma. Government officials from several countries have used their influential platforms to call for violence against the Roma. French National Assembly Member Gilles Bourdouleix remarked in 2013: “Maybe Hitler didn’t kill enough of them.” Hungarian ruling Fidesz party co-founder Zsolt Bayer declared: “A significant part of the Roma are unfit for coexistence. They are not fit to live among people. These animals shouldn’t be allowed to exist. In no way. That needs to be solved — immediately and regardless of the method.”

Repeated violence and discrimination against the Roma continue to have a detrimental effect on their communities throughout Europe. Currently, 90% of Roma are at risk of extreme poverty, are subjected to forced evictions and deportations, face educational segregation, and on average, have lifespans that are ten years shorter than their non-Roma counterparts. Over 77% of Roma and Travellers (a similar nomadic but ethnically distinct group mainly living in Western Europe) in the UK have been victims of racially motivated attacks and hate crimes and in the UK, 70% of Roma experienced discrimination in seeking education, nearly 50% were refused employment due to their ethnicity, and 30% cannot access proper healthcare. Moreover, there are few recent reports on the overall status of the Roma in Europe as a majority of countries choose not to collect or take part in data collection.

This begs the question: why, in practice, have the rights of the Roma been left out of human rights discourses in Europe? This is a question that can only be answered honestly by confronting over a thousand years of racism, negative stereotypes, and xenophobia. Much of the discrimination they face has to do with the perception of their culture. Many Europeans view Roma culture as one that has a collective identity based upon a nomadic lifestyle, a group full of fortune tellers, beggars, thieves, child snatchers, people that are too lazy to work or get an education and instead choose to be a drain on society. Many believe that Roma lifestyles not only contradict, but are also inherently dangerous to the European way of life. These ideas emerged from a series of stereotypes imposed on them shortly after their enslavement in the 13th century. Consider the character of Esmerelda from the Hunchback of Notre Dame, Cher’s popular song Gypsies, Tramps, and Thieves, or the reality show My Big Fat Gypsy Wedding which follows teen “Gypsy” brides. Each of these examples perpetuate the stereotypes of Roma girls as sexually promiscuous, Roma men as predators, and the Roma in general, as criminals. These myths were further perpetuated during the Holocaust and continue to spread throughout Europe today, made worse by social media. The Roma are continually scapegoated and are blamed for social, political, or economic problems facing the state.

Despite a large population, there is no central Roma authority since there is not one single Roma identity but instead a variety of unique cultural and linguistic groups throughout the continent. Moreover, there are few powerful Roma figures and very few politicians or others that can lobby on their behalf. The lack of advocacy on behalf of the Roma also comes from a lack of reliable data on their communities. On average, European countries do not dedicate enough resources for the collection of disaggregated data, which is essential in order to develop programs tailored to the needs of the community. Without this necessary data, financial resources cannot be allocated by the European Union, European Commission, and state governing bodies, thereby trapping the Roma into continued cycles of poverty. 

Incorporating Roma rights into the broader human rights framework necessitates an assessment of the legacy of colonialism in Europe that has gone unacknowledged and unaddressed. International organizations like Open Society Foundation, founded by George Soros, and Former Secretary of State Madeline Albright’s National Democratic Institute, have committed millions of dollars to advancing Roma rights throughout Europe, with varying degrees of success. However, many European politicians have pushed back on allowing for greater Roma participation in the social, cultural, and political field. Some countries have been accused of not distributing funds specifically allocated by international funders and the European Union for the advancement of Roma rights and community projects.  

The Roma have been victims of mass atrocities and genocide throughout history and continue to experience cultural genocide. Each European country where the Roma live has a legal and moral obligation to address the multitude of human rights violations against the Roma. States are responsible for correcting racial injustices by

  • integrating Roma children and adolescents into schools and putting in place mechanisms to prevent educational segregation, 
  • increasing access to the healthcare sector, 
  • developing discrimination and harassment training programs in all levels of society, especially for the police, prosecuting crimes against the Roma as hate crimes, and 
  • sentencing perpetrators of these crimes to the full extent of the law. 

If European countries continue to promote the idea that they are the defenders of human rights and that they fully embrace the articles of the Universal Declaration of Human Rights, then they must do more to protect the most vulnerable and disenfranchised population on their continent.

It is time that Roma citizens be treated with the dignity and respect under the law that is afforded to all other Europeans.

Indigenous Environmental Justice: A Need for Substantial Recognition of Indigenous Voices

 By Guest Contributor Sakshi Aravind, a PhD student at the University of Cambridge. She works on Indigenous environmental justice in Australia, Brazil, and Canada. 

In the last week of May, the mining colossus Rio Tinto blasted the 46,000 years old Juukan Gorge rock shelters in Western Australia (WA) during its operations in Brockman 4 mines. The caves were of profound cultural and spiritual significance to the traditional owners, the Indigenous Puutu Kunti Kurrama (PKK) peoples, while also carrying immense historical and archaeological value. Rio Tinto had obtained ministerial consent from the state Minister for Aboriginal Affairs to carry out the blasts under Section 18 of the obsolete WA Aboriginal Heritage Act, 1972 (‘Heritage Act’). In response, the destruction of these culturally significant sites evoked shock and anger around the world. There were calls for addressing the deficiencies in the law, which does not make provisions for consultation with traditional owners or review of the ministerial consent in light of subsequent discoveries. Following this PR backlash, Rio Tinto attempted to recover with apologies and clarifications, although these went in vain. Rio Tinto’s specious regrets were as wicked as its attempts to attribute the blasts to certain ‘misunderstandings’.

Overhead view of the Rio Tinto mining at the Juukan Gorge rock shelters. // Source: Venture magazine

As I have argued elsewhere, these blasts are not a single event of destruction. They are an ongoing process of festering the wounds of settler colonial capitalism, which have never been allowed to heal. The destruction of Juukan Gorge is irreversible damage and an incommensurable loss to the traditional owners of western Pilbara. Further, they reveal a pattern of systemic erosion of Indigenous rights and identities. Rather than an exception, Rio Tinto is only emblematic of the noxious extractivism that has been foundational to the expansion and sustenance of capitalism and colonialism around the world. 

Elsewhere, First Nations in Canada have suffered repeated setbacks in their fight for rights over land and sovereignty against mining companies. While treaty rights and Constitutional rights have guaranteed a certain degree of Indigenous participation in decision making, categorically, often Indigenous sovereignty must concede to economic benefits. The recent blockade by Wet’ suwet’ en people in British Columbia against the construction of the Coastal GasLink pipeline illuminates the challenges of fighting for traditional territories against the combined forces of the State and private corporations. 

Brazil has also witnessed relentless destruction of forests and Indigenous territories by mining companies under the aegis of the Federal government, with little or no recourse to legal remedies. To put it plainly, the status of Indigenous rights, sovereignty, and environmental justice have been continually eroding in settler nations.  

The ‘duty of consult’, i.e. the obligation to consult and accommodate Indigenous interests in policies and decisions that affect them, has often been conflated with Indigenous environmental justice. It is said to embody aspects of participation and recognition within Indigenous rights framework. Jurisdictions like Canada, with an advanced constitutional recognition of Indigenous rights, have contributed significantly to the jurisprudence around duty to consult. Australia trails far behind in this respect. However, the legal frameworks of settler-colonial nations have only allowed for ‘consultation’ and not unequivocal consent. This approach blatantly fails to address the question of Indigenous self-determination and sovereignty over land and territory, some of which have been better articulated in international rights instruments such as The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). 

The UNDRIP in 2007 was a notable political gesture from the state bodies in coming together and recognising the questions of indigenous differences and vulnerabilities. Despite criticisms for its inadequacy or watered-down provisions, the UN Declaration made substantial provisions for adhering to the ‘distribution-recognition-participation’ paradigm of environmental justice amongst other measures for political empowerment.The UN declaration: recognises obligation towards indigenous rights as an extension of the existing Human Rights obligations (Art 1); protects the First Nations from all forms of discrimination based on identities (Art 2); re-asserts the need for indigenous self-determination (Art 3); protects the communities from forceful dispossession from Indigenous land (Art.8 and Art.10); right to free and prior informed consent in any economic/military activities on indigenous lands (Art. 29, 30, and 32). Hardly any of them have made their way into domestic legislation in either Australia or Canada. 

As a consequence, Indigenous communities may be heard, but only as a matter of procedural necessity. First Nations continue to be denied the power to veto extractivist projects over their land and resources. Such denial has grave implications for the idea of Indigenous environmental justice. Achieving justice in settler colonial contexts demands truth and reconciliation. These values can only be accomplished by providing an apparatus for substantive Indigenous voices and representation in the social, political, and economic process. In Australia, the Uluru Statement from the Heart and the proposal to amend the Australian constitution to enshrine Indigenous voices in the Parliament is a significant step towards reformulating the idea of justice within a settler State.

Courts have attempted to achieve Indigenous environmental justice through means available to them. For instance, I have argued that in Gloucester Resources v Minister for Planning (Gloucester Resources), the New South Wales Land and Environment Court focussed on the testimony of Aboriginal elders, their connection to the land, and cultural heritage. Although Gloucester Resources was primarily articulated as a climate change litigation launched against the commencement of a coal mine, it had vital contributions to Indigenous environmental justice. While specific case laws cannot realise the idea of Indigenous environmental justice, they demonstrate the significance of ‘listening’ to Indigenous communities to achieve it. The blasts in WA have now provoked us to revisit what justice means. And we must revisit it in settler nations, mindful of the fact that they are established on the dispossession, displacement, and erasure of Indigenous peoples. 

Indigenous environmental justice cannot reconcile with extractivism and capitalism, which operate in cahoots with the State and perpetuate the erasure of Indigenous identities. Extractive economies thrive on the severing of Indigenous ties with land and environment. These exploitative idioms of capitalism cannot be remedied with mere ‘duty to consult’, just as the incommensurable loss of Juukan Gorge cannot be restored with trifling apologies or paltry compensations. Australia at this hour needs more than a review of heritage laws. It needs to acknowledge that the nation’s past and present are caught in toxic tangles of settler colonialism and capitalism. The redemption lies in accepting and acting on constitutional reform enshrined in Voice, Treaty, and Truth.

German Populist AfD Party Uses Moria Fires to Reinvigorate Anti-Refugee Sentiment

By: Guest Contributor Ali Cain. Ali is a M.A. Candidate in the European History, Politics and Society Program at Columbia University. Her MA research analyzes how the coronavirus pandemic is impacting the Alternative for Germany Party’s anti-refugee policies and rhetoric. 

The Alternative for Germany Party (AfD) is a far-right populist party that promotes protecting the German identity, traditional family values and climate change denial. Once a fringe party unable to meet the 5% voting threshold to enter the German Parliament, the AfD’s opposition to migration policies and xenophobia has elevated its support. After German Chancellor Angela Merkel opened Germany’s borders to one million refugees in 2015, the AfD both seized upon and helped instill fears over cultural differences, crime and violence. The Party’s fearmongering tactics were so successful that it became the third largest party in the German Parliament in the 2017 federal election. 

The AfD continues to be relentless with its attacks upon refugees as exhibited in its response to the recent fires in the Moria refugee camp on the Greek island of Lesvos. Capitalizing on lingering societal anxiety from the 2015 migration crisis, the AfD criticized the German government for agreeing to take in 1,500 of the 13,000 refugees stranded at Moria. Although it’s unclear whether the fires were set intentionally, the Party argues that refugees started the fires to get to Germany. Currently, AfD’s approval ratings are at their lowest point since the 2017 election as more Germans rebuke populist politicians, especially as there’s increasing support for the Merkel government’s response to the coronavirus pandemic. It’s unclear how the AfD’s theories about the Moria fires will impact its support as a recent poll found that the majority of Germans are open to accepting refugees from Moria as long as other European countries do so as well. It’s almost certain, however, that the AfD’s exploitation of the Moria fires will continue to harden xenophobic attitudes and heighten the demonization of refugees.

Moria refugee camp. // creative commons

The AfD’s deprecation of refugees as a central party component is most evident in its transition from an anti-European Union (EU) party to Germany’s leading voice on nativism. Upon its establishment in 2013, the Party opposed  the Eurozone and resisted bailing out neighboring countries during the 2008 economic crisis. Most of its founders and supporters were disaffected members of Merkel’s Christian Democratic Union Party (CDU) who were fiscally conservative and against using German tax-payer funds to help struggling countries like Greece. As refugees increasingly arrived at European shores in 2015, opposition to the Eurozone developed into vehement resistance to the EU and open borders. The AfD’s voter demographics and party leadership shifted to reflect extremely conservative values, including the belief that the German identity was threatened by newcomers. The Party seized on isolated incidents of violence, including migrant attacks on women in Cologne on New Year’s Eve 2015 and a 2016 terrorist attack by a failed asylum seeker in Berlin, to projecta picture of all refugees as criminals and terrorists. 

By leading the charge against Merkel’s migration policies, the AfD has obtained its highest levels of success yet.  It’s not only the third largest party in the Bundestag but the main opposition party as well. Although the mainstream parties were successful in blocking out the AfD from joining the ruling government coalition, its status grants the Party a bigger public platform and more financial resources. The AfD is additionally represented in all 16 state governments and the European Parliament’s Identity and Democracy Group. Although the AfD’s success is alarming, 2017 may have been the Party’s peak. A recently published study by the Bertelsmann Foundation revealed that only 20% of Germans voters support populism. Although it was concluded that populist support began waning in 2019, the government’s COVID-19 response has recently increased Merkel’s appeal. Her current approval rating is over 70%, compared to 56% in 2019. It was also found, however, that AfD supporters have become more right-wing, signaling that those who remain supporters fully embrace the AfD’s xenophobic, nationalist beliefs. 

The AfD’s Facebook page reflects its deepening shift to the far-right. Its COVID-19 response mimics that of Donald Trump in denying how serious the pandemic is and arguing that mandated mask requirements violate German’s constitutional freedoms. The Party constantly criticizes Merkel, “the Left,” and climate change activists. The AfD also helped encourage anti-coronavirus lockdown protests in Berlin that included the storming of Germany’s Parliament building in late August. The Party’s anti-refugee rhetoric continues to dominate its social media in an attempt to salvage its support among centrist voters. In 2020, the AfD has posted more social media content on migration than on COVID-19. Its Facebook posts on the Moria fires and the government’s response, including claims that Merkel is the “mama of Africans” and is encouraging refugees to start future camp fires, demonstrate that the scapegoating and demonization of refugees remains the Party’s main initiative. Given its decreasing public support, the AfD will continue to exploit the situation for its own political gain just as it has done since 2015.

The Moria fires and the AfD’s response reveals how lack of European unity on migration policies hurts refugees and bolsters populist parties. Advocates have criticized the horrific conditions of the Moria camp for years with no action from the Greek government and the EU. Greece’s pleas for more EU assistance have been consistently put off, increasing strain on the country’s already fragile welfare and economic systems. As a result, the Greeks have become more belligerent in rejecting asylum seekers as demonstrated in reports that authorities forced 1,000 asylum seekers onto inflatable boats and abandoned them in the Mediterranean this past summer.  In the aftermath of the Moria fire, the Greek government blames refugees for arson. 13,000 remain homeless and although Greece said it will build a new reception center, it will take months to do so. Along with Germany, nine other EU countries announced that they will take in 400 refugee children from the fires. This is not enough and will never be enough. 

The European Commission’s release of its Migration Pact on September 23 destroys any lingering hope that there will be a unified European response to migration and emboldens far-right parties like the AfD. Instead of developing mechanisms to enforce mandatory resettlement quotas for all 27 EU member states, the Pact gives states the option to accept refugees or help pay for their deportation to countries of origin or transit. Merkel’s government will face a precarious decision as the AfD may call for Germany to increase its financial contributions for deportations. Additionally, the Pact expands the Dublin Regulation, which mandates that refugees must register for asylum in the country they arrive in. If an asylum seeker has family in an EU member state, they could be relocated there. Given that Germany continues to accept thousands of refugees, it will be responsible for reuniting families if the Pact is approved. The AfD has jumped on the Pact by relying on its traditional culture war narrative that paints refugees as incompatible with the German identity; AfD Federal Spokesman Joerg Meuthen wrote on Facebook, “the new EU Migration Pact is a fight against our entire western way of life, welfare state, freedom, and Christian culture.” The AfD, along with other European far-right parties, started a petition against the Pact and are arguing that the EU is trying to replace the “people of Europe” with refugees and migrants.  

COVID-19 has so far helped decrease support for populist parties in Europe. However, migration issues, such as the Moria fires, may revitalize the AfD’s appeal at home. The 2021 federal elections and Merekl’s planned departure grant the AfD an opportunity to increase its power in the Bundestag and participate in a coalition government. The Party’s nativism will only increase and put more refugees and migrants at risk.

Stranded in Near Statelessness: The Coronavirus and Nepali Migrant Workers

By Kelly Dudine, staff writer for RightsViews 

Men, women and children spend days in an open field, hungry, thirsty, exhausted, and abandoned. Unable to stay in India due to job loss following the Coronavirus pandemic, and prevented from traveling back to their homes in Nepal amid fears of spreading the virus, these Nepali migrant workers and their families are stranded at the Nepal-India border in a form of temporary statelessness.

“How many days can children go without food or water? How many days? This is a human rights violation,” says Maggie Doyne, Co-Founder of the BlinkNow Foundation.

The non-profit is among many local and international organizations responding to the growing humanitarian crisis in Nepal, including the Nepalgunj Medical College, ODA Foundation, Mottey Gang, Nepal Red Cross, and NYEF – Kathmandu Chapter, among others. 

Stepping in where the State is failing to meet the needs of its people, relief efforts are establishing food distribution banks and providing essential care services to thousands of returning migrant workers. Beyond the borders, hundreds of thousands more are stranded overseas in equally grave circumstances, anxiously waiting to be allowed to return home.

Nepal is struggling to respond to the pandemic in a way that meets human rights standards, and there are doubts on whether its economy and healthcare systems can absorb the influx of citizens returning home from foreign countries. Both immediately and in the long run, Nepali migrant workers and the families who rely on their remittances for survival face increased risks of joblessness, homelessness, and extreme poverty.  

While the current situation in Nepal is dire, the coronavirus only exacerbates the abuses already experienced by this community. Migrant workers around the globe consistently experience extreme exploitation and abuse. The coronavirus further exposes the harsh realities of the migrant worker economy, and emphasizes that both home and host countries are not doing enough to protect the hundreds of thousands of men, women, and youth who make up the migrant workforce. 

Global Context: The Plight of Migrant Workers

The global migrant worker economy is massive: in 2017, there were around 164 million migrant workers globally, almost half of whom were women, and in 2018, global remittances reached a record-high of $689 billion. Yet, even before the Coronavirus pandemic, it was rife with challenges and human rights abuses. 

Many countries, particularly in Southeast Asia, support and promote the export of labor as an economic strategy to drive development. Despite this, the very existence of the migrant worker economy is fraught with contradiction. On one hand, migrant workers are prized because their home countries greatly benefit from remittances and in turn host countries receive cheap, under regulated labor. On the other hand, migrant workers are often disrespected and devalued in both host and home countries. 

Globally, migrant workers experience discrimination, low or unpaid wages, poor work and living conditions, insufficient social protections, and precarious legal statuses. In the Gulf States, for example, the kafala system limits the rights of migrant workers by tying worker visas and legal statuses to their employers. It is not uncommon for migrant workers to have to give up their passports, experience restrictions on their freedom of movement, and face imprisonment for leaving a job without the employer’s permission. Migrant workers are also often victims to fraudulent and deceptive recruitment practices, leaving them in exploitive work environments and trapped in overwhelming financial debt.

In response to the needs of this vulnerable labor force, various international labor and human rights mechanisms have sought to establish a foundation of legal protections for migrant workers, including the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Labor Organization (ILO) Migration for Employment Convention and Migrant Workers (Supplementary Provisions) Convention. However, these treaties often have low levels of ratification, which makes them harder to enforce and implement. The UN Convention, for example, has only been ratified by 20 states. Nepal has not ratified any of these international treaties.

Female migrant workers are especially vulnerable. Economic discrimination and oppressive patriarchal norms are key motivators for migration, and many women resort to illegal migration to circumvent social barriers, which leaves them outside the realm of state protections. Women often take on low-skilled jobs, work in the garment sector, or provide domestic care work, which is a largely unprotected sector of employment. According to the ILO, migrant domestic care workers around the world often have no access to social or legal protections, and many are vulnerable to extreme labor exploitation and gender-based violence in their host countries. In 2013, the ILO Convention on Domestic Workers entered into force, aiming to increase protection of domestic workers, including their right to receive fair wages, limited working hours and adequate rest, and the choice of where to live. This convention, however, also has a low level of ratification, with only 29 State Parties. Nepal has not joined the Convention. 

Additionally, states that benefit from remittance-driven economies promote policies and protections to help to increase the export of labor by making it more attractive to potential migrant workers. However, in practice, the enforcement of such policies is lacking, which leaves citizens abroad vulnerable to abuse.

Simply put, a market like the migrant worker economy, which functions on the backs of thousands of exploited and neglected people, will never be resilient to shocks or crises like the Coronavirus, nor will it thrive in the long run. 

Nepal’s Migrant Workers

Migrant workers provide an economic lifeline for the Nepali economy. Many young people travel abroad to find employment, earn an income, and provide for their families back home through remittances. According to a recent report by the Nepal Ministry of Labour and Employment (NMLE), remittance inflows reached 26.9% of Nepal’s national GDP in 2017, making the country the fourth highest remittance recipient in the world. More than 3.5 million migrant labor permits have been issued to Nepali nationals over the last nine years, with migration concentrated in Malaysia and the Gulf States. India is another leading receiver of Nepali migration; however, due to open borders, there are limited records of migration flows and little information on how many Nepali citizens live and work in the country. 

The NMLE report also indicates that many Nepali migrant workers have negative experiences abroad. Between 2013-2016, 12,090 complaints were filed with the Department of Foreign Employment (DOFE), which included requests for repatriation, assistance in repossessing passports, and rescue from the destination country. 

The International Organization on Migration states that young Nepali women are increasingly traveling abroad to seek job opportunities. India is thought to be the leading receiver of women migrant workers, followed by the United Arab Emirates and Malaysia. In the latter countries, Nepali women typically take on cleaning labor or domestic care work.

In the Gulf States in particular, abuse of women migrant workers is reported to be rampant, leading the government of Nepal to enact various bans over the years on women migrant workers traveling to those areas. Most recently, in 2016, Nepal implemented a ban specifically restricting domestic care work in those states. This move, however, has been criticized for potentially causing more harm than good. Without addressing social policies and economic disparities at home, which are often triggers for migration, the ban is said to be doing little more than forcing women workers to migrate through unsafe channels, and to be less protected by the government while abroad. Additionally, despite concerns, more than 20,000 women were permitted to travel to Gulf States for other jobs in 2017, while an untold number of women left Nepal without documentation to avoid the ban. 

Fraudulent recruitment practices are a critical challenge in the migrant worker economy, which often trap migrant workers in desperate situations and leave their families with insurmountable financial debts. Over the years, the government of Nepal introduced various policies to address these practices, including the introduction of an information management system to increase transparency and policies to minimize recruitment fees. However, a report on these policies conducted by Amnesty International found that little progress has been made in addressing the causes of abuse nor in holding those responsible to account.  

Furthermore, a review of Nepal’s migrant labor policies conducted by the ILO in 2017 showed that while Nepal’s legal frameworks promote employment abroad as a “safe and decent prospect for potential migrants,” implementation of the policies have been lacking. Among these are the National Labour Policy of 1999, Foreign Employment Act of 2007, and the Foreign Employment Policy of 2012. The report shows that while the policies aim to increase protections for Nepali citizens working abroad, they have received limited enforcement. It also notes that Nepal’s national laws do not include regulations around recruitment of migrant workers, and as described above, Nepal is not a State Party to many relevant international legal mechanisms which could help to increase the legitimacy of Nepal’s protection policies. 

The Coronavirus Pandemic and the Growing Humanitarian Crisis in Nepal

The vulnerability of Nepali migrant workers, the dependence on this labor for economic growth, the shock of the Coronavirus, and the lack of support for returning nationals is contributing to a growing humanitarian crisis in Nepal. 

In response to the Coronavirus, the government of Nepal ordered a mandatory lockdown in early March, cutting off travel to and from the country, effectively leaving thousands of Nepali nationals stranded at their country’s border or overseas. Migrant workers began reporting that their precarious positions abroad were becoming a matter of life or death; poor living conditions and lack of access to healthcare increase public health risks, companies are withholding past pay, workers are losing their jobs without unemployment insurance or residency rights, and many Nepali citizens find themselves penniless, homeless, and alone, sleeping on the streets of foreign lands. 

The situation at the neighboring border with India is equally challenging. Closed borders and bridges have forced some to swim across the Mahakali river to enter Nepal, while others have  been held on crowded buses or left in forests for days waiting for COVID-19 testing, often without food or water. When they finally reach quarantine centers, they face discrimination, overcrowding, and a lack of basic sanitation and essential care services. 

The situation will only increase in severity, as an estimated 400,000 migrant workers are waiting to return to Nepal. This is a staggering number when considering the country’s resource constraints. Nepali doctors warn that the country’s already weak healthcare system may not be able to keep up with the pandemic, and there is limited job opportunity to support everyone in need of employment. 

Nepal is among the many South Asian countries that are grappling with reintegration plans. Governments that typically rely on exported labor are now facing the immense task of reincorporating workers into the home economy, which remain largely shut down due to the pandemic. Experts warn that such mass movements of people can pose health and safety risks and lead to increased social unrest. 

In the long run, Nepal’s economy is expected to take strain, threatening businesses and workers alike. A report by the World Bank estimates that economic growth in Nepal will fall to 1.5 – 2.8%, largely due lower remittances from abroad and a decrease in trade and tourism caused by the Coronavirus. Low-income people are projected to be hit the hardest, as food and housing security is threatened, which could reinforce inequality within the country.

Ultimately, while Nepal has greatly benefitted from risky exported labor, the care and compassion for those workers has been limited. The failure of Nepali authorities to repatriate its citizens abroad may even violate international human rights law, which protects the right of all people to return to their country of citizenship. Additionally, the lack of essential services provided to repatriated citizens upon return to Nepal violates their human rights to food, water, shelter, and healthcare. 

Looking Ahead: An Opportunity for Change

The efforts of local actors to address the needs of returning nationals provides some hope for immediate relief. Among them, a new campaign started by Nepali influencers, called Nyaano Swaagat, or “Welcome Home,” aims to combat the discrimination and stigma experienced by migrant workers, and to provide important resources, including tools to manage mental health and wellness. By focusing on maintaining the dignity of the men, women and children who are returning home, the campaign advocates an important shift in the perception of migrant workers and the government’s treatment of its own citizens. 

Campaigns like this should remain strong post-coronavirus to combat perceptions of migrant workers and keep advocating for changes to the global migrant worker economy. 

Additionally, national policies need to be more than just reactive; they must be transformative. With the Coronavirus casting a much needed light on the plight of migrant workers, now is the time to establish a stronger enabling environment that better protects and supports citizens abroad at all times, not just times of crisis.

The ILO has issued a list of recommendations to help governments design coronavirus policy responses that ensure the protection of migrant workers. Leveraging these recommendations, Nepal must work to assist workers in returning home safely, and provide quality care and support when they arrive home.

When thinking long term, the World Economic Forum suggests that digitization can make migrant workers more resilient to future shocks. Recommendations include leveraging ‘know your customer’ (e-KYC) systems and linking digital remittances to savings or pension accounts that can support families in times of need. Additionally, countries like Nepal can strengthen protections for migrant workers in contracts with both host countries and the private sector.

Nepal should also make the protection of migrant workers more systematic and explicit by ratifying all relevant international human rights treaty bodies and allocating budget and resources for their implementation. Additionally, social and economic policies that encourage job growth in Nepal could help to stem the need for labor migration, allowing families to stay together and support Nepal’s development from within. 

Without real structural changes to improve the resilience of this labor force, the coronavirus will be just one shock of many to come, and countries like Nepal will remain exposed and vulnerable to future humanitarian crises.

A Glimpse of Hope from the U.S. Supreme Court: Bostock v. Clayton County

Guest Contributor Rosa Celorio is an Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy, Rcelorio@law.gwu.edu, https://www.law.gwu.edu/rosa-celorio. (Full Bio at end of  article).

On June 15, 2020, the United States Supreme Court released its historic decision in the case of Bostock v. Clayton County, ruling that employers are prohibited from discriminating against any individual on the basis of their sexual orientation or gender identity in the employment setting. The case relates to three employees who claimed they were fired after revealing they were homosexual and transgender. The Court firmly ruled that Title VII of the Civil Rights Act of 1964 and its prohibition of sex discrimination applies to gay and transgender persons. 

This decision is momentous and noteworthy for the respect and guarantee of human rights in the United States for several reasons.  First, it continues the trend of the Supreme Court in protecting the rights of persons historically discriminated against due to their sexual orientation and gender identity. The decision in Bostock is an important addition to the line of cases already adopted by the Supreme Court in Obergefell v. Hodges, guaranteeing the right to marriage equality, and Lawrence v. Texas, declaring the unconstitutionality of laws which prohibit private intimate activity between homosexual persons. The Court also offers an expansive interpretation of the prohibition of discrimination on the basis of sex under the landmark Civil Rights Act, thereby offering federal judicial protection to millions of LGBTI people who are employed in the United States.  The majority affirmatively concludes that it is unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.    

Second, it is remarkable how the Supreme Court continues identifying and protecting human rights, even when they are not explicitly included in the Constitution or federal laws. In Obergefell v. Hodges, the Supreme Court emphasized its role in identifying and protecting human rights under the Constitution, even when these are not reflected in existing legislation. This statement clearly created significant discussion and disagreements between the justices, leading to dissenting opinions in Obergefell emphasizing that the creation of rights solely belongs to the political and democratic process. The debate over the appropriate reach of the Supreme Court in identifying new rights is also very latent in Bostock, as reflected in the dissenting opinions of Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh.  The Supreme Court decision in Bostock illustrates how the check and balances system in the United States and the role of the courts can be paramount in protecting the rights of marginalized populations, especially in the area of non-discrimination.

Thirdly, the United States is currently a very divided and broken country. Much of the present polarization is related to a deep-seeded history of discrimination and inequality, which has led to protests and claims for much needed reform of current laws, policies, and institutions. It is very noteworthy that this decision was authored by Justice Neil Gorsuch, who is considered a conservative.  Judge Gorsuch applies a textualist approach to the interpretation of the Civil Rights Act, concluding that the plain text of this statute leads to the conclusion that discrimination on the basis of sex also protects homosexual and transgender persons. Chief Justice Roberts – who is also considered a conservative jurist – joined the majority.  In a moment of deep concerns in the United States over discrimination, it is extraordinary to see Justices applying conservative legal interpretation to advance the rights of millions of persons. 

Lastly, the Bostock decision is in line with numerous judgments adopted by international courts offering a flexible interpretation to the prohibition of discrimination in international and regional treaties.  For example, both the European Court of Human Rights and the Inter-American Court of Human Rights have ruled on cases establishing that sexual orientation and gender identity are considered prohibited factors under the European and American Conventions on Human Rights, even though these treaties do not explicitly mention these motives in its discrimination provisions.  As the author has indicated in her previous scholarship, an open interpretation of the non-discrimination clauses in domestic laws is a key gain for legal standards related to discrimination, and for sectors and communities particularly exposed to human rights violations. It will be very interesting to see the impact that Bostock will undoubtedly have on the crafting of new federal and state legislation in the United States protecting the rights of LGBTI persons in the employment and other settings. 

The Supreme Court ruling in Bostock v. Clayton County is groundbreaking and an important step forward in the protection of the rights of the LGBTI community in the United States. United States courts can potentially be the guardians of important human rights protections, the guarantee of non-discrimination, and access to justice.  

The US Supreme Court offered us in Bostock a glimpse of hope when most needed. 

_______________________________________________________________________

Author Bio:

Rosa Celorio currently works as Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy
at the George Washington University Law School in Washington, DC. She also teaches courses related to the US legal system, regional protection of human rights, and the rights of women, and publishes scholarship in these areas.  Previously, she worked for more than a decade as Senior Attorney for the Inter-American Commission on Human Rights (IACHR), one of the main organs of the regional human rights protection system for the Americas. In this capacity, she held various leadership positions, including the supervision of all the legal work performed by the specialized Rapporteurships on women, LGBTI persons, indigenous peoples, racial discrimination, children, and older persons, among others. She has also acted as an advisor and consultant for several United Nations agencies. She is originally from Puerto Rico.

For more information, see: https://www.law.gwu.edu/rosa-celorio

 

Social Media Platforms: A Theater for Exercising Free Speech

Guest contributor Maanya Vaidyanathan is the Policy and Engagement Manager at The Dialogue, a tech policy think-tank in India. She specialises in International Law, Gender Policies, Intermediary Liabilities and Foreign Policy. 

Guest contributor Kazim Rizvi is a Public-Policy Policy Entrepreneur and Founder of The Dialogue, a tech policy think-tank in India. Kazim is one of the leading voices in India’s tech policy discourse.

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

― John Milton, Areopagitica

Freedom of speech and expression gives individuals the right to freely express themselves without the fear of being reprimanded. This right, however, is neither absolute nor devoid of responsibility. It is a complex right that comes with reasonable restrictions, as given in Article 19(2) of the Indian Constitution

Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Convention for Civil and Political Rights provide for freedom of speech and expression in any medium, including online media. In 2020, the Supreme Court of India guaranteed this right in the online world in a landmark judgment on the internet shutdowns in Kashmir. 

The court ruled that freedom of speech and expression and the right to carry on any trade or business using the internet, is constitutionally protected and the restrictions on this freedom must be imposed under the terms stated under Article 19(2) of the Constitution.

Online platforms act as vital communication tools which dominate our everyday lives and act as a medium for spreading and gathering news. Over the last few years, the online world has allowed people to create their own communities and find the support, encouragement and courage that they may not find elsewhere. Additionally, the virtual space has given a lot of underrepresented sections of society an identity and a platform to express themselves freely, without the fear of judgment. The internet and its intermediaries play a pivotal role in allowing people from all over the world to connect, gather information and create a sense of belonging.

Every commodity has the potential for misuse, and the internet is no exception. Along with the safe spaces that have been created online, the online world has become a breeding ground for hate speech and fake news. 

In order to tackle the growing menace in the online space, the Government of India introduced the draft amendment to the 2018 guidelines under the Information Technology Act. The changes in the amended guidelines prescribe certain conditions for content hosting platforms to seek protection for third-party content. The aim of the guidelines is to reduce the flow of unwanted and controversial content on social media platforms by mandating ‘automated filters’ to mechanically take content off the platforms and trace the original author to hold them accountable. This step, however, is not conducive with the spirit of free speech. The amended guidelines fail to define subjective phrases that warrant removal of content – such as “decency” and “morality”- which gives way to a take-down process that is arbitrary and inconsistent.

The amended rules also risk misinterpretation as the drafters have not identified any proposed metrics to determine how such online content may harm public safety and critical information infrastructure. This shows how the guidelines are contrary to the landmark ruling The Supreme Court gave in the Shreya Singhal judgment in 2015.

Additionally, the revised guidelines compromise the practice of end-to-end encryption, which will give way to widespread government censorship and surveillance.  End-to-end encryption is a system of communication where the only people who can read the messages are the people communicating. Through this system, for intermediaries to monitor content, they would have to know what the content is, which may threaten users’ privacy along with their right to free speech.

The amended guidelines lead to the violation of an individual’s right to privacy, right to equality (allowed under Article 14 of the Indian Constitution) and most importantly, the right to free speech. These three rights are fundamental human rights, awarded to each individual through national and international legislation. The internet has the power to reach the masses and allows everyone the opportunity to have a voice and call out instances of injustice and mistreatment that they may witness. Through social media platforms, citizens across the world can unite despite territorial limitations. Hate speech makes the internet a toxic environment to navigate, while fake news makes it an unreliable environment. However, censoring and controlling the speech of every user will not curb these nuisances. 

Policies are required to take into consideration the interests of all people, either individually or collectively. What is therefore desirable is regulation of social media, not its censorship. Social media platforms need to continue to remain theaters for safely exercising the right to free speech.

Fait Accompli: Singapore Again Upholds Section 377A Criminalising Homosexuality

Co-authored by guest contributors Paras Ahuja and Rahul Garg. 

Paras Ahuja is an undergraduate student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. 

Rahul Garg is an undergraduate student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

On 30th March, 2020, the Supreme Court of the Republic of Singapore in Ong Ming Johnson v. Attorney-General upheld the constitutional validity of Section 377A of the Singapore Penal Code, 1871. Section 377A punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The judgement marks itself as a regressive touchpoint in Singapore’s progression towards inclusiveness and equality. 

Article 14(1) (a) of the Constitution of Singapore guarantees every citizen the right to freedom of speech and expression. The petitioners in this case contended that Section 377A derogated this right by failing to recognize one’s sexual orientation to be a part of the term “expression” within Article 14. While interpreting the term “expression,” the court applied the rule of “ejusdem-generis”. The rule postulates that wherever there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in context of the specie term(s) (here, “speech”) and not in its widest possible construction. The court, upon application of this rule, observed that “expression” is therefore restricted only to verbal “speech” and excludes sexual identity of a person. It, therefore, held that the right to freedom of expression is encompassed within the right to freedom of speech, reducing the term “and expression” to redundancy and surplusage. 

We argue that that is an erroneous application of ejusdem-generis. It is settled law that ejusdem-generis should not be applied in a way that makes the usage of the genus term redundant in a provision. This is a fundamental principle of statutory interpretation pointed out in case laws citing Sutherland. The Singaporean court’s interpretation, on the other hand, renders the term “expression” otiose and goes against the principle that legislature doesn’t use words in vain. 

Additionally, the court relied on the marginal note of Article 14 [i.e. “Freedom of speech”, assembly and association] to ascertain the scope of the provision in order to buttress its holding that “expression” is subsumed within “speech”, since the marginal note mentioned only “speech”. This reliance conflicts with the Singapore Supreme Court’s former observation in the case of Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd, where marginal notes were held to be non-exhaustive and imprecise and therefore, not determinative enough of the true contents of a provision. 

The court, furthermore, conveniently maneuvered its way to protect Section 377A from the violation of right to life and personal liberty, enshrined under Article 9(1) of the Constitution. In refusing to include the protection of “homosexual-identity” within the scope of personal liberty, the court aligns its reasoning by saying that the right to personal liberty was not an absolute one, but was qualified. It stated that “unenumerated rights were not capable of specific protection.” However, this seems particularly faulty, as “personal liberty” by itself is an abstract right; it is a collection of rights involving several aspects of a person’s life and doesn’t guarantee any specific individual right singularly. In this context, the exclusion of “unenumerated rights” from the scope of personal liberty will leave it hollow and subject to arbitrary discretion as to its scope. 

In its reasoning, the court also observed that Section 377A does not criminalise a male homosexual for his “homosexual orientation”, but only for the actus reus consisting of performance of a homosexual activity with another man. The court additionally stated that a heterosexual man would be equally liable if he were to commit a homosexual act. This distinction between criminalising the “state of homosexuality” and the conduct, that is, the “homosexual act” is farcical and theoretical. This distinction fails as it renders the manifestation of the sexual identity impractical by punishing the conduct. Identifying the flaw in such an argument, the US Supreme Court in the case of Lawrence v. Texas noted that when the act that is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as criminal. 

The court, in its subtlety, eschewed from answering the question of whether or not the sexual orientation of a person is an immutable factor. The question of immutability was deemed central by the court since the granting of the right to life and personal liberty in this case was considered to be contingent on the recognition of sexual orientation as immutable. However, frustrated with overwhelming scientific evidence from both sides in this regard, the court eventually declared this question outside the realm of legal discussion, belonging rather to the area of scientific controversy. We argue that there is no relevance of a conclusive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is vacuity in the reasoning of the court as to why a chosen sexual orientation should not be entitled to the same constitutional protection in as much as an immutable sexual orientation would be, along the “born-with-it”/“it-is-my-choice” spectrum. Therefore, regardless of homosexuality falling anywhere between this immutability/choice spectrum, the larger human rights violation relates to the resultant stigma associated with criminalization. The judgment ultimately legitimises an assumed sense of normalcy which according to the court, is only heterosexuality. At the same time, it portrays homosexuality as an anomaly not protected by fundamental rights. 

The judgement, therefore, observes a false understanding of various provisions and judicial tools of interpretation, seemingly to achieve a predestined holding. The bench microcosmically imposes its own ideas of heteronormativity on the Singaporean society, which is not only upsetting, but also mistaken.