I grew up near Brixton and from as far back as I can remember it has always been a place of special significance. As a British person of Afro-Caribbean descent, Brixton plays an important role in my cultural narrative. It was Brixton where the first wave of Caribbean immigrants arriving in England in the late 40s laid their roots and built their lives; they brought with them their music, style and culinary traditions which transformed the town, infusing it with a distinctly West-indian feel and flavour. It was also Brixton where, in a culmination of outrage and indignation at anti- black policing and institutional discrimination in the 80s people rioted, and streets and stores were set furiously ablaze. Over the years, whilst the ethnic struggle continued, Brixton nevertheless came to be emblematic of a communal unity that transcended race. Even in the midst of chronic underfunding from both the public and private sectors resulting in pockets of poverty and high crime, Brixton represented a certain togetherness, where blacks and whites united, not by ignoring their cultural and racial distinctions, but by treating these differences as important constituents of a wider communal whole.
These somewhat halcyon days of cultural and racial unity now appear to be a thing of the past in Brixton. Like many areas in London, recent years have seen the town subjected to the invidious forces of gentrification. House prices have sky rocketed and the moneyed (predominantly white) middle-classes, looking for accommodation within reasonable distance to the city, have poured in. It isn’t that an alteration of demographics is itself a problem; London is a city that has historically undergone constant change as different peoples have mixed and mingled together throughout the ages. However, it is the tendency of gentrification to eschew cohabitation and to instead displace communities and cultures that is problematic. The rising rents in Brixton have pushed many local ethnic businesses out of the area and have forced many people, particularly poorer residents of colour, within the local community into cheaper accommodation elsewhere. The result? Brixton is becoming visibly less diverse and the racial and cultural unity that was once the hallmark of the town is fast evaporating.
On a recent visit to a pop-up restaurant and bar complex in the heart of Brixton, I was taken aback by the lack of diversity in what was once one of the most cosmopolitan parts of the town. Besides myself and a friend, the only minorities present were either serving or securing the people on the premises and the diversity of food on offer did little to disguise the conspicuous lack of diversity within the venue itself. Other observers have commented on this changing face of Brixton and remarked on what can only be described as an insidious sort of “ethnic cleansing” taking part as a result of its gentrification.
Some have argued in response to these concerns that gentrification has brought investment which has in turn improved Brixton. This argument is usually embodied by the expression that “a rising tide lifts all boats”. Whilst it is no doubt true that investment improves an area, if the original residents have been forced out of the housing and business markets, then the question is who does this investment improve the area for? As a corollary to this question, we also have to ask ourselves why does investment have to wait for new residents? Couldn’t investment in Brixton to clean up the streets and open up new commercial spaces have pre-dated the demographic shift which in turn could have created jobs and opportunities for those who needed them most? These questions cast doubt over the apparent benefits of the town’s gentrification.
The story of Brixton is indeed a tale of two towns. Unfortunately, whilst the new Brixton certainly has a veneer which is more polished than the old, these improvements have come at the expense of diversity and a slow and gradual eradication of the cultural and communal unity upon which Brixton built its name.
In a recent decision the Supreme Court has ruled that Section 60 of the Criminal Justice and Public Order Act 1994 (‘s.60’) authorising ‘suspicionless’ stop searches, does not constitute a breach of Article 8 of the European Convention on Human Rights (‘ECHR’) regarding respect for private and family life. This decision has attracted much criticism and a close examination of it raises serious concerns vis-à-vis the soundness of its legal analysis, its accordance with established Strasbourg jurisprudence and its regard for key statistical information relating to the use of stop and search powers. Ultimately, the judgment reaches an errant conclusion with potentially damaging implications for the already fragile relationship between ethnic minorities and the police in the United Kingdom.
The Appellant in this case was a 37 year old Afro-Caribbean woman named Juliette Roberts. Ms. Roberts worked in a school helping young children with disabilities and had no previous cautions or criminal convictions of any kind. In 2010, Ms. Roberts boarded a bus in her local borough of Haringey, North London and following the discovery that she had insufficient funds on her Oyster card and no money with which to pay for her journey, transport police officers were called to the scene. Upon arrival, the police elected to search Mrs. Roberts under s.60 of the Criminal Justice and Public Order Act 1994. S.60 grants police powers of stop and search ‘in anticipation of violence’ and specifically authorises a police officer to stop and search any person or vehicle within a designated area for offensive weapons or instruments within a limited time period. S.60 does not require a police officer to have any reasonable suspicion prior to carrying out a search and only requires that they have the authorisation to do so from an officer of at least the rank of inspector. As Ms. Roberts worked in a school, she was concerned that some of the young people she worked with might see her being searched and so asked to be searched at a police station instead of in public. The police officers refused her request and she was restrained, handcuffed and her body and property were forcibly searched.
After her claims in the Divisional Court and Court of Appeal failed, Ms. Roberts appealed to the Supreme Court, arguing that s.60 was contrary to Article 8 of the ECHR regarding the right to respect for private and family life. Specifically, Ms. Roberts argued that s.60 conferred on overly-broad power on the police and thus was not ‘in accordance with the law’ as required by Article 8(2) ECHR.
In a unanimous decision, The Supreme Court accepted that suspicionless stop searches infringe upon the right to respect for private life, however, they argued that they are in ‘accordance with the law’, in addition to pursuing a legitimate aim and being necessary in a democratic society as required by article 8(2) ECHR. Central to the judges’ decision were what they considered to be the numerous ‘safeguards’ in place to constrain the exercise of the broad power conferred upon police officers. The judges drew particular attention in this regard to the Police and Criminal Evidence Act 1985 (PACE) which govern the steps an officer must take before they begin a search, such as telling a person their name and the object of the search and also to parts of the police Standard Operating Procedures which contain reference to the Race Relations Act 2000 which prohibits racial discrimination in the exercise of police powers. The judges also highlighted the Best Use of Stop and Search Scheme (‘BUSS’) which largely deals with authorisations given by a higher ranking officer before individual officers are allowed to use s.60 stop searches and requirements for data collection regarding the use of the power.The Court reasoned that as failure to follow these safeguards could render a stop and search unlawful and therefore expose an officer to disciplinary action or Civil proceedings, they were sufficient constraints on the use of the s.60 power.
The judges also held that the powers were of ‘great benefit’ to the public and that their unpredictability was critical to their deterrent effect. Finally, the judges’ reasoned that although there was concern that black and minority ethnic people were being disproportionately targeted with the s.60 power, black and minority ethnic people would most benefit from the reduction in violence that would result from the use of such powers as many gang members were from these ethnic groups.
Several aspects of this decision are deserving of criticism and the first is the Court’s assessment of the purported ‘safeguards’ on the exercise of the s.60 stop and search power. In Gillan and Quinton v UK the European Court of Human Rights (‘ECtHR’) had to consider a similar power of suspicionless stop and search under the now defunct s.44 of the Terrorism Act 2000. In finding that s.44 constituted a violation of Article 8, the ECtHR explicitly rejected the argument that the PACE Codes of Practice were a sufficient safeguard against arbitrary searches. The Court accepted that an officer carrying out a stop and search was bound to comply with the Codes, however, it determined that they governed only ‘the mode in which the stop and search is carried out’ as opposed to providing any real constraints on and individual officer’s ‘decision to stop and search’. From an analysis of the the BUSS scheme it is clear that this also places no additional restrictions on an individual officer’s decision to carry out a suspicionless stop and search and focuses only on the prior authorisation. The Court’s argument that the Standard Operating Procedures constitute a safeguard as they contain provisions on the Race Relations Act which if breached could expose an officer to legal or disciplinary proceedings is similarly unpersuasive. In Gillan, an almost identical argument was put forward by the Government, however, this was dismissed by the Court on the basis that “in the absence of any obligation on the part of the officer to show a reasonable suspicion, it is likely to be difficult if not impossible to prove that the power was improperly exercised.”
The judges’ subsequent remarks about the ‘great benefits to the public’ which stem from s.60 stop searches are also deserving of criticism. Figures taken from the Ministry of Justice 2010 report on Race and the Criminal Justice System show that out of the 118,119 s.60 stop searches carried out by police in 2009/2010, only 2% resulted in an arrest. It is difficult to see how a power with such a miniscule arrest rate can be said to be greatly beneficial to the public and it is obvious that its ‘unpredictability’ has done little to improve its efficacy. With this is mind, the judges’ suggestion that these benefits could in some way justify discriminatory searches is indefensible. Several reports have pointed to the astonishing race disproportionately in the use of the s.60 power, with one study by the Equality and Human Rights Commission indicating that in 2011/12 black people were 28 times more likely to be stopped and searched under s.60 than white people. This disproportionality, coupled with the bewilderingly low arrest rate, suggests grave prejudice in the use of s.60 by the police and it is difficult to see how the Court can seek to justify this on any grounds. The Court’s argument that even if discrimination is a problem, as many of these gangs are ‘largely composed of young people from black and minority ethnic groups…it is members of these groups who will benefit most from the reduction in violence” is specious. Firstly, the premise is highly debateable; there is no universal consensus as to exactly what constitutes a ‘gang’ and many commentators have suggested that the term is disproportionately applied to groups of young black males. Thus in a nation where groups of disaffected white youths almost necessarily outnumber similar groups of black youths, they avoid this type of predatory categorisation and acknowledgement in mainstream discourse. Next, the notion that s.60 has a serious effect on the level of youth violence is also highly debateable. Tellingly, the judges adduce no references to support this assertion, however, common sense dictates that if the arrest rate for s.60 is so low, it is unlikely that it can be having a profound effect on levels of youth violence. What is most concerning about this passage however, is the suggestion that as some young people from black and minority ethnic communities are involved in violent crime, it is somehow justifiable to treat all young black people as potential suspects. Not only would such racial profiling be manifestly unlawful under the same PACE Codes and Race Relations Act that the judges had earlier lauded, but this reasoning has the effect of reinforcing harmful and pernicious stereotypes of young black people as potential criminals, conveniently paying no attention to the overwhelming body of evidence which suggests that they are also far more likely to be the victims of violent crime than any other race.
A close analysis of the Roberts judgement reveals that it reaches a wholly unsatisfactory conclusion. In their analysis, the Supreme Court essentially disregard the criticisms and concerns expressed by the Strasbourg Court in Gillan and reach a decision as to the compliance of s.60 with the ECHR which is seemingly devoid of any appreciation of the many reports and statistics related to the futility and racially disproportionate use of the power . It is perhaps no surprise that after stinging criticism by the Home Secretary regarding the discriminatory and unlawful application of s.60, its usage has dropped dramatically in recent years. Nevertheless, the Court’s holding of it as compliant with Article 8 ECHR and attempts to justify its discriminatory application risk reviving its usage and exacerbating tensions between the police and ethnic minority communities who see it as a tool of racial oppression.
In the wake of the large number of asylum-seekers entering Europe from the Middle-East and Africa, the majority of political and media attention has been focused on the question of which European countries should be responsible for accommodating these people and in what numbers. The narrow focus of this debate has ignored the root causes of the crisis, causing many to disregard the critical role played by many European States in the creation and continuation of hostilities in these asylum seeker’s countries of origin. Through an examination of this role, it is clear that Europe bares great responsibility for the people reaching its shores and in many ways, can be said to have engineered its own crisis.
The greatest number of asylum-seekers arriving in Europe in recent times have been from Syria and this is the result of a long and bloody civil war between State security forces and armed rebel factions which has ravaged the nation’s civilian population. Since the outbreak of the Syrian civil war in 2010, several European States have been implicated in the provision of both financial and military assistance to anti-government forces in their attempt to overthrow the regime of President Bashar Al-Assad and crush his supporters. In August 2012 the British Government announced that it would be sending 5 million pounds to opposition groups in Syria to aid them in their military operations. In addition to providing financial assistance to the rebels, the UK has also been involved in the establishment of military camps in neighbouring States Turkey and Jordan where they have been training rebel fighters. As well as the United Kingdom, France have also played an active role in the Syrian civil war. In 2014, French President Francois Hollande revealed that France had directly supplied weapons to opposition groups in Syria. The direct supply of weaponry to the rebels was made possible after the EU voted to lift an arms embargo on Syria which prohibited the exportation of arms directly to rebel militias. European States have also used indirect means to supply weaponry to rebel groups, such as through the trade of arms with Gulf States who have funnelled these weapons to the opposition factions they support. This supply of financial and military assistance to anti-government forces has had the effect of substantially prolonging the life of the Syrian civil war which has led to millions more civilian deaths, internally displaced persons and asylum seekers travelling to neighbouring States and also to Europe to escape the violence.
The second largest number of asylum-seekers arriving in Europe in recent times are reported to be from Afghanistan, another nation which for years has been riven with internal strife and violence. The involvement of European nations in Afghanistan is well documented and dates back to 2001, when in response to the September 11 attacks in the United States, Britain, later joined by NATO forces from Europe invaded and occupied Afghanistan. In 2003, NATO took permanent command of the International Security Assistance Force (ISAF) and became embroiled in a bitter war with Taliban rulers for the control of key cities within Afghanistan. 2015 is reported to have been one of the most violent years since the Afghan War began with over 5,000 civilian casualties reported this year so far. The perpetual fighting between Afghan, European and US forces has led to the immense displacement of persons as tens of thousands of civilians have fled, many of them to Europe, in order to escape the increasing violence and unrest in the nation.
Libya also represents a common destination from which many of Europe’s recent asylum-seekers have travelled. Prior to events which culminated in foreign military intervention in 2011, Libya was a relatively stable nation with reportedly one of the highest standards of living on the African continent. Due to its large crude oil reserves, it was also one of the founding member states and key nations within OPEC, the organization of petroleum exporting countries. In 2011, Libya descended into a fierce civil war between the security forces of then President, Muammar Gaddafi and armed rebel militias. Following a call from the United Nations for member states to take all measures to “protect civilians and civilian populated areas…while excluding a foreign occupation force of any kind”, a foreign intervention force led by NATO began to offer military support to the rebels, as well as to carry out airstrikes and naval blockades aimed at weakening the President and his security forces. Thousands of civilians died during this period of bitter fighting between Gaddafi’s security forces and western-backed militias determined to overthrow him. As well as high numbers of civilian deaths, the fighting led to thousands of internally displaced persons and many fled the country, seeking asylum in neighbouring States and the West. The killing of Gaddafi created a power-vacuum in Libya and ferocious internecine warfare ensued between the controversial new government and well-armed militias who refused to disband once the new Libyan government was in power. This has been dubbed by many as Libya’s ‘second-civil war’ and has resulted in large numbers of civilian casualties and displaced persons. In addition to this, since the fall of Gaddafi’s government there have been several reports of systematic, racially motivated murders of black African workers by rebel forces who are reported to operate with impunity in the now lawless country. This ongoing violence has led to thousands of civilians fleeing the country, many of whom have made their way to Europe in order to escape the violence.
The above demonstrates the key role that several European nations have played in the violent conflicts many asylum-seekers now travelling to the continent are risking their lives to escape. This role has been characterised both by the provision of financial and military assistance to various armed factions and by the direct intervention of European forces within these foreign conflicts. Instead of bringing about a swift-resolution to these conflicts, European involvement has had the effect of intensifying and protracting these armed struggles, the result of which has been an even greater exodus of people, many of whom have fled to Europe in search of safety. In many ways therefore, the ‘migrant-crisis’ has been a phenomenon of Europe’s own making and it is clear that as such, European nations should take far more responsibility for these desperate people’s accommodation.
In an astonishing recent judgement, the Grand Chamber of the European Court of Human Rights has upheld France’s ban on the wearing of the Burqa and Niqab in public places. Whilst some commentators have heralded the decision as a progressive step in the protection of women from cultural and religious pressures, a closer analysis reveals that beyond the court’s scant and inconsistent reasoning, a worrying precedent has been set which grants states almost unfettered authority to discriminate against disfavoured minorities in the name of social cohesion. This article explores the judgment and examines its implications.
The applicant was a 24 year old female (Named ‘SAS’ by the court for reasons of anonymity) who was a resident and national of France. SAS declared that she was a devout Muslim who, due to the demands of her faith in addition to her personal convictions and culture, chose to wear both the Burqa and the Niqab in public and private situations. The applicant maintained that she did not always wear these garments and did not object to removing them for certain security and identity checks, however, she wanted to be able to wear them at certain times when she felt the need to be closer to her faith. Such circumstances included for example, during the Islamic month of Ramadan when Muslims are required to fast and typically make an effort to observe their faiths more rigorously. SAS declared that she was under no pressure to wear these garments and asserted that her decision to cover herself was entirely of her own free will as an expression of her Muslim faith.
Adoption of the French Law “Prohibiting the concealment of the face in public places”
On 11 April 2011, law n° 2010-1192 “prohibiting the concealment of the face in public places” came into force in France. The law has an extremely broad scope and covers not only all places open to the public such as city squares and parks, but also all those where a public service is delivered, such as museums and hospitals. The penalty for contravening this law is a fine of up to 150 euros and/or a compulsory “citizenship course”.
The adoption of the law was the direct a result of a report drafted by a cross-party Parliamentary commission which was established to examine the implications of the wearing of the Veil in France. The report disclaimed the idea that the veil was a traditional expression of the Islamic faith and instead asserted that, at least in France, it was a novel phenomenon which could be linked to the rise of Islamic fundamentalism. Furthermore, the report categorized the veil as being a powerful tool in the subjugation of women and as such, inimical to the ideas of ‘liberty, equality and fraternity’ which lie at the heart of the French constitution. The report also held that the veil precluded contact between individuals and thus constituted both a physical and symbolic barrier between those who chose to wear it and the rest of French society. This it claimed, impinged on the French notion of ‘living together’ which was fundamental to social cohesion and integration.
Claims at the European Court of Human Rights
On the same day the law entered into force, SAS made an application to the European Court of Human Rights (ECtHR) in Strasbourg, alleging that the ban violated a host of her rights under the European Convention on Human Rights (ECHR). The essential rights that she claimed had been infringed were Article 8 ECHR regarding the right to respect for private and family life and Article 9 ECHR which protects an individual’s right to freedom of thought conscience and religion. The applicant claimed that whilst the ban was ‘prescribed by law’ for the purposes of the Convention, it didn’t pursue any identifiable ‘legitimate aim’ under the articles and neither was it ‘necessary in a democratic society’.
On the 28 May 2013 the 7 Judge Chamber that was scheduled to hear the case relinquished jurisdiction to the 17 judge Grand Chamber of the Court who proceeded to examine the parties’ arguments.
Decision of the Grand Chamber
By a majority of 15 votes to 2 the Grand Chamber of the ECtHR held that the banning of the Veil did not violate the applicant’s rights under Article 8 and 9 of the convention, nor any other of her Convention rights for that matter.
Prescribed by Law
This requirement was not contested either by SAS or by the State. It was clear that the measure was ‘prescribed by law’ from the text of law n° 2010-1192 and its coming into force on 11 April 2011.
The Court noted that whilst the ban did not pursue any specific legitimate aim outlined in Article 8(2) or 9(2) of the ECHR, it nevertheless accepted the Government’s contention that it infringed upon the State’s notion of ‘living together’, which it claimed could be linked to the aim of ‘ protecting the rights and freedoms of others’. It is worth re-visiting here, the verbatim words of the Court in its justification of this novel legitimate aim:
“The Court takes into account the respondent State’s point that the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”
Finding that ‘living together’ was therefore a legitimate basis upon which States could limit the fundamental rights of their citizens, the Court then proceeded to an examination of whether or not the measure was ‘necessary in a democratic society’ or in other words, whether the ban was proportionate to the aim pursued and the least restrictive means of achieving it.
Necessary in a Democratic Society
In finding that the ban was legitimate to the aim pursued the Court first determined that in matters concerning the State and religion, the State, having democratic authority and a clearer idea of the needs and conditions within a particular society, should have a wide ‘margin of appreciation’. In other words, in matters concerning religion the Court determined that States would have a large degree of discretion in determining what restrictions may be deemed ‘necessary’ for the purposes of the ECHR. The Court supported this idea by pointing to what it considered to be a lack of consensus amongst European nations regarding whether or not the veil should be banned.
Further, the Court considered as significant the fact that the ban had not been levelled against the wearing of the veil per se but rather against the “concealment of the face” (la dissimulation du visage) in public places. The Court claimed that this distinguished it from previous cases where the specific banning of religious garments in public was held to be a violation of the ECHR.
The court next considered the gravity of the punishment for wearing the veil in public. Whilst the court conceded that ‘the idea of being prosecuted for concealing one’s face in a public place is traumatising for women who have chosen to wear the full-face veil for reasons related to their beliefs’ it nevertheless reasoned that the sanctions were ‘among the lightest that could be envisaged’ by the French legislature and thus by implication were the least restrictive means available and proportionate.
The Court then, quite paradoxically, reasoned that whilst through a restriction on the wearing of the veil in public places France had ‘restricted the reach of pluralism’ which it had previously claimed was a ‘hallmark of a democratic society’; in banning these garments, the French Government was trying to ‘protect a principle of interaction’ which was necessary to preserve pluralism and a spirit of tolerance and broadmindedness within society.
With these reasons taken together, the court ruled that there had thus been no violation of the Convention as the ban was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.
Remarks and Criticisms
Several troubling inconsistencies emerge from the Court’s decision to uphold France’s veil ban. Firstly, the Court’s justification for allowing States a wide margin of appreciation in this area deserves some criticism. Whilst the Court recognized that amongst the Council of Europe members, only Belgium had taken the active step of banning the Burqa in public places, it nevertheless reasoned that because a ban was ‘being discussed’ in several other European States, there was thus no clear consensus against the banning of a veil – which widened the discretion afforded to France. The truth is that whilst there had indeed been debates on the issue within several European States, no other nation had taken the radical step of legislating an outright ban on the wearing of veil in public except Belgium, which passed its ban against a backdrop of international criticism and rebuke . This evidence clearly points to a European consensus against the banning of the veil – it does not suggest that there is no consensus whatsoever and the Court’s argument simply inverts the truth in order to reach its preferred conclusion.
Secondly, the Court’s suggestion that because the law itself did not explicitly ban the veil that it is therefore proportionate, ignores entirely the pretext in which the law was passed. Both the Parliamentary debates and report which led to the adoption of the law centred almost exclusively on the veil (‘la voile integrale’) and the French legislature seem only to have adopted a ban on the covering of the face on the advice of the Conseil d’Etat that a specific prohibition on the veil would fall foul of the Constitution and ECHR. It seems to be immaterial therefore, that ostensibly the law purports to ban only the ‘concealment of the face’, as it is manifest from material which the Court had before it and even presented as part of its judgement, that its real intent was to ban the veil.
The Courts suggestion that the criminal sanctions for wearing the veil are ‘the lightest possible’ borders on the risible. Criminal sanctions, are by their very nature, serious penalties which may lead to both prosecution before a Court and a criminal record. In this case, a simple caution or even civil penalties may have been used to achieve the aim sought and it is a fallacy for the Court to suggest that because the sanctions in question are not the most grave criminal penalties imaginable they are the least restrictive means of achieving the aim persued. It should also be noted that 150 euros, whilst perhaps a ‘light’ sanction to the moneyed middle – classes of the French legislature and the Court, could impose a substantial financial burden on the mostly working class demographic of women who choose to wear the veil in France. This burden could be amplified as women who truly feel they have no choice but to wear the veil and thus find themselves to be ‘repeat offenders’, face the daunting prospect of being fined each time they leave their homes and this sum thus multiplying into thousands of Euros over time.
The alternative imposition of a ‘citizenship class’ for wearing the veil is also a severe and unnecessary sanction. This vindictive punishment forces women, who may very well be French-born or like SAS – naturalized French nationals, to accept that as long as they uphold their religious and cultural traditions, they will never be regarded as French. They will as a result be made to endure the humiliating and grossly patronizing punishment of being ‘educated’ by the State as to what being French is, simply for retaining this aspect of their religion and culture. It is clear that such an odious punishment cannot credibly be classed as ‘light’.
The Court’s following remarks on pluralism are simply contradictory. It cannot at once concede that France has ‘restricted pluralism’ by banning the veil in public and then accept its justification that it is actually trying to preserve pluralism by doing so. The concept of pluralism does not admit degrees and neither does it metamorphose depending on whose perspective we consider it from. Either a State permits the free expression of different cultures, customs and religions within its borders or it does not – it cannot say that it supports pluralism, but only its version of pluralism which in France’s case, explicitly excludes the Burqa. It is bewildering that the Court would advance such paradoxical logic.
Finally and perhaps most worryingly, is the Court’s endorsement and subsequent creation of the novel legitimate aim of ‘living together’. Whilst the Court concedes that the list of legitimate aims under Articles 8(2) and 9(2) ECHR are ‘exhaustive and interpreted restrictively’ it nevertheless creates, ex nihilo, an entirely novel legitimate aim for States. From now on, States do not have to show how a restriction on the freedom of religion is necessary in order to protect such serious concerns as ‘public health’ or ‘national security’, but only that it offends against their subjective notion of ‘living together’. This remarkably broad and nebulous concept gifts governments who may be motivated by a sole desire to discriminate against particular minorities with an innovative tool in order to do so. It is not hard to imagine how many other religious and cultural practices may be rendered illicit in the future under the smokescreen of ‘living together’. Perhaps some States may decide that Sikhs wearing turbans or Jews wearing kippahs offends against their idea of ‘living together’ and decide to introduce prohibitions on these practices. As a result of the Court’s new legitimate aim, they now need only show that such bans are proportionate in order to comply with the ECHR. History is laden with examples of State sponsored discrimination; The persecution and prejudice experienced by religious and racial minorities during WWII and the desire that such terror should never be wrought again was one of the main driving forces behind the creation of the ECHR and the ECtHR. It is bitterly ironic that the same Court that was setup as a bulwark against such State sponsored incursions into our individual rights and freedoms would now be the organ that seeks to legitimize them.
Granting States the final say on what ‘living together’ means and allowing them to use their definitions to restrict their citizens’ rights is a catastrophic development in the jurisprudence of the Court. The effect of this decision is to ignore the advances of multiculturalism within Europe and to hark back to an era where States consisted of one homogenous group of people with all others considered as foreigners or outsiders. As it is clear that this is no longer the case in the majority of European countries, the effect of the Court’s judgement is to endorse discrimination against those who don’t look, dress and act like the majority and such a decision rubber stamps the xenophobia and prejudice which have been on the worrying rise in Europe.
As the dust settles on the spectacle of Sochi and Brazil goes into overdrive for its preparations in the build up to this year’s Fifa World Cup and the 2016 Olympics, the spotlight is now beginning to shine on another nation which has its sights firmly set on international glory for 2022. This nation is the Arab Emirate of Qatar, which has embarked on a policy of aggressive expansion and rapid infrastructural development in the run up to the olympic games. Qatar, one of the wealthiest states per capita in the world, is so far estimated to have invested a staggering ($)200bn into construction and infrastructure projects for the event and whilst it is without doubt that a large part of this capital has been raised by profits from the countries main export commodities, gas and oil, the nation’s finances have also been been bolstered in recent years by a multitude of investments into several Western nations and corporations . Qatari investments in the West have not been entirely one sided however; many western nations and corporations have also sought to improve relations and increase trade with Qatar with the nations low rates of tax being a major pull factor. The reciprocal investments between Qatar and the West have increased dramtically in recent years and it is predictied that they will increase yet further in the years leading up to 2022, as states and corporations seek to cash-in on the revenue sure to be generated by the first World Cup to be held in the Arab World.
It is not just the opression of homosexuals in Qatar which seems to have evaded the criticism of many Western Governments and corporations however. Recently, Google announced that it would be investing a reported ($)14 million into the East-African State of Uganda in efforts to capitalize on increasing internet usage within the country . Whilst this announcement has been praised by some as a means of promoting growth through enhancing the technological capabilities of the nation, for many, there has nevertheless been dissapointment that Google, who took such an active stand against the mistreatment of homosexuals in Russia, seem to have been entirely reticent on the grave repression of homosexuals within Uganda. On the 24 February 2014, Ugandan President, Yoweri Museveni gave assent to what is termed the ‘Anti-Homosexuality Act’ The stated purpose of this act is to “prohibit any form of sexual relations between persons of the same sex; prohibit the promotion or recognition of such relations and to provide for other related matters.”Whilst Provisions proscribing the death penalty for certain homosexual offences were dropped from the Bill just prior to its enactment, the legislation nevertheless imposes a 14 year prison sentence for homosexual acts and a life sentence for anyone found guilty of what is termed “aggravated homosexuality.” Upon its enactment the law caused a storm of controversy with several organizations and prominent figures issuing statements excoriating the Ugandan legislative for passing it, however there has to date been no official response to the legislation from Google, who continue to push ahead with investment plans within the nation.
In addition to Google’s investments in Uganda, The Coca-Cola Company have recently sought to increase trade with Ethiopia and have made a ($)20 million investment into a new glass bottling factory in one of the nation’s most rural regions. LGBT rights in Ethiopia are notoriously scarce and Like in Qatar and Uganda, homosexual Acts are expressly criminalised under Ethiopian Law. At a national conference in June 2012, a host of Ethiopian government officials, civil representatives and religious leaders congregated to formally declare their opposition to LGBT rights and reportedly condemned homosexuality as a “Western epidemic”. Despite Ethiopia’s stance on homosexuality, Coca Cola have issued no statements nor produced any similar advertisements aimed at criticizing the the nation.
The claims In Re South Africa Apartheid litigation arose in 2002 following the alleged involvement of 5 major multinational corporations in gross Human Rights violations during the Apartheid era in South Africa. Mr Ntsebeza, a black South African national, along with a host of other claimants brought a class-action lawsuit in the United States alleging that Ford, Barclays, IBM, General Motors and German automotive manufacturer Daimler GM not only knowingly conducted business in South Africa during the apartheid regime, but worse, that they provided direct assistance to and acted in accordance with the South African government and security forces during their brutal oppression of blacks and other minorities over the course of Apartheid.
The claimants alleged that Ford, General Motors and Daimler GM manufactured vehicles which were used by the South African security forces to violently suppress opposition to apartheid and inflict wide spread atrocities amongst the black civilian population. These companies, who owned a multitude of factories and plants in South Africa during Apartheid, were also accused of callously retaliating against employees who were found to be participating in the anti-apartheid movement, through such means as, unfair dismissals, intimidation and even assisting with unlawful detentions and torture in collaboration with the apartheid authorities. The corporations were also accused of providing de facto support to the apartheid regime by implementing segregation within their own facilities and grossly underpaying blacks for equal work.
IBM were accused of actively assisting the Apartheid state by producing race-based identification documents which were used by the authorities to greatly restrict the movement of blacks around South Africa. These documents also allowed the authorities to implement a meticulous geographic separation of the races, whereby blacks were forced into remote and dilapidated shanty towns known as ‘Bantustans’ and obligated to live there as ‘Bantus’ deprived entirely of South African nationality and any of the corresponding rights of such citizenship.
Barclays were accused of participating and assisting in the geographic separation of the races by refusing black employees the opportunity to work in, or be transferred to branches in predominantly white areas. This practice was not mandatory under South African law at the time and thus Barclays were accused, of providing de facto support to the apartheid regime through the implementation of such policies.
The Defendant companies rejected the legal culpability for their actions but never denied their involvement in apartheid in the ways advanced by the claimants.
Claims in United States
As the Republic of South Africa was originally opposed to the litigation, the claimants elected to bring their action in the United States, alleging that the corporations concerned had all aided and abetted gross human rights violations, which was an actionable offence under the Alien Tort Statute (ATS) . The ATS is an old piece of US legislation which grants United States courts original jurisdiction over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States‘. In other words, the ATS potentially allows for a foreign claimant (a non-national and non-resident of the US) to sue a foreign defendant (also a non-national and non-resident of the US) in a United States court for gross Human Rights violations, irrespective of where these violations occurred. The ATS has been instrumental in allowing many individuals whose human rights have been violated but whom, for a variety of reasons, were not able to obtain any redress in the place where these abuses occurred, to recover damages by bringing claims in the United States.
The District Court dismissed the claims in 2004, holding that aiding and abetting was not a viable cause of action under the ATS. In 2007, the Court of Appeals for the Second Circuit reversed the decision of the lower court, holding that aiding and abetting was actionable under the ATS and remanded the case back to the District Court for further hearing. The defendant companies then appealed to the Supreme Court of the United States, asking the Court to rule definitively on the issue.
Lack of Quorum in the Supreme Court
In an extraordinary turn of events, the Supreme Court declared that it would not be able to hear the appeal, due to the fact that 4 of the 9 Justices on the Court had to withdraw from proceedings based on their financial and personal interests in the companies involved. The Court thus lacked the required Quorum (6 Justices) it needed to hear a case and was subsequently forced to affirm the ruling of the Second Circuit Court of Appeal without declaring it binding precedent. The claims against the corporations were thus able to proceed.
Impact of Kiobel v Shell
On 17 April 2013 the Supreme Court handed down its judgement in the eagerly anticipated case of Kiobel v Shell. This was a case concerning a number of Nigerian nationals, who were suing the Anglo-Dutch company Shell for its alleged complicity in torture, rape and the extra-judicial killing of activists in the Ogoni region of Nigeria. The claimants could not bring the claims in Nigeria, because they feared reprisals from powerful elements within the Nigerian Government and military, who they claim had been heavily involved in the abuses. For this reason they too, like the claimants in the In Re Apartheid cases, sought to rely on the ATS to bring their claims against Shell in the United States.
The central questions for the judges in Kiobel were whether or not:
1. The ATS applied extra-territorially to foreign defendants operating outside the US.
2. Corporations could be sued for violations of International Law.
The Court considered that the issue of paramount importance was the primary question and so re-heard the case based on this question alone.
In a unanimous decision, the court ruled that there was no definitive proof that the ATS was ever enacted to allow foreign claimants to sue foreign defendants in US courts for harms that occurred outside of the US. The decision of the judges was very much alive to the diplomatic burdens that it would place on the United States to allow harms occurring in other people’s countries to be brought before their Courts. For some, the ruling was a victory for US foreign relations but for others, particularly those who have pushed for the universal enforceability of human rights norms, the decision was a major setback which could ultimately provide carte blanche for corporations to continue to commit human rights violations abroad whilst providing no redress to victims.
The Kiobel decision has had a dramatic impact on the ensuing success of the claims in the In Re Apartheid litigation. In August 2013 The Second Circuit Court of Appeals remanded the case back down to the lower courts suggesting that the claims be dismissed in light of the Kiobel ruling. General Motors reached an earlier settlement with the plaintiffs, however, on 26 December 2013 the court of first instance held that, the claims against Daimler did not ‘touch and concern’ the US with sufficient force to rebut the presumption against extraterritoriality applied in Kiobel and thus had to be dismissed. The claims against IBM and Ford, the two remaining plaintiffs, were however not dismissed. The court instead asked the parties to produce briefs on the question of whether corporations may be liable for breaches of International Law – which was the original, unanswered question in the Kiobel v Shell case. This leaves open the possibility for corporate liability for human rights violations abroad, however, whether or not other courts and perhaps ultimately the Supreme Court, will answer this question in the affirmative remains to be seen.
Firstly, let me start by saying that despite what we hear or see on television shows, radio, films or any other opinions pedalled in the popular press; as a general rule confidence, is NOT something we are born with – it’s a skill that we have to develop.
The idea for this post arose following a number of discussions with family members, friends and a particularly vivacious debate with a colleague at work, after which it came to be quite apparent to me that many people perceive confidence to be something innate – A God-given attribute reserved only for a chosen few that everyone else must be in awe and amazement of. Whilst this message has been widely perpetuated, in my opinion, it frankly couldn’t be further from the truth.
Now clearly, the people that possess this view aren’t entirely to blame for its propagation. We live in an age where some skilled (and in many cases wholly unskilled) individuals are elevated to God-like status. The way they behave, coupled with the constant adulation they receive leads many of us to think that there’s something we’re missing, something we don’t possess which is the reason for their ‘star power’ and not our own. If you happen to think like this, believe me you’re not alone, however, if we think carefully and examine some examples from around us, then we’ll see that this idea is essentially baseless and that far from being unattainable, star-like confidence is something which is very much within our reach.
Whilst studying at university, I had the opportunity to be a mentor as part of the Springboard project, which was a voluntary scheme some friends and I established to help young, disadvantaged black boys from inner-city schools in Nottingham aspire to higher education. As part of the scheme, I spoke to many young children about their aspirations and desires and what became apparent to me after a short space of time was that it wasn’t the desire or even the ability that these boys lacked, but rather the CONFIDENCE to turn their aspirations into realities. The origins of this lack of confidence were myriad; many of the boys had come from difficult backgrounds where poverty, lack of stability at home and lack of opportunity had taken a heavy toll on their self-belief – Add this to the aforementioned assumptions that our contemporary culture helps us to make about ourselves and others and it was not hard to detect the root of this down-trodden disposition.
Whilst many of the boys had certainly begun the program with a very low confidence level, one of the most incredible things about the Springboard project was witnessing the CHANGE that occurred within the children over the course of the programme. By inculcating the right messages into their minds and by giving them the right support and encouragement, many of the boys were able to ACQUIRE confidence over the course of the programme and I’m sure I can speak for everyone involved when I say that we were able to see genuine change and development across the board.
If this acquisition of confidence can occur in young children, then there is no reason why it cannot occur in adults. After speaking to some good friends about their experiences as newly qualified teachers (the profession of choice amongst most young people these days it seems!) they informed me that after struggling initially with the rigorous demands of the job, they now, several months later feel much more confident in their positions and in their abilities. This increase in confidence is clearly not just limited to those embarking on a career in teaching, friends in various other professions have attested to the same confidence increase in their professions and even though my own professional career is nascent, having only just completed my studies, I feel that confidence in my own ability at work has also improved exponentially since I began. On balance, I’m sure that most people could attest to this increase in confidence at work, yet it seems strange that notwithstanding this, many people still refuse to accept the notion that confidence is something which can be acquired and developed OUTSIDE of the world of work.
One of the books that we gave to our mentees at the end of the Springboard program, which is co-incidentally one of my favorite books and a reccomended read for anyone who can get their hands on a copy, is called ‘The Magic of Thinking Big’ by David.J Schwartz. In this book Schwarz re-iterates the principal that confidence must be developed and he provides some tips for how this might be done.(A fairly good sum up of he main point of the book can be found here).
Reading Schwartz and putting some of his idea into practice, We can see that far from being something innate, confidence is something which is and must be developed, and that it is possible for anyone, regardless of their original disposition, to achieve it in large measures.
So the next time we catch people in awe of others for a supposedly ‘gifted’ quality and belittling themselves, it’s our duty to remind them that these people were not born with great confidence, but ACQUIRED and DEVELOPED it through various means, and so can everyone with time and effort.