In the wake of yet another tragic mass-shooting in the United States, the debate concerning gun reform has, once again, been brought sharply into focus. The latest research from the gun violence centre indicates that in the past 5 years alone there has been a total of 1,624 mass shootings in the US, which is equal to almost one mass-shooting a day on average. Furthermore, restrictions on the possessions of guns appear to be at an all-time low, and more states than ever now have right-to-carry laws. Despite promises made to implement legislative changes in the aftermath of the recent Florida Park shooting, which left 14 children dead, President Trump seems to have significantly backpedalled on plans for reform. Many suspect this inertia to be mainly the result of resistance from the powerful US gun lobby, the National Rifle Association (NRA) which, through financial contributions, a highly organised grass-roots campaign and considerable spending on internet and television advertisements, wields sizeable political influence.
As mass-shootings continue unabated in the US, what appears to be lacking from mainstream media discourse on the subject is a persistent effort to engage with common anti-gun control arguments. This has meant that in some corners, these arguments have gained credence and can be found being repeated after almost every single mass-shooting occurs. In response to this, this article will examine some of the most commonly used arguments against gun reform and see to what extent they can be said to stand up to close scrutiny.
“Guns don’t kill people, people kill people.”
This argument runs that as it is not guns themselves that kill people but rather people pulling their triggers that do, instead of focusing on regulating guns, society should instead focus its attention on the people carrying out these shootings. This is perhaps the most commonly deployed argument against suggestions to reform gun laws however, whilst it admittedly has some superficial appeal, a closer look at it reveals that it is flawed.
It is, of course, correct to say that guns do not kill people of their own accord. Guns are inanimate objects, and before a mass shooting, they do not suddenly become possessed of evil spirits, wickedly pulling their own triggers in a frenzy. Restricting gun ownership however, would not be an endorsement of the idea that guns did literally kill people (although the number of accidental gun killings is not low). Instead, reforming gun laws would be a recognition of the fact that, whilst it is indeed people who generally decide to kill other people, guns greatly facilitate these killings, with the assault-style weapons frequently used in mass-shootings having been designed to kill as many people as possible in a short space of time. It is for this ability to facilitate killing that there have been calls to reform to gun laws, and the argument that “guns don’t kill people” is little more than a straw-man, masquerading as a legitimate response to a position never genuinely advanced by those calling for reform.
This, of course, does not mean that society cannot and should not do more to address the people carrying the guns, however the two options are not mutually exclusive; society can definitely do more to tackle issues such as mental health and socio-economic factors that can lead people to commit atrocities, whilst at the same time reducing the chance that would-be attackers can commit mass carnage with weapons designed to facilitate death.
“The second amendment protects my right to own and use guns, therefore the government cannot take my guns away from me.”
In modern political and media discourse, the Second Amendment has become synonymous with an unrestricted right to own and use whatever guns an individual pleases, wherever an individual pleases. So prevalent is the belief that the US Constitution protects such a right, that those who advocate for even minimal gun control laws are often characterised as “anti second amendment”, and those who would like to see even modest gun controls evaporate, “pro second amendment”. In order to assess this argument, it’s necessary to take a closer look at the Second Amendment.
The Second Amendment to the US Constitution is one the nation’s oldest laws having been adopted in 1791. It reads:
“A well-regulated militia being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
The US Supreme Court had the chance to decisively interpret the Second Amendment for the first time in a 2007 court case that came before it. This case involved a ban on handguns by the District of Colombia in Washington D.C and a requirement that all firearms in the home be kept trigger-locked in an unusable condition. In this case, the court decided that the Second Amendment did protect an individual’s right to own guns, however importantly, it restricted that right to no more than the right to keep a loaded handgun in the home for self-defence. Far from arguing that this right was unrestricted, as many seem to believe today, the Supreme Court stated in its judgment that:
“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
As well as endorsing restrictions on who may purchase guns and where they may be carried, US Courts have also interpreted the Second Amendment as placing restrictions on the type of guns individuals can own. In 2015, the Court of Appeals for Maryland stated that:
“…assault weapons and large-capacity magazines are not protected by the Second Amendment”
More recently, in a case which had to do with a ban by the state of Massachusetts on AR 15 Semi-automatic rifles, in upholding the ban, the Court of Appeal for Massachusetts stated conclusively that assault weapons :
“fall outside the scope of the Second Amendment and may be banned”.
These cases show that the Second Amendment does not protect an unfettered right by anyone to own whatever gun they please. Instead, courts have recognised that it protects only a limited right to keep a weapon in the home for self-defence, and far from prohibiting the state from taking any action on gun reform, regulating the commercial sale of arms and prohibiting assault-style weapons has been held to be perfectly in accordance with the Second Amendment.
“Hammers and plastic bags can be used to kill people, if we ban guns are we going to ban these too?”
In order to understand why this oft-cited argument is problematic, we have to look at two factors namely, the purpose an object was created for, and the consequences of its incorrect usage.
Hammers and plastic bags were both created for what we may describe as non-harmful purposes; hammers were created as tools of construction and plastic bags to carry consumer goods. Granted, it is clear that if used for a purpose they were not created for, both objects can cause a degree of harm; a hammer, for example, can be used to hit someone over the head with, and a plastic bag for suffocation. Whilst this is possible and harm can be caused with almost any everyday object, this is plainly not the purpose these objects were designed for. Further, even if they were to be misused, the harm they can cause is relatively limited – a hammer could be used to hurt or seriously injure someone but the chances of someone with a hammer killing large numbers of people without being resisted or apprehended are extremely low. Likewise, a misused plastic bag could cause injury but the potential for harm and the likely scope of this harm is extremely limited.
Firearms, particularly the semi-automatic and automatic types frequently used in mass-shootings, are entirely unlike these everyday objects. These weapons have their origins in warfare and the purpose of their creation was to kill and/or maim as many enemy combatants as possible, as quickly as possible. Not only therefore, very unlike hammers and plastic bags, do they have an incredibly harmful purpose, but the potential harm that can be caused from their misuse i.e. not being used on enemies in warzones, is immeasurable. When unleashed on innocent civilians, these weapons can kill tens, even hundreds of people in seconds and, as past attacks have demonstrated, the nature of these weapons makes the attackers almost impossible to apprehend unless they voluntarily desist in their carnage.
With this in mind, it is therefore clear why, although it is true that hammers and plastic bags can be used to hurt or even kill people, the purpose for which they were created and the scale of harm that could result from their misuse, means that it is justifiable for us to take a different approach to their regulation as compared with assault-style weapons.
“Mass shootings always occur in gun-free zones, we, therefore, need fewer gun-free-zones to prevent this.”
One of the most widely perpetuated assertions is that mass shootings occur almost exclusively in gun-free-zones. Supporters of this argument point to the shootings in elementary schools and concerts and make the argument that if only people were allowed to carry arms everywhere they went, then these tragic events would have likely been avoided.
The first problem with this position is that it is simply not true that mass-shootings occur only in gun free zones, or even that they occur mostly in gun-free-zones. In a study of mass-shootings between 2009 – 2015 it was found that only 13% took place in areas where the carrying of firearms was prohibited. The vast majority of mass shootings catalogued actually took place in private homes (70%) with the rest taking place in public areas where the carrying of firearms is permitted. Just a brief look at the history of mass shootings show that they have and can occur everywhere, from heavily guarded army and naval barracks to little children’s schools and there has been no, conclusively proven, link between a prohibition on guns in a given space and the likelihood of a mass-shooting occurring there. Even if we were to accept, for argument’s sake, that mass-shootings do mostly occur in gun-free-zones, would more guns really be the answer? Several studies have pointed to the fact that when confronted with a mass-shooting, humans are more likely to freeze from fear and panic than to shoot back. The fact that this response is more likely than any other is supported by the lack of cases where an individual carrying out a mass shooting has been apprehended by another individual in the vicinity with a gun. With this in mind, it seems strange to say that more guns is a sensible response to the problem.
There is also a moral argument to be made. At what point is the militarisation of public spaces simply unacceptable in a developed society? It has already been suggested that teachers should be armed in schools – if this happens and there is yet another mass shooting, will the answer then be to arm the children? Where does it stop until there is no longer an inch of space where someone is not armed? Whilst it is clear that those making enormous profits from the sale and manufacture of arms have no limits to what they deem acceptable, surely society must preserve some space where weapons of death are not permitted.
Common objections to meaningful gun reform do not stand up to careful scrutiny. Whilst these arguments are deployed with great frequency and certainty by certain people after mass-shootings, this article has demonstrated that there is both weak logical and evidential basis to support them. It is hoped that those discussing gun reform, particularly those within media circles, will engage more readily with anti-gun reform arguments in order to identify and highlight their flaws. This will make it increasingly difficult for them to be deployed as template responses in the aftermath of tragedies, which could have a decisive impact on a debate which has become very much stagnated.
In my decision to write this piece I have chosen, much like the United Kingdom in its decision to leave the European Union, to break somewhat with established convention. In contrast to the deluge of carefully structured articles that have surfaced in the aftermath of Brexit, this post will instead be a ‘thought-piece’; a stream of consciousness whose design reflects not only my mental chaos as I try to grapple with this occasion, but also the economic, political and social chaos that has gripped the country in the wake of it. In truth, it is difficult to know where to start with Brexit, some of the reasons underpinning it are as old as the UK itself, deeply rooted in a history of empire as well as in class politics. On the other hand, some of its conduits were decidedly modern and were anchored in the waters of globalisation, rapid social change and a climax of Euroscepticism carefully whipped up by far-right parties in the run-up to the vote. Whilst volumes could be written about any one of these topics, in this piece I will pick out a few of the key themes that were at the heart of the referendum and offer some of my thoughts on our European exit.
“Democracy” was the buzzword of the leave campaign, a slogan repeatedly chanted like some Vedic hymn both in the run-up to and after the EU referendum. “The EU is undemocratic” they cried, “we need our democracy back” they howled. As an initial thought, it’s strange that a negative definition is as close as we ever seem to get to the concept of democracy. In other words, whilst we seem to have a pretty good idea of what democracy is not, we have virtually no idea of what it is? We know, for example, that it is not rule by military might, nor divine right (although many believe that our monarchy contradicts this principle) but who can truly say that they know what democracy is? Philosophers and political theorists have long posited that democracy is best defined as the will of the people as expressed through their vote. That definition seems attractive at a glance and was central to leave campaigner rhetoric in the run up to the referendum, but the immediate question raised is – what if not everybody votes? It’s worth noting that only about 70% of the eligible voting population cast their vote in the EU referendum and the leave camp won by a majority of 51%. Can we really say that the ‘will of the people’ has been exercised when under 40% of the population voted in favour of Brexit? It is clear that lack of voter turnout doesn’t automatically equal lack of democracy, but as an article I read recently suggested, the fact that a vote from such a low percentage of the population on such a critical issue can carry the day can be argued to be indicative of a glaring deficiency in our democratic process and the line between deficient democracy and undemocratic is anything but clear.
Prolific African writer Chinua Achebe once argued that one of the most important aspects of democracy was an “educated, participatory followership”. I have already touched on the lack of participation surrounding the referendum, but perhaps a more troubling question is to what extent those who voted were indeed “educated” in regards to the EU before they cast their lot? Having been born and raised in Britain, I have always been alarmed at just how little the EU features in our domestic education system and despite having been through one of the country’s more rigorous secondary schooling systems, it was not until I studied law at University that I can claim to have developed any real knowledge of the history and workings of the EU. This academic deficit permeates all levels of society and many at the time of the referendum questioned whether they had sufficient knowledge of the EU or perhaps more importantly, what leaving it might mean, before they made their decision. This is not to suggest that if people had this knowledge, they would have definitely voted to remain, but a shadow is definitely cast over the democratic value of a process where many of those voting were unsure as to the subject matter of their vote.
Closely linked to the cries for a return to democracy were calls that Britain needed to exit the EU so as to ensure the “return of British sovereignty”. Sovereignty is defined as the authority of a State to govern itself and the argument was made by many leave campaigners that Britain had been sucked into the EU and was being forced to adopt any and all of its policies. We had thus effectively lost our ability to self-govern and were being “ruled from Brussels”, so the argument frequently went.
In response to this point, we need only look briefly to history which shows that whilst we may have ceded some of our decision-making power to the EU, this was entirely our own choice. When Britain joined the EU in 1975 under the Conservative Government of Edward Heath, it had been long established that joining would entail some loss of sovereignty. In 1963, more than 10 years before the UK joined, the Court of Justice of the European Union had ruled that “the [European] Community constitutes a new legal order in international law for whose benefit the states have limited their sovereign rights”. Shortly after this decision, the Court reaffirmed this position, holding that “The transfer by the States from their domestic legal system to the [European] Community legal system…carries with it a permanent limitation of their sovereign rights…” These decisions made crystal clear that any State joining the EU would be required to relinquish some of its sovereignty and it is bizarre that now, almost 50 years after nevertheless choosing to join the EU, loss of sovereignty was such a pivotal issue in the referendum. There is of course the argument that the UK were not sure of just how much sovereignty they would lose as a member of the EU but the reality is that since joining , the UK has maintained the largest share of its sovereignty as compared with any other member State. We opted out of the Schengen agreement abolishing border controls between member states, opted out of the monetary union rejecting the euro as a form of national currency, secured opt-outs for certain provisions of the EU Charter on Fundamental Rights and we also opted out of certain provisions of the EU area of freedom security and justice. This ‘a la carte’ approach to the EU can hardly be squared with the notion that the UK were helplessly accepting all of its rules and our relationship could rather be characterised as the UK holding the EU to ransom, forcing it to adopt our policies and rules.
Some have suggested that in place of our current relationship with the EU, they would like to have an agreement similar to that of Norway and Switzerland which both have single-market access but are not part of the Union. They argue that these countries have been able to retain a greater share of their sovereignty whilst still being able to reap most of the benefits of the EU. A closer look at these countries relationships with the EU however, reveals that this argument is specious. To begin with, a consequence of Norway’s non-membership in the EU has meant that whilst it has had no say in the EU’s law making process, it has nevertheless been required to adopt the majority of the EU’s legislation and has implemented all of the four freedoms including the free movement of persons – the most controversial of all freedoms in the run up to Brexit. Switzerland is in a similar situation and is required to accept the vast majority of EU Laws whilst having no say in their development. If our leaving now means that we will be forced to replicate these models, It is highly doubtful whether more sovereignty really will be the result of our Brexit as some have argued.
The issue of immigration was at the heart of the referendum. I would not go as far as to say that the other issues were tangential, but it is without doubt that the foremost reason that many people voted to leave the European Union was because it had become associated with uncontrolled, and uncontrollable, immigration. From the outset it must be noted that the very portrayal of immigration as a problem, and only a problem, in the run-up to Brexit was spurious. Immigrant communities have for centuries contributed to the enrichment of British society bringing not just culture but, perhaps more importantly, labour to the country. It was the large scale immigration from commonwealth nations at the invitation of the British Government post WWII that helped to re-build the nation and transform it from its ravaged, financially embattled state into one of the most prosperous countries in the world today. It must also be remembered that even in present times, many of our public industries are in large part dependent upon immigrant workers and that immigrants continue to make an immensely useful contribution to British society. These aspects were scarcely touched upon in the run up to the referendum, with the leave campaign choosing to focus exclusively on the problems raised by immigration and the remain campaign, concerned about the potential fallout from any talk of ‘good immigration’, happy for the most part to simply counter their assertions.
There are of course problems related to immigration within the UK however, one of the biggest obstacles to solving these issues has been terminology, with the word ‘immigrant’ being used as a ‘catch-all’ term to lump together very different groups of people. There were essentially 3 main groups that the leave campaign targeted in their bid to leave the EU: Recent EU Migrants, recent Non-EU migrants and immigrant populations already resident in the UK. In relation to EU migrants, the main issues were reported to stem from two main factors which were wage depression affecting mainly working class communities and competition for housing also mostly affecting working class communities. Whilst there is evidence that wages across some industries have fallen in recent years, there has certainly not been one cause of this and it has not been established whether EU migration was even a factor, with many citing the global recession and government austerity policies as the main driving factors behind this phenomenon. In terms of housing, again whilst EU migration may in some instances have increased tensions in this area, there is not a single answer to this question and many agree that the housing crisis in the UK has infact been the result of an epic failure of public policy by consecutive Governments who have failed to build enough houses to meet growing demand. In relation to non-EU migrants, their numbers have increased in recent years, but many who have been categorised with this label are not simply ‘migrants’ moving for potentially economic reasons, but rather are refugees, fleeing wars and persecution. I have elsewhere written about Britain’s involvement in many of these overseas conflicts and it is ironic that whilst we have contributed heavily to the international displacement of persons, we continue to lament taking some of the smallest numbers of refugees in proportion to our population than any other major European nation. The supposed ‘problem’ raised by the third class of person, immigrant communities already here, deserves special mention. Far from presenting a genuine problem for voters to consider, this argument played on prejudicial fears of immigrant communities ‘taking over’ British culture. It rested solely on racial and religious hatred and since Brexit, many who voted simply because they do not like immigrant communities and ethnic minorities have reared their heads, buoyed by feelings that their sentiments are in the majority. This has led to a sharp rise is hate crime in the UK and remains one of the more alarming legacies of Brexit.
It is not yet known what will became of the United Kingdom after Brexit. The general economic picture is reported to be bleak, and some have even predicted a constitutional crisis may be on the horizon as Scotland and Northern Ireland consider whether they will remain part of the UK in future. In my view, one of the most damaging aspects of Brexit is neither economic nor political, but rather that it sends a message to the world that despite the fact that most countries are moving ever closer together, the UK has a vein desire to move backwards; To ossify its borders whilst most are becoming more fluid and to isolate its culture whilst most are becoming more intertwined. As someone who has spent much time living abroad, I know that perhaps more than anything else, it is this image of a reactionary UK, unable to cope with change that will be the lasting legacy of Brexit and our departure is all the more dispiriting as the arguments for it rested on such feeble footing.
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.
Whenever I hear the term ‘Modern slavery’ used in British media and politics I feel an immediate and acute sense of indignation. Part of this feeling stems from the inaccuracy of the term, the other part derives from what I feel its use is consciously, or subconsciously, trying to accomplish. Regardless of any alleged justifications for it ‘Modern slavery’ is a misnomer, which attempts to deflect attention away from an issue which this country has never properly come to terms with – Britain’s role in the Transatlantic Slave Trade. Its usage should stop until this subject has begun to be addressed.
This year, Parliament passed the Modern Slavery Act which aims to strengthen efforts to tackle the growing problems of human trafficking and forced labour in the United Kingdom. Whilst the increased efforts to tackle these problems are undoubtedly commendable, the name of the Act is not. Firstly, the term ‘Modern Slavery’ is inaccurate in so far as it seeks to proscribe the same name to two very different phenomena. The Oxford English Dictionary describes slavery in reference to being a slave, and a slave as “a person who is the legal property of another (especially in the past)”. The key word in this definition is ‘legal’, as it underlines the fact that slavery has historically been a system which was supported by a nation’s laws.
There is perhaps no more quintessential example of this State-sponsored system than the Transatlantic Slave Trade, where the British (and other European powers) passed laws for their colonies in the Americas and the Caribbean which recognized slaves as property and protected the rights of masters over their newly acquired ‘property’. As Justice Roger B Taney reminds us in the seminal United States slave case of Dred Scott v Sandford:
“The opinion thus entertained and acted upon in England was naturally impressed upon the colonies they founded on this side of the Atlantic. And, accordingly, a Negro of the African race was regarded by them as an article of property, and held, and bought and sold as such…”
Whilst forced labour does describe a system where a person is forced to work for another for free, unlike slavery, it is seldom endorsed by the nation in which it takes places and is infact recognized as a crime in virtually every nation in the world except for as part of military service or as a punishment for certain offences. This is not to say that human trafficking and forced labour are not abhorrent crimes, only that they are fundamentally different to slavery.
Some may point to the word “Modern” as differentiating the concepts, however this argument is unpersuasive. The addition of the adjective ‘Modern’ seems to suggest either that it is the exact same practice, just carried out contemporarily, or that the forced labour on the rise today is in some way equivalent to the slave trade. Neither of these denotations are acceptable, as nothing about human trafficking and forced labour equals, or even mildly resembles, the State-sanctioned, State-funded and State-legitimized institution of Slavery which, in the case of the Transatlantic Slave trade, uprooted millions from their homes and sold them into perpetual bondage. The profits from this wicked trade helped shape and mould many of the advanced western nations of today and was particularly important to the development of Britain, who used the profits from its domination of the slave trade to fuel its industrial development.
The second issue that I have with the term ‘Modern Slavery’ concerns what I believe its use is trying either advertently, or inadvertently to accomplish. The Transatlantic Slave trade is not only one of the most harrowing examples of mass suffering and exploitation in human history, but also remains one of the most poorly remembered and redressed. Whilst the Church of England issued a formal apology in 2006 for its role in Slave trade, the British Government has never issued an apology for the part it played and consistently expressed its reluctance to even engage in dialogue with those looking to exhume the remains of our nation’s role in the trade. Ironically, the last time Parliament passed an act with ‘Slavery’ in its title was the Slavery Abolition Act (1833). This act, whilst finally abolishing the Slavery that the British Empire had helped establish and maintain for 400 years, provided for vast sums of compensation to be paid to slave-owners who, as a result of abolition, would be losing their ‘human property’. Slaves on the other hand, were given nothing and these decisions laid the foundations for the social and economic inequality which still plague many Caribbean nations and peoples of Caribbean descent today.
It is astonishing that whilst our Government are not even prepared to engage in the topic of their historical role in the Slave Trade which affected so many and continues to do so today, the word is permitted to be banded around in the political sphere and even given to an Act of Parliament describing what are in essence very different crimes. This is deeply insulting to those still living with the gross inequalities that slavery gave rise to and one cannot but get the impression that it is as if by using the term ‘Modern Slavery’ certain factions are attempting to erase the memory of Britain’s role in one of the clearest examples of Slavery that ever existed, The Transatlantic Slave trade.
In an astonishing recent judgment, 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 seems to invert the truth in this regard.
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 intention was to prohibit the wearing of the veil.
The Court’s suggestion that the criminal sanctions for wearing the veil are ‘the lightest possible’ is untenable. 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 pursued. It should also be noted that 150 euros, whilst perhaps a ‘light’ sanction to the members 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 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 doubtlessly humiliating 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 a sanction 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 incursions into our individual rights and freedoms would now be the organ that seeks to legitimise 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.