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.
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.
So, this is my first ever blog post and rather then dive straight into it, I thought it would be a good idea to blow off the proverbial cobwebs by giving a quick intro as to what made me start blogging and explain precisely what on earth this blog is going to be about.
The Genesis – What made me start?
I’d been thinking about starting a blog for some time, but as with so many of our ideas that seem to be buried before they’re birthed, this one, along with my scheme to setup my own charity and/or pioneer my own local ice-cream business (Whilst I realize the latter may seem ridiculous, it could still be in the offing – so don’t judge) had managed to seamlessly slide its way onto my back-burner, well guarded by a detail of distractions and excuses. Instead of just sitting down, figuring out how to set up a blog and starting to write, I found myself reciting the fatal, yet frequently rehearsed mantras of, “you’ve got too much work”, “you’ve got no time”, that seemed to scotch the mere thought that I might begin to write at some point in the future. This cycle of procrastination and self-defeatism continued for many months until recently, I stumbled across a quote by the renowned American Author H. Jackson Brown Jr which inspired me as I thought about its truth and power. Jackson Brown was once quoted as saying:
“Don’t say you don’t have enough time. You have exactly the same number of hours per day that were given to Helen Keller, Pasteur, Michelangelo, Mother Teresa, Leonardo da Vinci, Thomas Jefferson, and Albert Einstein”.
Whilst I realise Brown’s use of revered figures like Leonardo Da Vinci and Albert Einstein, could be used to argue that there are but few among us that have scaled the heights of greatness – this, would quite clearly miss the point. Whilst there are certainly a limited number of individuals that society venerates, the point is that these people, had the exact same time-constraints that the average person, including myself, bemoans and yet they were able to find a way not only to accomplish great things, but to accomplish a great MANY things in their short and tumultuous lives.
This is the case not just with venerated geniuses, but with normal people too. Recently, whilst reading an article on Idris Elba, I discovered that as well as being an award winning series and film actor, he is also a music producer, DJ and singer. If a pretty regular guy like Idris, living in our times, breathing our same air, can manage to not only do all these things, but also to do them to such a high level, then why can’t we?? This question swiftly transformed into why DON’T we? As I realised that our lamented ‘lack of time’ must simply be the result of our attitudes, commitments and priorities. I would say that if we can only change these, then we’ll have enough hours in the day to achieve everything we want and more.
So I cut the crap and wrote my first blog post. I’m hoping blogging can become a major part of my life in future, but for now it’s clearly just important to start!
Life Law and other things – What’s in a name?
So the name of my blog, ‘Life Law & other things’ basically reflects the content that I’m going to be posting up here every week. The blog will be composed of 3 sections, and each week I’ll write a post from a different section on a particular topic area.
The LIFE posts, will reflect on a topic to do with our every day lives. This could be about confidence, happiness, organization, family etc.
The LAW posts will revolve around my passion for law, and every week I’ll try to provide some legal analysis of a current situation to do with the law with a particular focus on Human Rights.
The OTHER THINGS section will, as the name suggests, pretty much deal with whatever issues pop into my head, these might involve temporary political issues, travelling etc…I might even write a couple of posts in French from time to time so look out for those!
I’ll also occasionally be taking contributions from other up and coming bloggers so get in contact with me if you might like to contribute – would be good to have some different inputs from time to time.
Anyway, that pretty much completes my intro, stay tuned for my first blog entitled ‘The Confidence-Deception’ from the Life section, coming soon!