Brexit and Right-Wing Euroscepticism in the European Parliament

[This post is by Gilsun Jeong (Doctoral Researcher in Politics at Sussex). It was originally published at Queen Mary University of London’s NEXTEUK blog (part of the NEXTEUK Jean Monnet Centre of Excellence, co-funded with the support of the Erasmus+ Programme of the European Union). Republished with permission.]

The UK’s withdrawal from the EU means that one of the major right-wing Eurosceptic voices left the European Parliament. In this blog, Gilsun Jeong discusses the possible changes in the nature of the European Parliament’s Eurosceptic right-wing bloc in a post-Brexit era and their impact on European integration in the longer term.

Written by Gilsun Jeong, PhD Candidate at the Department of Politics, University of Sussex.

This blog is part of a policy report called “NEXTEUK – EU and UK Relations: Where will we be in 2031?”.

Published:

25 April 2022

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The UK’s withdrawal from the EU means that one of the major right-wing Eurosceptic voices left the European Parliament (EP). The British Conservatives party and the UK Independence Party (UKIP) played a vital role in pan-European cooperation among the Eurosceptic right-wing in the Parliament (Leruth et al., 2018). In the meantime, the presence of the right-wing Eurosceptic bloc in the EP – the Identity and Democracy (ID) group and the European Conservatives and Reformists (ECR) group – has remained unchanged on the whole. The bloc’s relative size has slightly increased from 18.1% to 19% in the Parliament in a post-Brexit era (Figure 1). Moreover, unlike the Conservatives and UKIP, the right-wing Eurosceptic bloc has opted for moderation rather than radicalisation. This thus means that the EP’s right-wing Eurosceptics has become more Soft Eurosceptic after the UK’s departure. In the light of this, this short piece aims to discuss the possible changes in the nature of the EP’s Eurosceptic right-wing bloc in a post-Brexit era and their impact on European integration in the longer term.

Figure 1. Composition of the 2019-24 European Parliament

Composition of the 2019-2024 EP.

Transnational political groups in the EP are now working entities rather than loose affiliations of like-minded parties, and pan-EU cooperation has become apparent among right-wing Eurosceptic parties within the context of the Parliament in the Post-Maastricht Union (Holmes, 2017). The Conservatives and UKIP played an important role in organizing right-wing Euroscepticism within the EP’s group structure (Whitaker and Lynch, 2014). The Conservatives left the European People’s Party-European Democrats (EPP-ED) group to form the ECR together with the Polish Law and Justice (PiS) following the 2009 EP elections. UKIP led the Independence/ Democracy (IND/DEM) group – a right-wing Eurosceptic group – in the 6th EP and formed the Europe of Freedom and Democracy (EFD) following the 2009 EP elections together with the Italian League (LSP).

It is noteworthy that the withdrawal of the UK has not weakened the right-wing political groups in the 9th EP as most of the British Eurosceptics had no affiliation with them. Rather, the seat redistribution after Brexit has slightly strengthened the ID’s standing in the EP as they gained 3 more seats. Currently, PiS is the largest national delegation in the ECR with 24 MEPs and leads the Group together with the Brothers of Italy party (FdI). The League with 28 MEPs leads the ID and is the largest delegation in the Group. The party forms a large majority in the Group together with the French National Rally (RN).

Eurosceptic political parties gained momentum to expand their presence in the 2014 EP elections which were held before Brexit (Hobolt, 2016). While the presence of Eurosceptics in the Parliament has remained unchanged on the whole, the first EP elections after the Brexit referendum (the 2019 elections) have clearly changed the attributes of Eurosceptics compared to the 8th term (Brack, 2020). There has been a big shift to the right, and the current strength of Euroscepticism is ‘clearly unbalanced with a stronger right-wing Euroscepticism’ (Taggart, 2020: 223).

Moreover, Hard Euroscepticism has become a marginal force in the 9th EP. Even though Brexit made the Hard version of Euroscepticism (withdrawal from the EU) a more viable political project for Eurosceptic parties, right-wing Eurosceptics largely have moderated their oppositional attitudes towards European integration and advocated for a deep reform of the EU political system (Soft Euroscepticism) instead of leaving the Union (Brack, 2020). On the whole, none of the largest right-wing Eurosceptic parties in the 9th EP can be considered as Hard Eurosceptic. Therefore, the right-wing Eurosceptic bloc in the 9th Parliament has become more Soft Eurosceptic after the UK’s departure from the EU.

The rise of Euroscepticism in the 8th Parliament has pressured mainstream groups to choose between excluding and cooperating with Eurosceptics for the EP’s legislative work (Ripoll Servent, 2019). Even though Hard Eurosceptics are more likely to be excluded from the process of coalition formation, mainstream groups appear to engage with Soft Eurosceptics when they are internally divided during the 8th term (Ripoll Servant and Panning, 2021). The results of the 2019 EP elections again showed that EU citizens turned back from traditional political families and voted for parties with a reformist message on the EU (Brack, 2020). As a consequence, the Parliament has become more fragmented and polarised, and the rise in non-mainstream parties marked ‘the end of the long-lasting grand coalition’ (Ripoll Servent and Panning, 2021: 72). These circumstances incentivise right-wing Eurosceptic parties – that have become more Soft Eurosceptic compared to the previous term – to better organise themselves to obtain more political leverage in the current fragmented Parliament.

This also explains why Viktor Orban held talks with the League’s Salvini and PiS’s Morawiecki on a new right-wing political alliance in the Parliament following Fidesz’s Exit from the European People’s Party. In the short term, Fidesz’s new affiliation with a right-wing Eurosceptic group could impact upon the political balance in the Parliament. Orban’s Fidesz is currently non-attached, and this status has significantly decreased the party’s standing in the Parliament (Zsiros and Liboreiro, 2021). Political groups in the Parliament are given the resources and the opportunity for gaining influential committee positions and rapporteurships in proportion to group size (Whitaker and Lynch, 2014). Fidesz thus may be attracted to European political groups for pragmatic reasons along with the intention to obtain more political leverage in the Parliament. However, it is unlikely to see a new right-wing political alliance emerging in the 9th EP term.

In the longer-term, we may witness more attempts to reform the EU in a more inter-governmentalist Soft Eurosceptic direction in the EP’s right-wing Eurosceptic bloc. The Brexit referendum has made withdrawal from the EU into a viable political option. However, the EP’s right-wing Eurosceptic bloc has opted for moderation instead of radicalisation. They have become more embedded in the EU’s political system since the referendum. Moreover, if the right-wing Eurosceptics gain more momentum to expand their presence in the next EP elections, it will be possible to see a bigger and better organised right-wing Eurosceptic bloc in the Parliament by 2031. This also means that it is entirely possible that mainstream groups increasingly cooperate with right-wing Eurosceptics for legislative work in a more fragmented parliament, which would further alter the future trajectory of European integration.

References

Brack, N. (2020) ‘Towards a Unified Anti-Europe Narrative on the Right and Left? The Challenge of Euroscepticism in the 2019 European Elections’, Research & Politics, 7(2), pp. 1-8.

Hobolt, S. B. and de Vries, C. (2016) ‘Turning against the Union? The Impact of the Crisis on the Eurosceptic Vote in the 2014 European Parliament Elections’, Electoral Studies 44, pp. 504–14.

Holmes, M. ‘Contesting integration: The Radical Left and Euroscepticism’ In Euroscepticism as a Transnational and Pan-European Phenomenon, edited by John FitzGibbon, Benjamin Leruth and Nick Startin, 63-79. New York: Routledge, 2017.

Hopkins, V., Shotter, J. and Ghiglione, D 2021, ‘Orban plots new populist alliance for European parliament’, Financial Times, 2 April, viewed 18 August 2021, <https://www.ft.com/content/e7ab3009-94ae-465f-8e03-517d3f4e7d2c>.

Leruth, Benjamin, Nicholas Startin, and Simon Usherwood. “Defining Euroscepticism: from a broad concept to a field of study” In The Routledge Handbook of Euroscepticism, edited by Benjamin Leruth, Nicholas Startin and Simon Usherwood, 3-10. Oxfordshire: Routledge, 2018.

Ripoll Servent, A. (2019) ‘The European Parliament after the 2019 Elections: Testing the Boundaries of the ‘Cordon Sanitaire.’’, Journal of Contemporary European Research, 15(4), pp. 331-42.

Ripoll Servent, A. and Panning, L. (2021) ‘Engaging the Disengaged? Explaining the Participation of Eurosceptic MEPs in Trilogue Negotiations’, Journal of European Public Policy, 28(1), pp. 72–92.

Taggart, Paul. “Failing the European Rorschach Test? European Integration and Euroscepticisms” In Euroscepticisms: the Historical Roots of a Political Challenge, edited by Mark Gilbert and Daniele Pasquinucci, 222-229. Leiden: Brill, 2020.

Whitaker, R. and Lynch, P. (2014) ‘Understanding the Formation and Actions of Eurosceptic Groups in the European Parliament: Pragmatism, Principles and Publicity’, Government and Opposition, 49(2), pp. 232-63.

Zsiros, S 2021, ‘European right-wing populists join forces to rally against EU’s direction’, Euronews, 5 July, viewed 18 August 2021, <https://www.euronews.com/2021/07/05/european-right-wing-populists-join-forces-to-rally-against-eu-s-direction>.

Photo credits: nambitomo / iStock.

Demystifying journal publication: Thoughts for earlier career and interdisciplinary scholars

Photo of Matthew Evans
Matthew Evans

This piece is by Matthew Evans (Senior Lecturer in Law, Politics and Sociology at Sussex and Visiting Researcher in Political Studies at the University of the Witwatersrand, Johannesburg – and editor of this blog). It discusses questions and dilemmas about publishing research in journals based on questions from an interdisciplinary early career scholar based in a law school.

Introduction

This piece began life some time ago as an email conversation with Hannah Blitzer (now a PhD candidate in Law at Sussex). At the time, Hannah had just completed her LLM in International Human Rights Law with a dissertation entitled ‘False dichotomies in human rights: finding common ground between human rights of farmers, consumers and a healthy environment’, and asked for some advice on the possibility of publishing a journal article based on her dissertation (which I had supervised). Realising Hannah’s questions are likely to be relevant to others delving into the world of journal submissions as early career scholars (especially those in interdisciplinary areas), I have edited and updated my responses in the hope they are of use to a wider audience.

First, a note of caution: everyone’s circumstances and priorities are different and not all advice is appropriate for everyone all the time. These are just my reflections, it’s OK to ignore them – other opinions are available!

Questions

Hannah’s first question was simply where to begin given journals all have different word limits. This then led into further questions. In particular, whilst situated within a law school, Hannah’s research is interdisciplinary, covering human rights, political ecology and social theory, among other areas, which presents particular dilemmas for scholars including with regard to where to submit research for publication (I have written about this previously).

Hannah noted that she was considering the Human Rights Law Review and other human rights journals, but that some of these seem less theoretical than others so may be less appropriate for her research. She also wondered if other law journals might be appropriate, naming Modern Law Review, Social & Legal Studies, the Journal of Law and Society, Law & Policy and the Oxford Journal of Legal Studies, or if a politics or political ecology journal like Capitalism Nature Socialism – or an interdisciplinary journal – might also be worth considering.

My responses to these questions cover, first, issues relating to publication venue, then issues relating to the publication process, before a final summing up.

Publication venues

With regard to publication venues, there are a few factors to consider.

All the journals Hannah identified could be fine and it isn’t necessarily the case that one or another journal is inherently a better place to try to publish. However, researchers (like Hannah) might want to consider some of the following:

  • What debates are you intervening in and where are these debates taking place in print? You might think about which journals published the research that you cite heavily or in important parts of your argument.
  • What audience do you want to reach? For instance, is it more important for you to reach a human rights audience, or a general law audience, or an audience more familiar with the other aspects of the study in terms of theory, methods and case study? You might find that you cite a lot of work in (say) Capitalism Nature Socialism on natural capital perhaps, in which case you might want to try there – but, if you think it is particularly important to take these debates to a human rights audience then you might instead prefer to pitch the article to a human rights journal even though you might significantly draw on other areas. (Much the same applies if replacing these example topics, fields/subfields and journals with others).
  • Which discipline/s are you aiming to contribute to? For instance, if you decide to pitch to a human rights audience, do you particularly want to focus on human rights law journals rather than more interdisciplinary journals (such as the International Journal of Human Rights rather than Human Rights Law Review)? If you are aiming for a law audience, do you want to focus on general law journals (like Modern Law Review and the Oxford Journal of Legal Studies) or more specific socio-legal journals (like Social & Legal Studies and the Journal of Law and Society) or legal theory journals (like Legal Theory or Law and Critique – which focuses on critical legal theory), or a more specialised area of law like human rights law or environmental law?
  • How long is the ‘natural’ length of this study and how does it compare to the expected lengths of articles in the target journals? For instance, if you revise a dissertation (or write from scratch) and end up with 14-15000 words you’re happy with then you might want to avoid journals with a maximum article length of 8000 words – or, on the other hand, if you cut a dissertation down to 7-8000 words you may not want to try a journal which expects articles to be 12k+.
  • To help with the above, have a look at the aims and scope, and submission guidelines for journals you are considering.
  • Also, avoid predatory journals. As a rough rule of thumb, if you haven’t heard of it, don’t publish in it – and don’t pay to publish.[1]

The publication process

Once you have selected a first-choice journal it is often worth considering a second- (and maybe third- and fourth-) choice as well. This is because journal publication is competitive, and prestigious journals will reject most submissions for various reasons. Things to bear in mind at this stage are:

  • It is rare to have an article accepted straight from submission without any revisions, especially for new authors (I have never had this happen).
  • More likely is one of these outcomes…
    • Desk rejection – this is when an editor decides to reject your article without sending it for review. Usually this is because the editor views the article as not meeting the aims and scope of the journal, which may be in terms of subject matter (e.g. too little theory for a theory journal or too little link to human rights for a human rights journal), something more procedural (e.g. exceeding the maximum length of articles) or something a little more nebulous like not being sufficiently ‘original’ to warrant publication in a journal focused on the ‘best’ and ‘most cutting edge’ research. Importantly, a desk rejection does not mean the article is unpublishable anywhere (I have published some pieces which were desk rejected multiple times) and editors will usually provide reasons which might help in selecting the next choice journal (e.g. maybe not another theory journal if the piece is not theory-heavy enough for them) and/or making some revisions. The one silver-lining of desk rejections is that they are usually quite fast.
    • Reject after review – based on reviewers’ reports, editors decide not to publish the article. You should get the reviewers’ and editors’ feedback so can use this to revise the piece before sending to another journal.
    • Revise and Resubmit (R&R) – this is when the article has been reviewed and based on the reviews the editors don’t want to publish the article in its current form but will consider a substantially revised version taking account of the reviewers’ recommended changes. This is a good outcome that usually leads to publication eventually, though there may be further rounds of revision after resubmission.
    • Accept subject to revisions – when, based on the reviewers’ reports, editors are happy to publish the piece subject to some revisions (some journals distinguish between major and minor revisions, and at others major revisions and R&R are the same thing). Minor revisions might be as simple as making sure spelling and formatting is in line with the style guide (but may be more), whereas major revisions could require some sections to be substantially rethought for instance. This is a very good outcome and all but guarantees publication, just as long as you make the recommended changes (or persuasively explain to the editors why some – not all – could not be done or would be inappropriate).
  • The more prestigious a journal, the more likely it is to take a long time to get back to you and the more likely it is to reject an article (especially on vague ‘not innovative enough’ type grounds). Similarly, the wider the range of topics covered, the more likely that there will be a huge number of submissions (if the journal is well-known) across a range of topics which might make it more likely for any given piece to be rejected, though conversely more specialist journals may place more emphasis on clearly demonstrating developments within their niche area than a more general journal might (e.g. a journal which publishes a lot on natural capital might need a clearer explanation of how a piece develops this, whereas a journal which has never published on this might find application of the concept to their area – law, human rights etc. – sufficiently interesting without further explanation).
  • Whilst I would take journal rankings etc. with a pinch of salt, it is still useful to have a sense of where your target journals fall on a rough scale of prestige to avoid either getting accepted quickly to a less ‘good’ journal when you might have preferred to try a ‘better’ journal – and maybe get accepted – first, or following up a rejection from a prestigious journal with submitting to a similarly or even more prestigious journal which is likely (though not certain) to reject the piece again on similar grounds.
    • Modern Law Review is frequently considered one of the top general law journals. Oxford Journal of Legal Studies is also considered to be very prestigious.
    • Social & Legal Studies and the Journal of Law and Society are two of the most well-known socio-legal journals but I would say they are overall considered easier to publish in than Modern Law Review.
    • Human Rights Quarterly is widely considered the top human rights journal.
    • It’s much more difficult to say with more specialised and interdisciplinary journals though since often there may only be one well-known journal in a small area for instance, which can make rankings unhelpful as a low-ranking journal may be very popular, prestigious and difficult to get published in for that small niche.
  • Finally, academic publishing is very slow – if you get an article published within a year of initial submission you’ve done pretty well.

Wrapping up

If there is an overarching takeaway point from the discussion here, it is to make sure you know the reasons for doing things the way you are, and to be prepared for the possibility – even likelihood – of some long waits and rejections as a normal part of the publication process. This doesn’t cover every aspect of journal publication, even for law school-based interdisciplinary researchers, but hopefully it is of some use in demystifying the process! Moreover, there are a huge number of blogs, articles and so on which researchers can look into alongside this piece for further – and alternative – advice.


[1] This can get complicated – whether a journal is ‘predatory’ or ‘flaky’ may not always be clear-cut and definitions vary, plus many ‘good’ journals charge for publishing open access, though I would still avoid this if payment is coming out of my own pocket as opposed to a research grant or university fund.

How will the war in Ukraine affect Polish politics?

[This post is by Aleks Szczerbiak (Professor of Politics at Sussex). Republished with permission from The Polish Politics Blog.]

by Aleks Szczerbiak

Poland’s raised international profile as a key regional diplomatic and military player, together with the tendency for citizens to rally around political leaders at a time of national crisis, are likely to boost support for the country’s right-wing ruling party. Although this ‘rally effect’ will subside, and foreign policy issues are rarely decisive in determining election outcomes, this particular conflict could leave a more long-lasting domestic political footprint, making national security questions much more salient.

Consolidating support for the ruling party

Russia’s invasion of Ukraine raises a whole series of huge diplomatic, economic, security and humanitarian challenges for Poland. These include: further increases in the price of energy and raw materials that will push-up inflation, already at its highest level for more than twenty years; the economic knock-on effects of Western sanctions; and a potentially huge refugee crisis, with estimates that more than one million Ukrainians could flee to Poland to escape the armed conflict. Although it remains ahead in opinion polls, the right-wing Law and Justice (PiS) grouping, Poland’s ruling party since autumn 2015, has lost support over the last eighteen months as it faced an accumulation of political difficulties. These have included: the coronavirus pandemic crisis, ongoing ‘rule of law’ disputes with the EU political establishment, infighting within the governing camp, and rising costs of living.

However, the war in Ukraine has now completely overshadowed all of these issues and is likely to consolidate support for Law and Justice. The ruling party will probably benefit from what political scientists call the ‘rally effect’: an inevitable psychological tendency for worried citizens to unite around their political leaders and institutions as the embodiment of national unity when they feel that their country faces a dramatic crisis or external threat. It is too early to tell how significant, or long-lasting, a boost for Law and Justice the crisis might provide. But there were already some indications that the party’s polling numbers had started to tick up, even before the outbreak of armed hostilities. According to the ‘E-wybory’ website, which aggregates voting intention surveys, Law and Justice averaged 34% opinion poll support in February – an increase of 3% compared to January, although still well short of the 40% average that it enjoyed until autumn 2020, and which would allow the party to secure an outright parliamentary majority.

Warsaw’s raised international profile

Law and Justice argues that it has taken a series of measures to make Poland more militarily self-sufficient. The latest of these is the so-called ‘homeland defence law’ (ustawa o obronie ojczyzny) which, if approved by parliament, will accelerate the pace of increased defence spending and double the size of the Polish armed forces. However, much of the media spotlight has focused on the government’s international role in trying to resolve the crisis. This has provided Warsaw with an opportunity to raise its diplomatic and military profile as a key strategic regional player. Given Poland’s critical geographical location, and the fact that it is NATO’s largest member and top defence spender in the region, the country plays a pivotal role in the alliance’s security relationship with Moscow.

The Polish government and Law and Justice-backed President Andrzej Duda have been at the forefront of efforts to persuade the Western international community to develop a common, robust response to what they always saw as Russian President Vladimir Putin’s neo-imperialist de-stabilisation of the region, and specifically to ensure that sanctions on Moscow were maintained and extended. Law and Justice has, for a long time, criticised Germany and other Western powers for their over-conciliatory approach towards developing economic and diplomatic relations with Moscow over the heads of their European allies. This was exemplified by the controversial ‘Nord Stream 2’ gas pipeline, which runs directly from Russia to Germany across the bed of the Baltic Sea by-passing Poland and Ukraine; and which Berlin has now belatedly suspended approval of. Indeed, some observers argued that pressure from the Polish government, and specifically prime minister Mateusz Morawiecki, played a pivotal role in persuading Germany to make an abrupt change of course after the invasion started by agreeing to reverse its historical non-intervention policy and send weapons to Ukraine, as well to increase defence spending to over 2% of the country’s GDP (a level considered a minimum by NATO), and block Russian access to the ‘Swift’ international payments system (having initially opposed such tough economic sanctions).

The crisis has also been an opportunity to improve Warsaw’s fraught relations with the US Biden administration. Law and Justice enjoyed very strong ties with Joe Biden’s predecessor Donald Trump, whom it came to see as a conservative ideological soulmate. This, together with Mr Biden’s pivot back to developing stronger ties with the EU political establishment (especially Germany), made it considerably more difficult for Warsaw to pursue its international policy agenda. However, Polish-US relations already started to improve last December when Mr Duda vetoed a controversial media law that the USA felt threatened the commercial interests of the American-owned Polish TVN broadcaster, which takes a strongly anti-Law and Justice editorial line. Now Poland has become the main destination for new US troops arriving in the region since January to strengthen NATO’s Eastern flank. The Biden Administration also announced a $6 billion weapons sale to Warsaw, which included 250 M1 Abrams tanks.

A tricky situation for the opposition

At the same time, the opposition parties lack the instruments to exert any real influence at the international level, and, for the sake of national unity, have largely refrained from criticising the government overtly, for the moment at least. Moreover, all the main Polish political groupings share the goal of strengthening Ukraine’s pro-Western orientation and countering Russian expansionism. Eastern policy has generally emerged in the context of domestic politics as a so-called ‘valence’ issue: where parties agree on overall objectives but compete over which of them is the most competent to deliver on these shared goals.

However, while agreeing with the government’s assessments of Russia’s actions and the potential threat that they pose to Polish national security, some sections of the opposition have tried to develop talking points critical of Law and Justice. For example, the liberal-centrist Civic Platform (PO) – the country’s governing party between 2007-14 and currently the main opposition grouping – called upon Law and Justice to end its conflict with the EU political establishment over ‘rule of law’ issues as quickly as possible, by abandoning its controversial judicial reforms. Law and Justice has been in an ongoing dispute with the EU institutions who agree with the criticisms levelled by Poland’s legal establishment and most opposition parties that these reforms undermine judicial independence and threaten the key democratic principle of the constitutional separation of powers. Civic Platform has argued that Law and Justice’s conflict with the EU political establishment undermined national security by weakening Poland’s anchoring in the West and efforts to build alliances within Europe. The Ukrainian conflict, they said, also highlighted the fact that the main threat to Poland came from Moscow not Brussels or Berlin.

The government’s supporters countered that raising the ‘rule of law’ dispute at this time made Civic Platform’s appeals for national unity appear hollow, particularly as the opposition party also implied an equivalence between Law and Justice’s reforms and the lack of judicial independence in Russia. Moreover, Law and Justice rejected the opposition’s critique of its reforms arguing that, following Poland’s flawed transition to democracy in 1989, the judiciary, like many key Polish institutions, was expropriated by and represented the interests of an extremely well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy. Law and Justice’s supporters also argued that the EU political establishment had used the ‘rule of law’ issue as a pretext and that the root of the conflict stemmed from the fact that the Polish government had, they said, adopted a more robust and assertive approach towards defending and advancing the country’s national identity and interests within the EU.

At the same time, however, over the last few weeks the Law and Justice government and Mr Duda have been making a concerted effort to de-escalate the dispute with Brussels. This was mainly to secure Polish access to EU funds that the Commission is blocking, but also to help the West present a united front in the face of Russian aggression in Ukraine. Moreover, by raising the ‘rule of law’ issue, the opposition mis-read the national mood which, for the moment at least, seems to want its political leaders to focus solely on the Ukrainian crisis and put other contentious issues to one side.

Disputes over international party links

Previously, opposition parties also strongly criticised attempts by Law and Justice to develop links with right-wing Eurosceptic parties that have enjoyed close ties with Moscow, such as Marine Le Pen’s French ‘National Rally’ and the Hungarian ‘Fidesz’ grouping led by Viktor Orban, the ruling party’s closest EU ally. For example, in January Civic Platform leader Donald Tusk, a former European Council President and Polish prime minister between 2007-14, criticised Mr Morawiecki for attending a summit meeting in Madrid involving these and other parties, which he described as ‘a facto meeting of the anti-Ukrainian international’. Law and Justice countered by acknowledging that these parties sometimes had a different view of Moscow to Poland, but also pointing out that the Madrid summit’s final declaration unequivocally condemned Russian military operations on Ukraine’s border (although the version posted on Ms Le Pen’s website apparently made no mention of this).

Law and Justice also argued that, in terms of practical policy preferences, the parties represented at the Madrid summit were no more pro-Moscow than many European centre-right and centre-left parties with whom the Polish opposition was closely allied and whose leaders often had business interests in, and close economic ties with, Russia. Indeed, immediately prior to the Russian invasion, Mr Morawiecki called upon Mr Tusk to resign as president of the centre-right European People’s Party (EPP) transnational federation, which he dubbed the ‘Nord Stream 2 party’ due to the critical role played by the German Christian Democrats (the grouping’s leading member) in the development of the controversial Russo-German pipeline.

Leaving a lasting political footprint?

The Russian invasion of Ukraine has completely dominated political debate in Poland overshadowing all other issues. In addition to benefiting from the ‘rally effect’, Law and Justice has been able to portray Warsaw as a key regional player while the opposition has no instruments to exert any real international influence. Politicians are also acutely aware that most Poles feel that traditional partisan political divides pale into insignificance when the country faces such a major geopolitical security threat. Given this overwhelming imperative for national unity, for the moment at least disputes over the Law and Justice’s ‘rule of law’ conflict and other previously salient domestic political issues are on the back-burner. The same is true of disputes over the two main parties’ international links which, until just before the Russian invasion, were also a source of bitter political disagreement.

Nonetheless, in spite of the displays of national unity, political calculations are obviously still being made behind-the-scenes and all of these issues are certain to re-surface when Poland starts to return to more ‘normal’ patterns of political contestation. In the longer-term, although the Ukrainian conflict will clearly have major geopolitical effects, it is unclear how long-lasting the domestic political impacts will be. At some point the ‘rally effect’ will wear off, the next parliamentary poll is not scheduled until autumn 2023, and foreign policy issues are rarely decisive (or even particularly salient) in determining election outcomes. However, this particular conflict is likely to leave a more lasting political footprint given its profound geopolitical impacts, economic knock-on effects, and refugee crisis that it is likely to trigger. At the very least, security issues, both military and non-military, are likely to remain high on the Polish political agenda for the foreseeable future.

Mob on the Loose: A Dishonourable Interplay of Honour and Lynching

Photo of Ritabrata Roy
Ritabrata Roy

This post is by Ritabrata Roy (Doctoral Researcher at Sussex Law School). The piece discusses the phenomenon of mob lynching in India and makes the case for considering this as a form of ‘honour’ crime, as well as suggesting legal reforms to address this.

‘It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that’s pretty important.’

Martin Luther King Jr.

1. INTRODUCTION

In recent years, India has witnessed a significant rise in the cases of mob lynching, particularly, upon the religious minorities of the country. Reports suggest that this method of violence has garnered approval among the masses in the sub-continent, especially in the wake of recent events of communal violence, nationwide. Moreover, 2018 recorded the largest number of mob lynching cases between the years 2015-19. Concerned by the alarming rise in these incidents, the same year, the Supreme Court of India prescribed some strict guidelines to curb the menace of mob lynching.

The core issue of this study is to analyse the elements of patriarchal community honour which is arguably one of the primary motivations behind the phenomenon. In my study, I draw upon the argument that most of the cases of mob lynching in India are violent manifestations of the so-called ‘protection’ of family or community ‘honour’ which effectively brings them within the broader ambit of honour crimes or honour-based violence (HBV).

I will argue that mob lynching is a specific category of honour crimes, and thereby, will make a case for implementing the 242nd Report of the Law Commission of India towards enacting a specific provision on honour crimes within the Indian Penal Code 1860. Such a provision, in my opinion, should encompass the subject of mob lynching by mainly focussing on the honour based motivations of the crime. I further believe that such a comprehensive enactment will be a commendable step towards implementation of the Supreme Court’s guidelines in the Tehseen Poonawalla judgment.

2. INCIDENTS OF MOB LYNCHING AND THE TEHSEEN POONAWALLA GUIDELINES

2.1. The cases

The usage of mob lynching as a form of so-called ‘retributive justice’ in the eyes of certain sections of the society is not an alien concept to the Indian subcontinent. However, in my opinion, the disconcerting reality that needs to be highlighted here is the sharp increase in the number of cases, especially in the last five years. The sheer magnitude of brutality involved therein, and indifference of the legislature and executive to the malady, has compelled the civil society and the judiciary alike to rethink the measures to curb these incidents.

It is imperative to mention a few of recent gruesome incidents of mob lynching that shook the moral conscience of the country.

First, the Shahrukh Khan Case, In this case, a 20-year-old man was lynched by an angry mob on the suspicion of trying to steal a buffalo. The incident happened in the state of Uttar Pradesh on 29 August, 2018.

About a year later, on 18 June, 2019 a similar incident from the state of Jharkhand came to the forefront. In this incident, known as the Tabrez Ansari case, a young man who was alleged to have stolen a motorcycle was lynched by a mob. The victim died on June 22nd, four days after the incident. The video evidence of the incident revealed that the mob had forced the victim to chant some slogans of the dominant religious community in India, thereby communalizing the incident.

Several other incidents of mob violence were reported in different parts of the country. One was the Beena Devi case from the state of Uttar Pradesh, where a 50-year-old woman was brutally attacked on suspicions of kidnapping, on 26 August, 2019. The state of West Bengal reported an incident on 26 July, 2019 where a Muslim boy, Faiz, was beaten to death by the family of a tribal girl, who was in a relationship with the deceased.

Interestingly, these cases predominantly reflect a pattern of targeted violence against particular communities based upon caste or religion. Inter-caste or inter-religious associations in India are largely perceived as a dishonourable act. Such actions are often treated as insult to the entire community and may potentially incite mob violence by the entire community as seen in these cases mentioned above.

2.2. Major characteristics of the Tehseen Poonawalla guidelines

In the wake of these incidents, social activist Tehseen Poonawalla and Tushar Gandhi moved to the Supreme Court of India in 2018, seeking judicial interference to curb the magnitude of the growing menace. A landmark judgment was pronounced by a three-judge bench. Expressing grave concerns, the bench called for a complete overhaul of the law enforcement system to this regard.

The guidelines suggest creation of a special task force (STF) to procure intelligence reports on subjects likely to commit or incite such offences. Further, the Director General of Police and Secretary of Home Department of the States were directed to take regular meetings at least once a quarter with all nodal officers and State Police Intelligence Heads. Regular police patrolling was also suggested as a complementing method to provide the necessary intelligence on the subject to STF.

With regards to the legislative methods, the court recommended Parliament enact a specific legislation directed towards the offence of mob lynching with adequate punishment for the offence.

2.3. Critically analysing the guidelines

Previous studies have revealed complex discrepancies in these guidelines from both policy-making and implementation standpoints. However, the most striking feature that sticks out as a sore thumb is the prolific use of open-ended terminologies throughout the guidelines. It appears that the court has not restricted the applicability of the guidelines only to the phenomenon of mob lynching. While making an observation regarding the nature and motivations behind these crimes, Mishra, CJ, remarked,

Lynching is an affront to the rule of law and to the exalted values of the Constitution itself… These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. …

Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror. Extra judicial elements and non-State actors cannot be allowed to take the place of law or the law enforcing agency. A fabricated identity with bigoted approach sans acceptance of plurality and diversity results in provocative sentiments and display of reactionary retributive attitude transforming itself into dehumanisation of human beings.

From the above pronouncement, it seems clear that the court did not specifically identify the nature of violence that they had addressed through these guidelines. The court directions reflected on a broader paradigm of offences that the guidelines sought to address such as ‘cow vigilantism’, ‘targeted violence’, ‘hate crimes’, ‘mob violence or lynching’ and so on.

The impugned guidelines provide for an excellent opportunity to comprehensively implement the guidelines on honour crimes proposed by the 242nd Report of the Law Commission of India, along with the guidelines given in the Shakti Vahini v. Union of India and Ors. However, for doing that, firstly, we need to characterize certain kinds of mob lynching as manifestations of honour crimes. In the forthcoming sections, I will categorize the acts of mob lynching as a specific form of honour crimes. Thereafter, I will make a case for comprehensive implementations of the aforementioned recommendations and guidelines.

3. MOB LYNCHING: A SPECIFIC FORM OF HONOUR CRIMES

It is important at the outset to accentuate the different kinds of mob lynching discussed in the previous section and reflect on varied motivations behind these violent acts. Out of the four discussed instances, three of them had communal connotation, while one was rather a manifestation of discontentment with the existing law and order system. A recent study has claimed that the majority of the mob lynching acts since 2015 are motivated by communal disharmony. In these cases, the victims mostly belonged to the minority communities, reflecting a larger communal disharmony and hegemony of the majority religion, further leading to crimes motivated by so-called protection of community honour.

Here, I will argue for giving a broad interpretation of the term ‘honour’. However, to elaborate this claim further, let me first critically discuss the concept of honour crimes, particularly from a motivational aspect.

3.1. Honour Crimes: Concept and Motivations

Honour crimes are commonly defined as, ‘acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonour upon the family.’ Mainstream literature on the subject has reflected upon the nature of the ‘honour’ involved in these crimes, as patriarchal community or family honour. Discussing this point, Phyllis Chesler has observed that, a family/community honour is often associated with the chastity/purity of a woman. Therefore, ‘female chastity and fertility is considered a family-owned asset that no individual woman dares to claim as her own.’

Safia Heidi rightly summarized, it is the collective patriarchal community honour that is usually borne by the women of the community. Even the slightest perceived taint to such honour is washed away with retributive violent retaliations such as killing of the victim and other forms of honour violence.

3.2. Feeling of collective shame

The mainstream literature on the subject has often characterized ‘honour crimes’ as a retributive means of redeeming collective institutional shame. Erving Goffman notes that, ‘shame’ is an outcome of embarrassing interactions with the society, which can both be temporary and permanent/institutional. With regards honour crimes, it is institutional honour that works as the motivating factor. Further, it has been noted that the honour offenders often work as a group, trying to clean/preserve their community honour as a unit, by acting violently against the victim, who is perceived to have maligned it.

It is this collective feeling of honour/shame that makes the honour crimes unique. Thus, a closer look at the cases worldwide would reveal the intrinsic involvement of the extended family members or the community members of the victim in planning and executing the act. Mazher Idriss of Manchester Metropolitan University points out that the strong sense of bond (brotherhood) among the community members in a closely knit society ignites a sense of retributive compulsiveness among them, to retaliate violently against the victim, even in the slightest threat to such honour. Interestingly, such collective feeling of honour (pride) and shame is visible within different communities across the world, having certain cultural identities similar to each other

3.3. Collective sense of honour in mob lynching

Mark Walters in his extensive literature on hate crimes, frequently argues in favour of an integrated paradigm of honour and hate crimes. Concurring with Walters, I believe, the act of mob lynching, at a motivational level presents intrinsic similarities to that of honour crimes. Leaving the political discourses concerning the phenomenon aside, if we investigate the motives behind the act of mob lynching, a strong sense of immediate threat to the collective honour of the group concerned, coupled with an urgency of violent redemption, is clearly visible.

Both Shahrukh and Faiz’s incidents reflect this. For instance, Shahrukh’s alleged act of trying to steal a buffalo was readily perceived to be a threat to the collective feeling of religious honour and was redeemed in the form of a violent retaliation. Faiz’s death rather presents a template case of honour killing, emerging out of a disapproved inter-faith relationship. Here, the act of entering into a relationship with a girl from a different community was perceived to be dishonourable by the girl’s family/community members, worthy of a violent retaliation in the form of honour killing.

The above discourse, therefore, makes it clear that the acts of mob lynching largely reflects similar intrinsic traits of honour crimes to the extent that the former can be regarded as a specific species of the latter genus.

4. LEGAL REFORMS SUGGESTED

4.1. The judiciary-proposed reforms relating to honour crimes

Within the legal parlance, the issue of honour crimes has persistently been doing the rounds in the reformative discourses for a long time. The urgency of the situation is so grave that the Supreme Court on numerous occasions has recommended amendments in the Indian Penal Code to include a separate section, or a subsection within the existing provisions on murder, dedicated to honour crimes.

Time and again, the apex court has also called for enactment of strict punishments (including capital punishment) for these barbaric practices. In Bhagwan Dass v. State (N.C.T.) of Delhi, Katju, J observed that,

In our opinion honour killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation.

In the 242nd Report of the Law Commission of India, similar recommendations have been made, to amend the existing provisions of the Indian Penal Code 1860 to the extent of including a subsection within Sections 300 and 302 to include a specific provision dedicated to honour crimes. It also called for enactment of a specialized legislation vis-à-vis ‘Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011’. This proposed law is directed towards prohibition of khap panchayats, labelling them as ‘unlawful assemblies’. Such recommendations have been reviewed and approved by the judiciary in Shakti Vahini judgment.

4.2. Progress towards implementation

Unfortunately, despite the Supreme Court’s directions and sheer urgency of the implementation, no significant progress has been made yet by either the union government or the respective state governments towards implementing the Law Commission recommendations. However, it is noteworthy that some of the states, such as Tamil Nadu have constituted dedicated ‘anti-honour killing cells’. States of West Bengal, Rajasthan and Jharkhand have passed anti-lynching bills, while the state of Rajasthan has also passed a separate law against honour killings. But these legislations do not address the interplay between ‘honour’ and ‘lynching’. Demand for such legislation has often been criticized by the government, citing its potential misuse. Analysts have often pointed out that the unfettered influence of vote bank politics entrusted with the local khap panchayats, is one of the core reasons behind this lacklustre attitude on behalf of the legislature.

4.3. Anti-mob lynching guidelines: A similar fate?

As discussed, in the Tehseen Poonawalla Case, the Supreme Court has categorically laid down some explicit guidelines to prevent the heinous acts of mob lynching from happening in future. However, in the last couple of years, despite the sharp increase in the number of incidents of mob violence, no significant measures have been adopted by the legislatures or the executive to implement these aforesaid guidelines. Even more heartbreaking is the recent reluctance among the judiciary to seek updates on the matter. In June 2020, a petition, filed before the Jharkhand High Court, seeking responses from the state government on the implementation of the Tehseen S. Poonawalla guidelines, was rejected on technical grounds. Interestingly, a similar petition is pending before the Supreme Court, since 2019.

The irony of the matter is that the court in Tehseen Poonawalla case, due to the urgency of the issue, had made many of the guidelines as time-bound. The court observed that,

horrendous acts of mobocracy cannot be permitted to inundate the law of the land [and] earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become ‘the new normal’.

However, it seems that the sense of urgency has now somewhat fizzled out.

4.4. The opportunity and the right time to seize it

It can be observed, at least on a theoretical premise, how mob lynching can be regarded as a manifestation of honour crimes. I believe that the time has come to enact a comprehensive legislation, targeting these practices. Such legislation will have to treat the act of mob lynching as a form of honour crime, focusing on the motivational aspects of the crime. By doing so, it will have to define the concept of ‘honour’ in an open-ended manner, so as to encompass different forms of violence committed in the name of it, either explicitly or implicitly.

It is noteworthy that the legislation that is proposed by the Law Commission of India primarily focuses on such template forms of honour crimes, thereby rather ignoring allied issues such as homosexuality, hate crimes and others as forms of honour crimes. I believe that this integrated approach is essential because both mob lynching and honour crimes have gradually become global phenomena. India is gradually rising higher up the ladder as far as the global rates of these crimes are concerned. It is interesting to note, that these crimes are presently viewed from a multi-dimensional standpoint globally, while India lags behind in that quotient. It is about time that India, in order to preserve constitutionally guaranteed rights of the minorities, cracks down on these heinous honour crimes and lynching. Honour crimes only dishonour individual choices and liberties, they undermine rule of law. Mob justice is nothing but sheer injustice, and as Mehmet Murat Ildan said, ‘a society with lynch culture needs a big zoo, not for the animals definitely, but for the very people themselves – zoo perhaps being a metaphor for prison.

Note: I sincerely thank Raghav Shukla, a student of Campus Law Centre, University of Delhi for his insights on this blog.

Eni and Agip’s Investment Claim against Nigeria: Preliminary Thoughts on Foreign Investment Protection in Nigeria

Photo of Jude Nnodum
Jude Nnodum

This post is by Jude Nnodum (Associate Editor of this blog and Doctoral Researcher at Sussex Law School). The post sets out how foreign investors protect their investments under international investment law and, with reference to a recent suit instituted against Nigeria by Agip (a foreign investor in the petroleum industry), it highlights the potential impact the foreign investor protection regime has on Nigeria’s ability to tackle corruption and promote sustainable development.

1.      Introduction

Sometime in late 2020, it was in the news that a multinational oil company, Agip Exploration Limited (together with its parent companies), had instituted an investor-State arbitration claim at the International Centre for the Settlement of Investment Dispute (ICSID) against Nigeria on the basis that Nigeria’s actions were in breach of foreign investor rights as protected under an international investment treaty – the 1992 Netherlands-Nigeria bilateral investment treaty (BIT). It is important to note that the case has not been heard or concluded on the merit and, as such, there is no intention to prematurely predict the outcome of the dispute here, as that may amount to some form of ‘sub judice’; however, this article aims, amongst other things, to provide an understanding of how international investment law offers protection to foreign investors and its implication for Nigeria.

As such, while disclosing how foreign investors and investments are protected through investment treaties and investor-State arbitration, this article argues that international investment law could potentially stifle efforts by host States like Nigeria to address broad public policy matters (such as corruption, as is in the case under study), nevertheless it remains optimistic on how reforms could improve the investment regime. To this end, this work will be made across six sections with the present section introducing the subject. Section 2 contains the background facts of the case, while Section 3 briefly discusses the protection of foreign investors in international law. Section 4 analyses the impact the obligations to protect foreign investors may have on their host States, and Section 5 highlights investment reforms to address the issues raised. Section 6 summarises and concludes the piece.

2.      Background Facts of the Case

The brief facts leading to the present dispute, as reported, are that Eni and Shell (who is not a party in the present case but has previously instituted an investment claim against Nigeria) purchased interests in oil prospecting licence (OPL) 245, a deep-water block off the coast of Nigeria, from Malabu sometime in 2011 for over $1 billion. Malabu, on the other hand, was awarded interests in OPL 245 in the late 1990s during the tenure of Mr. Dan Etete, the then Nigerian Minister for Petroleum, whom, himself, is alleged to have substantial economic interest in Malabu – indicating conflict of interest and corruption. In fact, the purchase transaction transferring OPL 245 interests to Eni and Shell has been the subject of intense dispute by the Nigerian government, including a criminal case on allegations of corruption which was recently concluded at the Court of Milan with Eni acquitted of the charges, though the prosecution has lodged an appeal against the decision.

The above represents how the Nigerian government perceives the deal and a foreground of its actions/decision towards Eni. Ordinarily, the holder of an OPL is licenced to explore oil in the designated oil field, and where exploration is successful such holder may apply to the Nigerian government for an oil mining licence (OML) to be able to exploit – that is, produce and export – the oil discovered. However, due to the allegations of corruption surrounding the purchase of the rights in OPL 245 by Eni and Shell, which tainted the nature of the transaction, the Nigerian government refused to upgrade to an OML. At the time, Eni noted that though the OPL had not been revoked by the Nigerian government, refusal to grant an OML will not only affect their interest in the oilfield but will extinguish investments already made in exploration. By this, the failure of the Nigerian government to convert the OPL to OML would be considered a breach of Nigeria’s investment obligations towards Eni.

3.      Protection of Foreign Investors/Investments in International Law

Two important components of foreign investment protection in international law are, for the purposes of the present study, bilateral investment treaties (BITs) and investor-State arbitration. On the one hand, BITs are agreements made between two sovereign States granting foreign investors (i.e., nationals of the contracting State) and investments various standards of protection. In other words, BITs contain State obligations towards foreign investors within the territory or jurisdiction of the host State. Generally, though not uniformly drafted, obligations towards foreign investors include these guarantees: not to expropriate the assets or property interests of foreign investors (expropriation standard); not to impose arbitrary, unfair and unequitable treatment on a foreign investor (fair and equitable treatment [FET] standard); not to act discriminatorily in favour of another foreign investor(s) or domestic investor(s) (most-favoured-nations [MFN] standard and national treatment [NT] standard) respectively, etc.

On the other hand, investor-State arbitration is considered the most utilised mechanism to settle investor-State disputes and by extension it is pivotal to foreign investor protection; other mechanisms include domestic litigation and more recently mediation. The often-preferred forum to conduct investor-State arbitration is the International Centre for the Settlement of Investment Disputes (ICSID), a brainchild of the World Bank established through the ICSID Convention, which enjoys almost universal assent by sovereign States. Considering ICSID’s wide reach, BITs signed by States often mandate that disputes arising from its provisions are to be resolved under the auspices of ICSID, often by-passing domestic litigation. This offers foreign investors the privilege to institute investment claims against their host States at the international level. This has led to over 800 investment claims against host States.

As noted above, BITs contain investment obligations or guarantees by a host State (i.e., Nigeria) which in turn grant rights to foreign investors. By this, Nigeria assures that its actions or measures shall not breach a foreign investor-protected right. As such, a foreign investor could allege that Nigeria’s action (or inaction, as the case may be) has breached its right granted under a BIT. Depending on how an investment claim is drafted and argued, and the philosophical stance of the investment arbitrator, investment obligations could potentially have far-reaching effects, extending to a wide range of actions or decisions of all tiers and arms of the Nigerian government. Put differently, most sovereign actions of the Nigerian government could be alleged to be – and found – in breach of investment obligations contained in, for instance, the FET standard or expropriation standard provision.

Although the details of the investment claim(s) against Nigeria are not publicly available, it is certain that Eni is alleging breach(es) of foreign investor rights as protected under international investment law. In this case, Eni is relying on the 1992 Netherlands-Nigeria BIT to challenge the Nigerian government’s action – that is, the refusal to convert the rights in OPL to OML – before investor-State arbitration. The Netherlands-Nigeria BIT represents the ‘old generation’ BITs, as the provisions of such treaties were predominantly focused on foreign investment protection – granting rights to foreign investors – with little or no consideration towards the sustainable development of the host State, which includes matters on environmental protection or human rights or issues of corruption in the host State as in the present case.

4.      Issues: Impact on Host States

The potential impact of an investment claim on a host State like Nigeria is twofold. First, when host States are sued, the amount claimed is usually in millions, and sometimes in billions, of dollars. This means that the host State is liable to pay such amount where the claim is successful. Therefore, a successful claim may have substantial financial impact on the respondent host State, more so where it is a State with a developing economy like Nigeria. Second, due to the potential financial liability that may arise from an investment claim, Nigeria, as a host State, may be forced to shun actions/measures ordinarily aimed to tackle broader public policy issues, such as protecting the environment or fighting corruption if such action will affect the interests of a foreign investor. This is known as ‘regulatory freeze or chill’.

Currently, Nigeria faces significant socio-economic, as well as political, challenges, which may require stringent and, often, drastic measures. In the present case, the OPL 245 deal has been widely claimed to be tainted by corruption, considering how the rights were originally obtained. This is not to confirm the veracity of the corruption allegations or suggest that foreign investors should not be protected, but to highlight that in a situation where, for instance, corruption could be proved (considering the difficulty and standard of proof required) a foreign investor may still be entitled to seek protection under a BIT. In other words, the intention notwithstanding, (i.e., to tackle corruption), if the State’s action affects a foreign investor, the host State could be found in breach of its investment obligations and liable to pay the amount claimed. Therefore, Nigeria may not only be liable to an investment claim but also such claim may prevent it from taking further actions.

5.      Looking Forward

The impact of foreign investment protection on the host State has led to various reactions from States, international institutions, and stakeholders in the international investment regime. There have been several efforts to reform the international investment law regime including at the international level by the United Nations Conference for Trade and Development (UNCTAD) and ICSID, but for the purposes of this study focus will be on how to reform BITs. The reason this aspect of investment reform is not only important but also suitable in the present case is because it requires efforts from Nigeria, and it is not necessarily subject to or determined by external influence. In other words, the option to reform BITs gives Nigeria more control and autonomy, which in turn ensures that investment obligations align with Nigeria’s domestic needs and peculiarities.

According to publicly available data, Nigeria is a party to 30 BITs (15 in force) signed with different States at different stages of economic development across the globe. To reform the BITs, it is suggested that Nigeria needs to first develop a model investment treaty (MIT) for two reasons. First, an MIT provides the opportunity to incorporate provisions that will, for instance, give Nigeria the policy space to take actions or measures aimed at promoting sustainable development without breaching obligations towards foreign investors. This may be included in different parts of a BIT: in the preamble, in the body as a substantive provision or as an exemption provision. Second, an MIT would serve as a model to future BIT negotiations, and as such reduce the likelihood of being bound by obligations drafted in a manner that does not reflect or fails to recognise the concerns of Nigeria as a potential host State to foreign investors.

It is important to highlight that implementing the above option may come with its own challenges which includes, amongst others, the political will to undertake the reform and the ability to persuade a contracting State to accede to new provisions. However, it presents a better and readily available option for Nigeria considering that it is largely within its control. As such, in the present case, where such provisions are adequately incorporated in Nigeria’s BITs, actions taken in line with promoting sustainable development in the economy, may be precluded from being in breach of foreign investor/investment protection provisions as mentioned. For instance, a decision to tackle corruption – that is, refusing to convert an OPL 245 to an OML due to suspected corruption in the manner the transaction was undertaken – may absolve Nigeria from liability that would ordinarily arise from an investment dispute with the foreign investor.

6.      Conclusion

This article aimed to provide an understanding of how foreign investors protect their investments under international investment law. With reference to the recent suit instituted against Nigeria by one of the foreign investors in the petroleum industry, Agip, it highlighted the potential impact the foreign investor protection regime has on Nigeria’s ability to tackle corruption and promote sustainable development generally. It concluded that Nigeria’s foreign investment protection regime could potentially stifle efforts to promote sustainable development, including efforts to tackle corruption. To address this, the article proposed that investment reforms such as developing a model investment treaty for future BITs, incorporating provisions in BITs that allow host State’s actions aimed at, for instance, promoting sustainable development or combatting corruption without breaching investment obligations may absolve Nigeria from liability arising from an investment dispute with a foreign investor.

Why is Poland’s ruling party building closer links with right-wing Eurosceptic groupings?

[This post is by Aleks Szczerbiak (Professor of Politics at Sussex). Republished with permission from The Polish Politics Blog.]

by Aleks Szczerbiak

Poland’s right-wing governing party appears to believe that the EU political establishment is becoming irredeemably hostile to it, and that its needs to seek out allies that share its view of the European integration project. But there may be short-term political costs to building links with radical Eurosceptic parties that have pro-Russian sympathies and are less influential within the EU institutions.

Right-wing Eurosceptic parties meet in Warsaw

At the beginning of December, the right-wing Law and Justice (PiS) grouping, Poland’s ruling party since autumn 2015, hosted the so-called Warsaw Summit, a high-profile meeting of conservative and right-wing Eurosceptic parties. These parties are currently split between two main factions in the European Parliament (EP). Law and Justice is a member of the European Conservatives and Reformists (ECR), the sixth largest EP grouping which also includes: the Brothers of Italy (FdI), Spanish ‘Vox’ party and Czech Civic Democrats (ODS). (Prior to the UK’s withdrawal from the EU the British Conservative party was also a member.) The grouping was formed in 2009 as a platform to promote policies associated with the European conservative political tradition distinct from the more centrist and federalist European People’s Party (EPP), which has its origins in Christian Democracy, and the radical right ‘Identity and Democracy’ (ID) grouping. Since the 2019 EP elections, Law and Justice has been the dominant force in the European Conservatives and Reformists comprising 24 of its 62 MEPs.

The Warsaw Summit was part of a broader effort to consolidate different sections of the European right by building stronger ties between Law and Justice and some of the parties that comprise ‘Identity and Democracy’. Some commentators see this as a precursor to the creation of a strong new pan-European party family. In addition to Law and Justice leader and Polish deputy prime minister Jarosław Kaczyński, the most prominent politicians present at the summit were Hungarian prime minister Viktor Orbán – whose Fidesz party is Law and Justice’s closest European ally, and has been looking for a new EP home since it left the European People’s Party in March – and French National Rally (RN) leader and presidential candidate Marine Le Pen. The summit followed an earlier, well-publicised October meeting between Ms Le Pen and Law and Justice prime minister Mateusz Morawiecki in Brussels, her first with an EU state leader. Mr Morawiecki also hosted a dinner for Ms Le Pen immediately prior to the Warsaw Summit.

Taking risks to find allies

This rapprochement between Law and Justice and Ms Le Pen’s grouping marks a change of heart by Poland’s ruling party and follows years of antagonism between the two, despite them agreeing on issues such as national sovereignty and multi-culturalism. Law and Justice previously avoided co-operation with the National Rally – and, indeed, other parties in ‘Identity and Democracy’ – because of major disagreements over their respective approaches to relations with Russia. The Polish ruling party has been at the forefront of efforts to persuade the Western international community to develop a common, robust response to what it sees as Russian President Vladimir Putin’s neo-imperialist de-stabilisation of central and Eastern Europe; and specifically to ensure that EU sanctions on Moscow are maintained and extended. Indeed, Law and Justice sees Poland as playing the role of regional leader standing at the head of a broad coalition of post-communist states to counter Russian expansionism. Ms Le Pen, on the other hand, has been much more accommodating towards Mr Putin and in the past her party has received financial support from Russian banks. Ms Le Pen’s pro-Kremlin views provoked further controversy when, in an interview with the ‘Rzeczpospolita’ newspaper immediately prior to the Warsaw Summit, she suggested that it was the EU that had played a de-stabilising role in Ukraine because this was part of Russia’s sphere of influence.

As a consequence, Polish opposition parties strongly criticised Law and Justice for developing co-operation with Ms Le Pen and other radical right parties with strong ties to Moscow. Law and Justice countered by arguing that it did not share Ms Le Pen’s views on relations with Mr Putin, but that in terms of practical policy preferences she was no more pro-Moscow than many European centre-right and centre-left parties with whom the Polish opposition was closely allied. Their leaders, Law and Justice said, had business interests in, and close economic ties with, Moscow, citing a number of politicians from these parties who had taken jobs with Russian firms. Indeed, Law and Justice argued that the most pro-Moscow project currently underway in Europe was the Nord Stream 2 gas pipeline supported by outgoing German Christian Democrat Chancellor Angela Merkel.

Law and Justice is hoping that little of this opposition criticism will actually cut-through to ordinary Poles. Moreover, it is clearly prepared to risk some potential domestic political blowback from such co-operation because the party feels that it needs allies to advance its project of fundamentally reforming the EU. Law and Justice wants the EU to return to what it sees as its original role as a looser alliance of economically co-operating sovereign member states with a more consensual decision-making process. The departure of the British Conservatives from the EU means that Law and Justice lacks allies on the mainstream centre-right for such a project and hence needs to build closer ties with radical right Eurosceptic parties in spite of their pro-Moscow sympathies.

Is Law and Justice’s ‘twin-track’ EU strategy still viable?

Law and Justice also appears to believe increasingly that the EU political establishment has become irredeemably hostile to it. Although Law and Justice has often been labelled as Eurosceptic, up until now the dominant view within the party was that it could achieve its objectives by pursuing a ‘twin-track’ approach to EU relations. On the one hand, it accepted that there will be disagreements with the EU political establishment on moral-cultural issues where Law and Justice’s attachment to traditional morality and national identity stand in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites. It felt that policy clashes with the major EU powers were inevitable because Poland often had interests that conflicted with the dominant Franco-German axis, and Law and Justice was, the party claims, pursuing a more robust and assertive approach than its predecessors. The party also recognised that the EU political establishment largely agreed with the Polish opposition and legal establishment’s argument that Law and Justice’s judicial reform programme undermined democracy and the rule of law; a claim that it strongly contests. At the same time, however, Law and Justice has tried to present Poland as a positive and constructive member of the Union, and de-couple disagreements over issues such as rule of law compliance from attempts to develop closer economic ties and normal pragmatic working relations between Warsaw and the EU political establishment on bread-and-butter policy issues.

However, the EU political establishment’s recent moves to link the disbursement and management of Union funds to rule of law compliance represents a major challenge to Law and Justice’s ‘twin-track’ strategy. For example, the European Commission has delayed approval of Poland’s draft national recovery plan (KPO), without which it cannot access the first tranche of billions of Euros that it is due from the EU’s coronavirus recovery fund, until Warsaw complies with a July EU Court of Justice ruling calling for the suspension of a newly created disciplinary chamber of the Polish supreme court. The Commission also appears to be planning to trigger a new EU conditionality regulation that allows it to withhold payments from both the coronavirus fund and the Union’s regular 2021-27 budget, from which Poland is set to be one of the largest beneficiaries, if perceived rule of law breaches can be shown to have directly endangered the proper use of these funds. The regulation’s implementation has been delayed pending a challenge to its legality in the EU Court by Poland (and Hungary), with a ruling expected in early 2022.

Law and Justice argues that rule of law conditionality is a political instrument based on vague and arbitrary criteria and lacks a legal basis in the EU treaties. It says that it could be used by the EU political establishment to curb national sovereignty and interfere in almost every sphere of public life by, for example, exerting pressure on Law and Justice to abandon its radical systemic reforms and accept liberal-left moral-cultural norms. The party thus appears to be coming to the view that the EU cultural liberal-left consensus is hegemonic and powerfully entrenched. Consequently, it feels that the EU political establishment will continue to use the rule of compliance dispute and the Union’s legal framework, specifically European Court rulings, to further advance European political integration and federalism by stealth, and marginalize and undermine right-wing conservative groupings committed to traditional values and national identity such as Law and Justice.

Missing leaders and no new EP grouping

However, there are still major question marks hanging over future plans for a new pan-European right-wing Eurosceptic party grouping. Firstly, the significance of the Warsaw Summit was undermined by the fact that not all of the leaders of parties that Law and Justice hoped would join such a new initiative were present. Among notable absentees were the leaders of the two large Italian radical right parties: Italy’s Matteo Salvini from the ‘League’ (Lega) – who was one of the signatories of an earlier July declaration by sixteen right-wing parties and movements, including Law and Justice, apparently laying the ground for a new Eurosceptic EP grouping – and ‘Brothers of Italy’ leader Giorgia Meloni. Czech Civic Democrat leader and prime minister Petr Fiala – who is the only other politician from among these parties apart from Mr Morawiecki and Mr Orban to head up an EU government – also failed to attend. Moreover, although the summit discussed closer co-operation between the respective parties within the EP, including aligning votes on sovereignty and immigration issues, and they agreed to meet every two months to continue talks on the project, there was no mention of forming a new common pan-European political grouping.

At the same time, Law and Justice does not itself appear sure how exactly it wishes to proceed with this project, and particularly how it relates to the extant European Conservatives and Reformists grouping. On the one hand, trying to carve out a distinctive, ideologically pure conservative EP grouping may come across as an indulgence when the most important issue facing the Polish ruling party seems to be finding as many allies as possible with a shared vision of the future of the European integration project. Indeed, if all the parties involved in the putative new European right-wing party family were to combine their forces this could, according to various reports, make them the third or even second largest EP grouping after the European People’s Party.

On the other hand, Law and Justice remains hesitant about abandoning the European Conservatives and Reformists for a speculative new grouping because its de facto leadership of the former provides it with practical advantages and short-term pay-offs within the EP. Law and Justice would have to compete for leadership of the new EP grouping on more equal terms with large parties such as the French National Rally and Italian ‘League’. Moreover, the ‘Identity and Democracy’ grouping and its member parties have been largely isolated in the EP and its committees by parliament leaders who do not want their views filtering into legislation and reports. At the same time, the (apparently less politically toxic) European Conservatives and Reformists remains attractive as a potential EP ally for mainstream groupings such as the European Peoples’ Party. Whatever the longer-term strategic considerations, a formal link-up with more radical pro-Moscow parties, therefore, not only risks domestic political costs but could actually lose Law and Justice influence within the EP in the short-term.

How claims of ‘consensual rough sex’ hide abuse and coercive control from courts

[This post is by Cassandra Wiener (Senior Lecturer at The City Law School, and PhD graduate of Sussex Law School) and Tanya Palmer (Lecturer at Sussex Law School). Republished with permission from The Conversation.]

Mr.Note19 / Shutterstock

Cassandra Wiener, City, University of London and Tanya Palmer, University of Sussex

In December 2018, British man John Broadhurst was sentenced to just three years and eight months in prison for the manslaughter of his girlfriend Natalie Connolly. While Connolly sustained 40 injuries, including a lacerated vagina and a fractured skull, Broadhurst claimed Connolly died accidentally as a result of consensual rough sex. Three years later, Sam Pybus received a similarly short sentence for strangling his partner, Sophie Moss, to death. Like Broadhurst, he said the death was the result of consensual sex.

These are just two examples of defendants using the “rough sex defence” in assault or homicide cases to claim the injuries they inflicted were the result of “sex games gone wrong”. The Domestic Abuse Act 2021 tried to address this problem by providing that a claim of consensual rough sex is no defence to causing serious physical harm. But, as the Pybus case shows, it does not stop defendants claiming that the serious harm they caused was not intentional. This helps to avoid a murder conviction.

As domestic abuse researchers, we are particularly concerned with how abusers use “rough sex” in intimate relationships, which the Domestic Abuse Act 2021 provisions do not directly address. As our new research shows, perpetrators do not need to cause physical harm in order to use rough sex as a key component of their controlling strategy.

While people in non abusive relationships can and do sometimes consent to physically rough sex, victims of domestic abuse (or at least those who live to tell their stories) describe abusive rough sex as part of strategic patterns of domination known as “coercive control”. Research suggests this is the most dangerous form of domestic abuse, and that evidence of control is a more reliable indicator of future homicide than the existence of physical violence.

Through a complex web of physical, sexual and psychological abuse, a perpetrator keeps his victim in a state of perpetual fear, often for her life. Survivors obey their abuser’s demands, because they know what might happen if they do not. Survivors describe a continuous “state of siege”, as the terror of appeasing the abuser becomes the driving force behind every aspect of their daily life.

The unwanted use of even minor physical force in the context of a sexual encounter communicates to the victim that the abuser is capable of hurting or physically overpowering her. It allows a perpetrator to access sex when and how he wants it, cementing his control and “ownership” over the victim. Seemingly “low-level” gestures, such as forced touching or grabbing send the message that the victim is property for the abuser to use as he pleases, alienating her from her own body and sexuality.

Rough sex and the court

The vast majority of rough sex in coercive controlling relationships never comes to the attention of the criminal justice system. Victims rarely report these experiences because they struggle to articulate them in the language of the criminal law.

Even when they do, the criminal law is poorly equipped to respond. Sexual offences such as rape and sexual assault are of limited use in these cases because of the difficulties of proving a lack of consent. This is particularly tricky in cases where a woman may want to have sex with her partner – just not like that.

It is also difficult to charge these abusers with non-sexual assaults. The offence of battery requires proof that the victim did not consent to the use of force. This is difficult to prove when defendants’ stories of consensual rough sex are accepted as plausible. More serious offences of assault occasioning actual bodily harm and inflicting grievous bodily harm are often inapplicable because the victim’s injuries are not severe enough to charge. Yet our research shows abusers do not need to cause serious physical injuries to maintain control over their victims, they only need to show that they could if they wanted to.

Close up silhouette of a woman looking sad with her hand over her face next to a window
Coercive controlling relationships can leave victims in a constant state of fear. KieferPix / Shutterstock

The cases most likely to come to the courts’ attention are those that result in serious injury or death. Yet even here, it appears the courts are all too willing to accept a story of accidental harm caused through consensual sex.

In any event, criminal offences such as rape, assault and murder usually focus on individual occurrences. This doesn’t reflect victims’ experiences of “rough sex” in coercive controlling relationships as part of an ongoing state of entrapment, fear and control. If we only pay attention to some incidents isolated from this broader context, we miss a crucial part of the story.

A new story

Coercive control was criminalised in England and Wales in 2015, in section 76 of the Serious Crime Act. This legislation should have been an opportunity to tell a new story about abusive rough sex.

Drafted properly, a coercive control law would allow the prosecution of rough sex within a controlling relationship for what it is –- an insidious part of a perpetrator’s repertoire as he seeks to control every aspect of his victim’s life. Unfortunately, the offence is poorly drafted and does not include a definition of “controlling or coercive behaviour”.

Our research into the early case law on section 76 shows that a consideration of rough sex as coercive control is completely missing from these cases. Abuse which is simultaneously violent and sexual is still, for the most part, charged under the Sexual Offences Act 2003. This means it is treated as an individual incident rather than part of a broader pattern of abuse. In many cases, it is not charged at all, dismissed as harmless or accidental.

The law needs to make space for a new story: one that recognises rough sex in abusive relationships as an insidious and profoundly harmful form of coercive control.

Cassandra Wiener, Senior Lecturer in Law, City, University of London and Tanya Palmer, Lecturer in Law, University of Sussex

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Criminalisation of Sodomy in Kenya and its effect on reporting of prison sexual violence among Kenyan male prisoners

Florence Wanjiku
Florence Wanjiku

This post is by Florence Wanjiku (Doctoral Researcher and Tutor at Sussex Law School, and an Associate Editor of this blog). The piece summarises key findings from Florence’s PhD research on prison sexual violence in Kenya’s male prisons, focussing particularly on the influence of sodomy laws and the ways ideas of manhood and sexual consent shape the perpetration of prison sexual violence and responses to it.

Introduction

Sexual violence in prisons remains a global problem that continues to be misunderstood, under-explored and concealed. In the last twenty years, the issue of prison sexual violence (PSV) has been given substantial attention by state agencies, advocates and scholars in western jurisdictions compared to sub-Saharan Africa where the problem has received less academic and institutional traction.[1] The limited academic attention to PSV in Sub-Saharan Africa is due to a lack of recognition of the problem and a vehement denial of its existence.[2] Although Kenya ranks ninth in Africa in terms of prison population (with approximately 47,000 inmates in Kenyan prisons), and with the prisons operating at triple their capacity, there remains a dearth of scholarly work on the prison sexual violence. Nonetheless, in Kenya (albeit still underdeveloped) there is increasing evidence from other contexts to support the view that there can be little doubt that the problem is widespread, and in urgent need of attention. In Kenya, male rape victims are recognised under the Sexual Offenses Act 2006, which provides much-needed guidance on differentiating coercion from consent and establishes a range of crimes pertinent in prison settings. However, the lack of appreciation of the cultural workings involved in the dynamics of prison sexual violence hampers efforts to address male rape, especially in the prison context.  Compounding this problem is the continued criminalisation of sodomy which discourages the engagement with the social and identity-shaping dynamics involved during male-on-male sexual encounters, centred on destructive ideas about gender and sexuality.

The study’s approach

Using a qualitative approach of inquiry, this study sort to combine context-sensitivity and rigorous explanations into enquiring how and why the social meanings and identities that surround sexual violence, particularly the ideas of manhood and sexual consent shape both the perpetration of prison sexual violence and how it is dealt with – or not – within Kenya’s male prisons.

The specific research questions that guided this study were:

(1) In what ways do male inmates negotiate consent during sexual encounters?

(2) To what extent does sodomy law influence how inmates understand prison sex?

(3) To what extent does the above influence the reporting of sexual violence in Kenyan male prisons?

Findings and implications

Thematic analysis of the qualitative data provided a plausible representation of the experiences of Kenyan male inmates by showing that sexual violence in prisons is influenced by the restrictions associated with incarceration and the prevailing prison culture. Susceptibility to sexual violence boils down to whether a potential victim has displayed traits that are perceived as feminine (predicts vulnerability to sexual violence) or not. New inmates especially are vulnerable because their unfamiliarity with the unwritten rules of prison sees them easily tricked and manipulated by other inmates.  Thus, to be naive and needy are seen as woman-ness and the risks increase for the poor, physically weak and ‘pretty’ prisoners.

Sexual violence is contained within prison ‘marriages’, which mimic dominant heterosexuality and serve a justificatory function. The interviewees often drew on outside relations to describe prison relations, saying things like ‘prison wives are treated just like women outside’ or ‘you can’t rape your wife’. Prison ‘marriages’ seemed to smooth over the anxiety-provoking issue of violence by disappearing its protagonists: they turned victims into wives and perpetrators into husbands. The behaviours and beliefs that constitute the Kenyan male inmate culture are considered ‘normal’ and are upheld through exaggerated expectations and meanings attached to ‘manhood’ in prison. Consequently, this then entrenches the narratives of agency – the ability to consent – and demands a capacity to both use and withstand violence, the ability to manipulate others, and self-sufficiency.

The above conceptual landscape suggests that, regardless of the nature of the sexual relationship, within Kenyan prisons, some inmates will always be sexually exploited (as they seek favours to alleviate the pains of incarceration or through manipulation) to gratify other inmates’ need to dominate and control. Such encounters then appear to be consensual. However, the boundaries between consensual sex and forced sex (rape) are not always clearly distinguishable among Kenyan male inmates. The question that arises from this is how consensual are the sexual encounters when one has sex in order to survive?

The implicit heteronormative bias in the legal treatment of male rape, which is reflected in the continued criminalisation of sodomy, is perpetuated in prison culture and does not allow the questioning of the sexual interactions between inmates. Instead, anti-sodomy law allows for different sexual behaviours to be conceptually conflated. In other words, sex is not differentiated from sexual violence. This was shown, for example, in the use of the term ‘sodomy’ by respondents in a way that does not distinguish between sex and rape. Sodomy was used to refract the visibility of sexual violence through normalisation of sexual encounters as occurring within prison ‘marriage’ and discrediting any claims of sexual violence as consensual.

Consequently, such conflation serves to keep sexual violence hidden and at the same time perpetuate homophobia. As a result, deeply destructive ideas of what it means to be a ‘man’ are then entrenched among the inmates, which dictates not only how victims of prison sexual violence understand their experiences but also leads to their invisibility and humiliation. The victims are then forced to refrain from reporting unwanted sexual encounters for fear of prosecution, while there are no negative consequences for perpetrators.

The thematic analysis acknowledged that the empirical narratives on sexual encounters between Kenyan male inmates neither spoke for themselves nor represented a foundational form of knowledge. As such, the purpose was not to make experiences of coercive sexual encounters visible for their own sake but, instead, to make them visible through the questioning of sexual consent as negotiated among the inmates to render them available for critique and analysis. Rather than thinking of the inmates’ gender identity as the authoritative and ‘real’ origin of these experiences, the study approached the gender order within the prison as complex and shifting and the medium through which Kenyan male inmates interpret their encounters as either consensual or sexual violence.

Conclusion       

Ultimately, the study conceptualised that in Kenyan male prisons, potent and destructive notions of what it means to be a man are reinforced and perpetuated through homophobia and misogyny. Related to this, sodomy law adds momentum to prevailing inmate structures that seek to circumvent any wrongdoing by insisting that the power-defined interactions between ‘men’ and ‘women’ are consensual. Relatedly, within the Kenyan male prisons environment it is acceptable for an inmate to be a perpetrator of sexual violence while victims are marked by stigma, usually suffering in isolated shame. This is the outcome reinforced by Kenyan sodomy law which further distorts constructions of masculinity and sexuality that are enmeshed with violence – the sexual forms of which are legitimised by being obscured from sight and ultimately led to underreporting of unwanted sexual experiences.


[1] In sub-Saharan Africa, research on sexual violence in prison has mainly been conducted in South Africa, see Sasha Gear, ‘Sex, Sexual Violence and Coercion in Men’s Prisons’, paper presented at AIDS in Context International Conference (2001); Sasha Gear, ‘Behind the Bars of Masculinity: Male Rape and Homophobia in and about South African Men’s Prisons’ (2007) 10 Sexualities 209.

[2] Z Achmat, ‘Sex in Prisons’ (1995) 72 Exit 1.

Understanding the dynamics of protracted displacement

[This post is by Albert Kraler (Assistant Professor, Danube University Krems), Benjamin Etzold (Senior Researcher, Bonn International Centre for Conflict Studies) and Nuno Ferreira (Professor of Law, University of Sussex). It was originally published in Forced Migration Review (FMR) issue 68 (pp.49-52), where it introduces a five article mini-feature on the research project ‘Transnational figurations of displacement’ (TRAFIG). Republished here by permission.]

Displaced persons’ mobility and their translocal networks can provide important resources in the search for durable solutions.

Almost 20 years ago, UNHCR coined the term ‘protracted refugee situations’ to draw attention to the plight of refugees in extended exile and to promote durable solutions. However, the search for solutions for persons in longer-term displacement has been at the heart of the international refugee protection regime ever since its beginnings in the early 1920s. What is more, in several major crises of displacement, mobility options have been a major component of successful strategies to resolve these situations. The emergence of a new term thus highlighted, more than anything else, the failure of the international protection regime to deliver a key promise, namely that displaced persons should be able to regain a degree of normality and to rebuild their lives.

Previous research and policy debates[1] have largely focused on protracted displacement as a policy problem while paying less attention to how displaced persons themselves can shape the conditions of protracted displacement. It is the potential for ‘solutions from below’ that is the focus of the research project ‘Transnational figurations of displacement’ (TRAFIG) on which the five articles in this mini-feature are based.[2] In this article, we revisit the concept of protracted displacement and link our understanding of the concept to individuals’ agency, understood both in terms of their capability to act and in terms of actual behaviour. Our research has a strong focus on mobility as one expression of displaced persons’ agency. Reflecting on historical examples, we examine the role of mobility as a resource for people caught in protracted displacement and as a possible avenue for political solutions to protracted displacement. We end with a brief reflection of the role of current policy approaches in promoting or, indeed, stalling solutions.

Revisiting the concept

In 2004, UNHCR’s Executive Committee presented a paper on protracted refugee situations in which it described a protracted refugee situation as “one in which refugees find themselves in a long-lasting and intractable state of limbo”.[3] The concept was widely taken up and subsequently also applied to other categories of displacement, giving rise to the broader term ‘protracted displacement’.

The concept highlights two aspects of contemporary displacement. Firstly, and reflecting the protracted nature both of conflicts and of persecution in countries of origin, the term simply highlights that exile often extends for many years. Secondly, and more importantly, the notion of protracted displacement emphasises that many displaced persons remain in precarious situations for prolonged periods of time after becoming displaced (in terms of legal status, access to rights and their ability to rebuild their lives), that is, without finding a ‘durable solution’ to their situation. UNHCR defines a protracted refugee situation as “one in which 25,000 or more refugees from the same nationality have been in exile for five consecutive years or more in a given asylum country”. At the end of 2020, some 15.7 million refugees or 76% of the global refugee population were in a situation of protracted displacement, of which a large majority had endured for 10 years or longer.[4] No comparable figures are available for internal displacement. While useful as a broad indication of the scale of the problem, the statistical definition conceals that it is the long-term absence of solutions (rather than the mere duration of exile) that keeps people in protracted displacement. In addition, the statistical concept also does not capture the dynamics of individual protracted refugee situations. Thus, while the Afghan situation has endured for more than four decades, there have been large-scale returns and new displacements, while individual refugees have often experienced displacement on a recurrent basis.

Reconceptualising protracted displacement

In FMR’s 2009 issue on protracted displacement, Gil Loescher and James Milner observed that “protracted refugee situations are the combined result of the prevailing situations in the country of origin, the policy responses of the country of asylum, and the lack of sufficient engagement in these situations by a range of other actors”.[5] While this broad observation still holds true today, it is helpful to examine the more structural forces at play in producing protracted displacement. In our view, these go beyond the conditions in the origin and host countries and the role of other actors in engaging with origin and host countries. Rather, protracted displacement should be viewed as the result of three forces: displacing forces, marginalising forces and immobilising forces. This conception mirrors but is not entirely equivalent to the conventional triad of durable solutions (repatriation, local integration and resettlement) promoted by UNHCR, with their respective association with countries of origin, host countries and third countries.

Displacing forces prevent displaced persons from returning and such forces are present in the country or region of origin and can also be active in first, second and further host countries or regions. Marginalising forces effectively block local integration and operate in the country or region of current stay, whereas immobilising forces hinder (onward) mobility and are at play in the country or region of origin, as well as in transit and host countries.[6]

This conception of protracted displacement allows us to understand protracted displacement as a situation shaped by the dynamic between structural forces and displaced people’s agency. In so doing, we suggest moving beyond traditional understandings of protracted displacement as being ‘stuck’ and as involuntary immobility, that is, an image of protracted displacement often associated with large refugee camps such as Za’atari in Jordan or Dadaab or Kakuma in Northern Kenya. One should not confuse being trapped or stuck with physical immobility. Indeed, our concept of protracted displacement also captures displaced people on the move who have moved elsewhere from a first host country or region, in an attempt to cope with the situation – as a strategy to find a solution which works at an individual or, more often, a household level.

Displacing forces are not only to be located in the country of origin but in receiving contexts too. In addition, we highlight the combined impact of marginalisation and immobilisation in receiving contexts in preventing displaced persons from finding a ‘durable solution’ and indeed locking them in a precarious situation. Our conception stresses the need to take a multi-level and transnational approach to refugee protection and to re-focus attention on solutions. Protection from physical harm and persecution is simply not enough. The main impetus for this is to shed light on the role that displaced persons themselves play in coping with displacement, whether or not the solutions they find for themselves are supported by policies designed to help them, or are in fact (and more often) irrespective of and sometimes despite such policies. Refugees’ mobilities and translocal connections are an example of such strategies. In the following section, we briefly revisit historical examples of solution strategies capitalising on refugees’ own resources and promoting refugees’ mobility.

Learning from the past[7]

Fritjof Nansen was appointed first High Commissioner for Refugees in 1921 to address the long-term situation of Russian refugees, and later also Armenian and other refugee groups. The combination of impossibility of return and the poor economic conditions in many first countries of asylum, plus his office’s own slim resources, led Nansen to place a strong emphasis on mobility and enabling refugees to travel to where there were jobs. The main instrument to do so was a new travel document for refugees, the ‘Nansen passport’. Subsequently, his efforts were supported by a job placement scheme operated by the International Labour Office, under which some 60,000 refugees found employment. But it was really the combination of a) employment demand, b) a travel document enabling refugees to be mobile, and c) some institutional support that enabled the success of Nansen’s initiative and brought down high levels of unemployment among refugees.

After World War II, employment-driven resettlement played an even bigger role in providing solutions to displacement, and continued to take place until the 1960s. While these programmes were not unproblematic and were only made possible by a favourable economic climate and a peak in labour recruitment, they highlight the potential of mobility options in resolving protracted refugee situations. A key contrast between post-War resettlement and Nansen’s support for refugees’ mobility in the interwar period is the greater and almost exclusive reliance on State-led resettlement supported by a considerable infrastructure provided by international organisations. Today the opportunities for mobility are much more limited, reflected in limited resettlement opportunities but also in restrictions on family reunification and more limited opportunities for labour migration.

Conclusions

Mobility has always been an important element in the solutions available to address protracted displacement. As some of the other articles in this feature show, mobility is a highly important coping strategy for individuals, often in defiance of existing policies. The recent emphasis in the New York Declaration and the Global Compact on Refugees on complementary pathways to protection reflects an increasing awareness of the role of physical mobility in promoting ‘durable solutions’. At the same time, there are severe contradictions in the policies of key receiving States. In the European context, for example, the EU emphasises the need to facilitate access to durable solutions and enhance the self-reliance of displaced populations, for instance by improving the link between humanitarian and development assistance. And yet the EU promotes policies that attempt to address the root causes of displacement and irregular migration largely through the use of deterrence. Similarly, the EU’s support for regional integration and free movement regimes enhances access to mobility as a livelihood strategy which is, at the same time, limited by the EU’s externalisation policies that demand third countries’ compliance with migration control conditions in exchange for support.[8]

In sum, there is a need to both refocus policies relating to international protection in general and protracted displacement in particular on protection outcomes, and to assess the ‘fitness’ of policies according to their capacity to promote durable solutions.

Albert Kraler albert.kraler@donau-uni.ac.at

Assistant Professor, Danube University Krems

Benjamin Etzold benjamin.etzold@bicc.de

Senior Researcher, Bonn International Centre for Conflict Studies (BICC)

Nuno Ferreira N.Ferreira@sussex.ac.uk

Professor of Law, University of Sussex

[1] See FMR issue33 (2009) for a snapshot of debates more than a decade ago www.fmreview.org/protracted

[2] The project has received generous funding from the European Union’s Horizon 2020 research and innovation programme under grant No 822453. More information on the project is available at www.trafig.eu.

[3] www.unhcr.org/excom/standcom/40c982172/protracted-refugee-situations.html

[4] UNHCR (2021) Global Trends: Forced Displacement in 2020 www.unhcr.org/60b638e37/unhcr-global-trends-2020, p20. In 2017, some 22% of the then protracted refugee situations had lasted more than 38 years, and 51% between 10 and 38 years. Calculated from UNHCR (2018) Global Trends: Forced Displacement in 2017 www.unhcr.org/statistics/unhcrstats/5b27be547/unhcr-global-trends-2017.html

[5] Loescher G and Milner J (2009) ‘Understanding the Challenge’, Forced Migration Review issue 33 www.fmreview.org/protracted/loescher-milner

[6] Etzold B, Belloni M, King R, Kraler A and Pastore F (2019) ‘Transnational Figurations of Displacement: Conceptualising protracted displacement and translocal connectivity through a process-oriented perspective’, TRAFIG working paper No 1, BICC, p2 –25. https://trafig.eu/output/working-papers/2019-01/D011-TWP-Transnational-Figurations-of-Displacement-Etzold-et-al-2019-v02p-20190709.pdf

[7] This section is based on Kraler A, Fourer M, Knudsen A, Kwaks J, Mielke K, Noack M, Tobin S and Wilson C (2020) ‘Learning from the Past: Protracted displacement in the post-World War II period’, TRAFIG working paper No 2. Bonn: BICC. https://trafig.eu/output/working-papers/trafig-working-paper-no-2

[8] Ferreira F et al (2020) ‘Governing protracted displacement: An analysis across global, regional and domestic contexts’, TRAFIG working paper No 3, BICC, p38 https://trafig.eu/output/working-papers/trafig-working-paper-no-3/D031-TWP-Governing-Protracted-Displacement-Ferreira-et-al-2020-v03p-2021-06-22.pdf.pdf

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Opinions in FMR do not necessarily reflect the views of the Editors, the Refugee Studies Centre or the University of Oxford.
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Fitting in and getting on: exploring the challenges and opportunities of an Education and Scholarship career pathway

[This post is by Paven Basuita, Jeanette Ashton and Kieran Durcan, who all hold Education and Scholarship focused academic positions in Sussex Law School. The piece reflects on the authors’ experiences in these roles as well as on the results of their ongoing research into teaching–focused career pathways in Higher Education. Republished with permission from the DARE to Transform blog.]

Guest post by Paven Basuita, Jeanette Ashton & Kieran Durcan 

Paven Basuita is a Lecturer in Law (Education and Scholarship) and a Non-Practising solicitor. She joined the University of Sussex in 2019 from BPP Law School. Paven runs the Client Interviewing Skills programme with Jeanette Ashton.

Jeanette Ashton is a Lecturer in Law (Education and Scholarship) and a Non-Practising solicitor, having joined the University of Sussex after 8 years at Brighton University. She is Employability lead for the Law School, leads the Client Interviewing skills programme and co-leads the CLOCK legal companion scheme and peer mediation clinic.

Kieran Durcan is a Senior Lecturer in Law (Education and Scholarship). He is the Education Lead, LLB Convenor and Placement Convenor within the Law School.

Starting a new job is exciting – especially being recruited to join a well-established institution like the University of Sussex (‘Sussex’). This is the position in which we found ourselves in 2019 when we were recruited to join Sussex Law School on the, relatively new, Education and Scholarship (E&S) career pathway. We each had experience of teaching, enhancing the student experience and leadership from our previous institutions and had all worked in legal practice. We did not, however, come from research backgrounds or have a focus on disciplinary research (Locke et al, 2015). The new career pathway was appealing because it seemed to offer a way for people like us to succeed and be recognised.  

On joining Sussex, we became aware that being on an E&S contract was not straightforward. There was a lack of clarity about what we were expected to do in order to meet the requirements of our roles, including what was expected to pass probation and to achieve promotion. It was not clear what ‘scholarship’ meant and what it included (and excluded). Despite being aware that teaching-focused lectureship roles were on the rise in UK Higher Education (UKHE) (UCEA Higher Education Workforce Report, 2019), we did sometimes wonder whether we really ‘belonged’ at a research-intensive institution like Sussex.  

Our experience prompted us to design a research project to explore the following issues: 

  • The prevalence of teaching–focused career pathways in Higher Education and how well-defined they are. 
  • How the E&S pathway is perceived within Sussex Law School. 
  • The role of staff on E&S contracts within the Law School and how they fit alongside those on Teaching and Research (T&R) contracts. 
  • The scope and expectations of the E&S role and possibilities for progression.  
  • The challenges and opportunities offered by the new pathway. 
  • How the career pathway relates to academic identity and belonging. 

We chose a mixed-method sampling approach, deciding to explore these issues by analysing the ‘law lecturer’ jobs advertised on jobs.ac.uk and by conducting empirical research through a focus group with colleagues at the Law School (Denscombe, 2007).  Whereas a 2020 BAM paper had focused on these roles from the perspective of Deans of UK HE Business and Management schools, we wanted to focus on the picture in legal education, and to gain an ‘on the ground’ insight. 

Survey of the UKHE job market 

Our survey involved identifying and analysing all the ‘law lecturer’ roles advertised (below professor level) in the UKHE job market as at 20 February 2020. The survey covered 24 UK institutions including Russell group, non-Russell group pre-1992 institutions and post-1992 institutions, with several having more than one post available. We wanted to ascertain the clarity of the roles and whether the expectations would be clear to a prospective applicant, particularly in terms of research and scholarship requirements. 

Lectureships with a professional focus, including the SQE and clinic roles, were clearly defined, requiring experienced practitioners (Bristol, Manchester Metropolitan) to support legal clinics and/or SQE focused modules. Similarly, more traditional ‘Teaching and Research’ roles, mostly, but not exclusively, at pre-1992 institutions, provided some clarity on research expectations, requiring “research excellence”, “leading research” in the specified area, with one requiring a minimum of two 3* publications for REF purposes as assessed by the School (Aberdeen). Here at Sussex, the roles were listed as on the ‘Teaching and Research academic pathway’, with Sussex being the only institution to indicate distinct pathways. 

For many institutions, however, the roles were not clearly defined, particularly where scholarship and pedagogical research were mentioned. Through the lens of our project, we inferred that these roles, although not labelled as such, were essentially ‘Teaching and Scholarship’ roles, with more of a focus on teaching and pedagogy, than subject-specific research. However, from the perspective of an early career academic, particularly those who have recently completed their doctorate and are seeking a first academic post, this lack of clarity could be a barrier, both to applying and securing the role. Even if successful, they may find establishing their identity as an academic challenging if, for example, they had expected to develop their doctoral research, but were instead expected to focus on pedagogy. This issue was raised in our focus group and is one we are keen to explore further in the wider project. 

Focus group within Sussex Law School 

We invited all of the Law School faculty (65) and, unsurprisingly, given the challenges of the year, take up was low. Seven faculty members participated in the focus group, including two on research contracts, one of whom had moved from an E&S role, and two who had moved from research to E&S contracts. Two of the participants had recently completed PhDs and the implications of the scholarship requirement were particularly important to them. 

Preliminary findings from the focus group 

Variety of career backgrounds and stages of lecturers on E&S contracts 

Even within our small group of participants we had a diverse group of people with different motivations for being on a particular pathway. For those on the E&S contract, some thought it meant more teaching and less research. For another it was a way to get their first academic job following their PhD – but this created a problem as they were not clear how or whether they could continue their disciplinary research. This raises an important question for those designing these contracts, which was raised by one of our participants – who are these contracts for?  

Perceptions of the role  

Participants had different views about what the role was for. For some, it was about a focus on pedagogy and students. Others saw it as being the same as a teaching fellow but with a change of title. Some participants also said their view of the role had changed over time. 

Perceptions of scholarship 

One of the findings which came through strongly was a lack of clarity about what scholarship means. This has been identified in earlier studies (Fanganel et al, 2015) and in other contexts, such as in Business schools (Smith & Walker, 2021). There was particular confusion over whether disciplinary research ‘counts’ for those on an E&S contract.  Another example of the lack of shared understanding was whether writing or updating a textbook would count as scholarship, with participants reporting on receiving conflicting advice.  

Moving between pathways 

Transitioning between contracts emerged as a source of anxiety, with some participants worrying about the potential consequences on their careers and wrestling with the decision for a long time. One fear was how/whether the E&S role would be recognised by other institutions. This issue is made worse by the lack of consistency we identified in the job descriptions in our job market survey. Switching career track was therefore seen as taking a risk. The group identified a lack of support for those transitioning between contracts.  

Career progression 

There was a lack of consensus amongst our participants about whether it was easier or harder to get promoted on this route compared to a T&R route. Given that this is a new track within the university, it will be interesting to monitor this going forward.  

Recognition/Parity of Esteem  

Participants acknowledged and welcomed the intention at Sussex to better recognise the contribution of colleagues on E&S contracts. There was disagreement in the group about whether or not parity of esteem had been achieved compared to T&R contracts. One of those new to Sussex, and to academia, for example said they had not experienced any parity of esteem issues whilst another drew attention to disparity in terms of marking allocations. 

Identity as an academic 

This seemed to be a particular issue for those who have moved between pathways. One participant described ‘starting over’ and needing to ‘reinvent myself’. They also felt it was harder to have a clear identity as an E&S lecturer compared to a T&R lecturer. One participant talked about having to start from scratch and how the limitations on what they could research as an E&S lecturer meant they could not do ‘my…stuff’ anymore. This lack of control and purpose could have implications for law teachers’ wellbeing (Wilson & Strevens, 2018). 

Analysis and recommendations 

We will be developing our analysis and recommendations in our full paper but some initial observations were: 

  • The background, motivations, needs and career stages of those on these contracts vary greatly and the E&S career pathway needs to be flexible enough to accommodate them all. A particular overlooked group are PhD students who are getting their first position at the University. If they are put on an E&S contract, where does that leave their disciplinary research? 
  • There is a lack of shared understanding regarding the expectations of the role, and, in particular, what scholarship means. Sussex has adopted Boyer’s 1990 definition of scholarship: ‘knowledge acquired through research, through synthesis, through practice and through teaching’, but we suggest that more work needs to be done to embed this throughout the institution, including what this looks like in practice. Staff workshops are helpful for colleagues on E&S pathways, but it is particularly important that promotion panels, managers and mentors have a clear and consistent understanding of what is expected and that this understanding is shared by staff at all stages of their careers.
  • The concept of scholarship needs to be more flexible to accommodate the diversity of staff on these contracts, their different interests and strengths. For example, to recognise staff who wish to undertake disciplinary research or for other activities in the Law School, which are (wrongly, we feel) described as ‘Admin’, such as developing employability skills and opportunities. However, we also recognise that there is a tension between making the contracts flexible whilst also making sure they are clearly defined and distinct from the T&R pathway.  
  • Transitioning between contracts emerged as a source of particular anxiety and greater support is needed in relation to this.  
  • Progress has been made at Sussex in the establishment of these pathways and a clear attempt has been made to achieve parity of esteem, but we believe there is more work to do.  
  • Being on an E&S contract raises identity questions about what it means to be an academic today and could have implications for wellbeing. 
  • The lack of a sector-wide, clearly defined, E&S pathway is a problem, particularly for those entering academia and those wanting to move to an institution which may not recognise the E&S lecturer route. We believe that the poorly defined job descriptions may be a barrier to applying for lecturer positions which undermines access to academia and diversity in the profession.  

As we continue our research, we look forward to proposing some formal recommendations to our university and to working with colleagues at other institutions to improve understanding of the issues and how they can be tackled. Our initial research indicates that addressing the challenges will benefit those on the pathway, their institutions and the HE sector more widely. 

References

Anderson, L. & Mallanaphy, P. British Academy of Management, ‘Education-Focused Career Tracks in Business and Management Schools: Current practice and recommendations for progress’, 2020 White Paper (bam.ac.uk) (accessed 10/08/2021). 

Boyer, E.L. 1990. Scholarship Reconsidered: Priorities of the Professoriate. Lawrenceville, NJ: Princeton University Press. https://eric.ed.gov/?id=ED326149 

Denscombe, M. The Good Research Guide for small-scale social research projects(Oxford University Press, 2007). 

Locke, W., Whitchurch, C. , Smith, H. and Mazenod, A. ‘Shifting Landscapes, Meeting the staff development needs of the changing academic workforce’, 2015 HEA – report (heacademy.ac.uk) (accessed 10/08/2021). 

Fanghanel, J., Pritchard, J., Potter, J., & Wisker, G. (2016). Defining and supporting the scholarship of teaching and learning (SoTL): A sector-wide study. York: HE Academy (accessed 10/08/2021).

Smith, S., & Walker, D. (2021) ‘Scholarship and academic capitals: the boundaried nature of education-focused career tracks’, Teaching in Higher Education, Critical Perspectives https://doi.org/10.1080/13562517.2021.1965570 (accessed 18/08/2021).

Wilson, J.C., & Strevens ,C. (2018) Perceptions of psychological well-being in UK law academics, The Law Teacher, 52:3, 335-349. 

Universities and Colleges Employers Association (UCEA), Higher Education Workforce Report (UCEA, 2019) Higher Education Workforce Report 2019 (ucea.ac.uk) (accessed 18/08/2021).

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