Hating the coronavirus is pointless. But no good will come from turning anxieties and anger against Chinese people

[Republished with permission from the International Network for Hate Studies blog]

By Mark Walters, Professor of Criminal Law and Criminology, University of Sussex, and co-Director of the International Network for Hate Studies

Just over two months ago Mandy Huang was shouted at by a man who told her to “Take your f****** coronavirus back home!” Her friend who tried to intervene bore the brunt of the offender’s rage when she was punched in the head and knocked unconscious. Since then, hate incidents targeted against Asian people, and those who are perceived to be Chinese, have proliferated globally. Violent incidents have been officially recorded in mainland Europe, UK, USA, CanadaAustraliaJapan and Thailand (amongst others). Despite the current resource pressures that the pandemic has brought, incidents of this type have not escaped the attention of the UK authorities. The Crown Prosecution Service for England and Wales has already prosecuted numerous corona-related offences with one offender from Dudley receiving an additional four weeks on his initial 12 week sentence for demonstrating racial hostility that included reference to the coronavirus during the commission of his offence. Chris Long, Chief Crown Prosecutor and CPS national lead on hate crime, said that there have been cases of “hate crime directed at communities based on incorrect assumptions and conspiracy theories”. These have been in addition to the “attacks and racial abuse targeted at our emergency and essential workers who stand at the front line of this pandemic and are working hard to keep us all safe and well.” He added that “be in no doubt, we will not hesitate to prosecute those who seek to attack, abuse or defraud people.”

The incidents that have come to the attention of the CPS are likely to represent just a handful of the thousands of offences involving corona-related hate abuse that have occurred over the past few months. Social media is replete with examples of individuals being verbally and physically abused for looking Asian. In many cases the word “corona” has been turned into an expression of hate itself, with perpetrators simply shouting it at people as a form of abuse. Other individuals are being made to feel uncomfortable as people make visible efforts to physically avoid sharing space with them, making tutting sounds, and glaring or displaying disapproving looks.  Racist behaviour of this type not only affects those who are targeted but can have damaging psychological and behavioural impacts on entire communities of people who fear they too could become the targets of such hostilities.

The upsurge in anti-Chinese prejudice, while extremely troubling, is sadly unsurprising.  Billions of people are feeling highly anxious and fearful that Covid-19 will kill them or their loved ones. Frightened people are likely to act unpredictably.  Yet while many people have turned to stockpiling toilet paper, tins of tomatoes and, as personally witnessed yesterday, attaching a four-metre paddle to one’s waist to ensure social distancing, a minority of others have chosen to express their internal agitations in more violent form.  It is nothing new that in times of a perceived physical threat, increased numbers of people lash out violently towards those that they believe as being, at least symbolically, to blame. This is frequently observed in the aftermath of what criminologists refer to as “trigger events”, such as where the number of anti-Muslim hate crimes spiked directly after events such as the murder of Lee Rigby, the Manchester Arena Bombing, and most recently the Christchurch mass shooting in New Zealand. We have observed too how hate crimes increased after the EU referendum with hostilities directed towards immigrants and BAME groups surging for a more sustained period of time.

The emergence of the novel coronavirus has for many served as an almighty trigger event that has sparked hostilities towards those perceived to be responsible. Research has shown that where individuals perceive a group of people to pose a physical threat to their safety (often referred to as “realistic threats” by social psychologists) this will frequently result in biased behaviours towards members of these groups. In some cases, individuals can react violently as their internal anxieties and fears trigger an aggressive response that aims to suppress the perceived threat. There is certainly no paucity of examples of such incidents in the initial first few months of the outbreak.  The virus has been reimagined as a threat posed, not by a biological pathogen, but by specific racial groups. Like almost all targets of hate, its victims need a face.

Racial animosities have been worsened still by anti-Chinese political rhetoric. We know that when leading politicians make disparaging or biased comments against certain groups that incidents of hate increase. For instance, researchers have shown that when Donald Trump sends anti-Muslim tweets, hate incidents against Muslim people increase directly afterwards. It is likely that Trump’s theatrical press briefings where he has persistently referred to Covid-19 as the “Chinese Virus” will directly translate into anti-Chinese hate crimes. The leader of the free world has strengthened the narrative that the virus has an ethnic face.

Situational contexts are also important to understanding the surge in hate incidents connected to the pandemic. In places where there are more available victims, higher numbers of incidents will be recorded. Given the virus is more likely to spread in confined environments it is unsurprising that initially there were high levels of abuse occurring in enclosed public spaces including on public transport.  However, as the lockdown has been brought into force rail and Tube users have decreased by over 96%, and with this there will be a decrease in the number of hate incidents occurring each day.  Situational theory is important in explaining crime levels more generally. Although social situations do not necessarily explain why people commit crime, they can have a significant effect on the amount, and location of, criminal activity. For example, burglaries have significantly fallen since the lockdown. The historically low levels of burglaries are most certainly not a result of people no longer wanting or “needing” to commit theft. Rather, there are fewer opportunities to successfully commit such crimes while people are indoors. Like most crimes, however, individuals will find new avenues to act out. Consequently, while anti-Chinese abuse and other forms of hate crime may reduce in public spaces (for the time being), online incidents are likely to continue to rise. Zoom bombing, where someone hacks into another’s online meetings, has already resulted in people beaming hateful content into the homes of unsuspecting participants, including one case where a virtual Synagogue service was quickly inundated with antisemitic slurs and symbols.

Conversely, other physical hate-based crimes will flourish while we all spend more time at home. Levels of domestic violence are likely to skyrocket as the tensions of being at home all day exacerbate the underlying causes of these offences. Although people of all identities can experience domestic violence, women, disabled people and young LGBT people are disproportionately affected. Enforced confinement in private spaces where disablist, misogynistic and homophobic attitudes go unchallenged will cultivate toxic micro-environments where violence will likely proliferate.

Given the high levels of domestic abuse experienced each year this is of grave concern. Crime Survey for England and Wales statistics estimate that last year alone 1.6 million women over the age of 16 were the victims of domestic abuse. In the same year 99 female victims were killed in a domestic homicide. Since the lockdown the domestic violence charity Refuge has reported a 49% increase in calls to its helpline. The Home Secretary has responded by announcing a £2 million fund to assist charities working to support victims, and the UK House of Commons Home Affairs Committee has set out a report on steps needed to mitigate the problem.  It remains to be seen whether this will be enough to protect victims. Indeed the charity Counting Dead Women has already calculated that there were at least sixteen domestic abuse killings of women and children between 23 March and 12 April. With the lockdown continuing for the foreseeable future it is likely that many more women will die at the hands of their partners this year.

As knowledge of the virus begins to mature and more and more countries enter into national crises, the nature and dynamics of incidents of hate and hostility will likely evolve in tandem with a changing narrative that accompanies developments in the pandemic.  From the focus of the “Chinese virus” has emerged a commonly stated strapline that the disease is “indiscriminate”, affecting people of all ages and ethnicities (though UK data suggest that minority ethnic groups are being disproportionately affected by the disease, potentially as a result of structural racism). Political and media attention has also been refocused on death rates, trials for new vaccines, a lack of PPE, ramping up testing facilities, and the need to “stay at home”. This second stage of the pandemic has called for new powers and measures of social control to be enforced in order to reduce the rate at which the virus is spreading. While of crucial importance to “flattening the curve”, this has given some governments the chance to roll back human rights protection in the name of public protection of health. Sweeping new powers have been brought in by governments across the world giving them unfettered powers to surveil citizens and greater authority to police the boundaries of acceptable behaviour and identity.  Last month Viktor Orban’s government in Hungary granted the prime minister the power to rule by decree for an unlimited period of time. His new powers include suspending the enforcement of certain laws, not only those related to the crisis. One day after the new law was passed the Hungarian government submitted a bill to parliament that will make it impossible for transgender people to legally change their gender. The old adage of “never let a good crisis go to waste” is a pertinent reminder that critics and human rights observers cannot take their eye off the ball during these frenetic times.

Even seemingly benevolent measures to protect the public can have discriminatory outcomes. Take for example measures by South American countries that only allow women and men out of their homes at different times. This has resulted in some transgender people being stopped and questioned by police, such as in Panama where one trans woman was fined for leaving the house on a day designated for women only.  Other social distancing measures will undoubtedly disproportionately affect individuals from other marginalised groups, such as sex workers who won’t be furloughing anytime soon.

In the coming months of the pandemic, recriminations about the causes of the virus will no doubt be vociferously made as other issues that have captured media attention begin to wane. From the initial anxieties and fears of catching the virus will emerge feelings of anger and rage about its devastating impacts. There are likely to be two salient avenues through which hate and hostility will evolve at this stage. The first, which has already begun, is the propagation by some state representatives and religious leaders of malicious antisemitic conspiracies that Israel is responsible for developing and spreading Covid-19 virus in order to decrease the non-Jewish population and to control the world. Indeed, UN Special Rapporteur on freedom of religion or belief, Ahmed Shaheed has recently stated “I am extremely concerned to see that certain religious leaders and politicians continue to exploit the challenging times during this pandemic to spread hatred against Jews and other minorities.” No doubt these pernicious lies will continue and strengthen over time.

The second and perhaps more mainstream narrative that is likely to form is that “China” is to blame for the devastating global social and economic ills caused by the virus. In racialising the cause of the pandemic, its saviour will likely be equally racialised, with the US and UK institutions racing to find a cure. The cultural chasm between West and East will be entrenched further as US and European governments reel from the impacts of the pandemic and as each seek to control the narrative of who is fixing it.  President Donald Trump has already suggested that China will need to pay compensation to the USA. The Chinese government will no doubt fight back by spreading misinformation about the origin of the virus and by threatening economic retaliation for those who dare to criticise the State’s own actions. A fine balancing act is required here, where recriminations about the factors that may or may not have led to the initial spread of the disease, including the use of live-animal markets, unethical treatment of animals, and secretive governments that withhold or manipulate important public information, need to be fully investigated. However tough this process might be, it must be conducted without the additional mantra of “Chinese viruses” and “Chinese people” as being to blame for the spread of the virus. The actions of governments are not the actions of people. The heroic efforts of doctors and scientists in China must be at the forefront of our learning from this pandemic. Many of them have already died trying to save others.  Each of them deserves our thanks. There will be many state actors, on the other hand, that will deserve our ire.  Governments often act badly and they rightly deserve our anger. Let us resist the temptation to tar an entire nation of people with their misdeeds.

In the aftermath of this global crisis there lies a dangerous risk that the community fissures exposed by the pandemic will leave lasting social scars. Policing of hate crimes will be crucial to combatting any upsurge in public hostility. Paul Giannasi, the hate crime advisor to the UK police said “we know that fear and hostility are never far apart. Those who stir up ideological hatred have seen it as an opportunity to peddle their existing bigotries, through misinformation and bizarre conspiracy theories. We are working closely with communities to encourage victims to come forward and bring offenders to justice.” Beyond the thin blue line, much more needs to be done to prevent hate incidents from compounding the broader socio-economic effects of the pandemic. Political leaders must now start working with social scientists and community groups to develop strategies to enhance social cohesion and to find ways to repair the social disadvantages that entire communities of people have endured for too long. Indeed, the social justice of the future is not just about creating a fairer economic system that adequately recompenses essential workers, it involves recognising and readjusting structural inequalities that expose specific groups of people to hate and hostility in the first place.

A Violence Which Must Be Named (Critique in Times of Coronavirus)

[Republished with permissison from Critical Legal Thinking]

by Tarik Kochi • 29 April 2020

Across the UK two narratives currently dominate and frame much of the critique of the British government’s current response to the Coronavirus pandemic. The first is that of incompetence. The story so far unfolding is that of a government which has ignored both the World Health Organisation’s advice and the experience of numerous other countries in their approach to limiting the spread of Coronavirus, as well as ignoring earlier recommendations and warnings within UK government commissioned contingency planning. The picture is that of a Prime Minister and Cabinet drastically out of their depth, with little experience of crisis management or detailed planning. It is an image of a government disorganised, acting too slowly, ignoring the pleas of many within the NHS, incapable of rolling-out mass testing, and therefore actively contributing to a death rate which is much higher than neighbouring countries like Germany.

A key figure in the narrative of incompetence is the persona of Boris Johnson, the spoilt public schoolboy, the chancer. He is a politician who is a master of grand rhetorical flourishes but who has previously shown (as with the case of Brexit and Northern Ireland) that he possesses little by way of mastery of detail. This picture, commonly presented in liberal-left newspapers like The Guardian, is now even being briefly sketched by the News Corp owned The Sunday Times with an account given of Johnson failing to attend a number of Cobra crisis meetings in January and February as worries over a global pandemic started to grow globally[1].

The second intertwined narrative of critique is that of a British government acting within the framework of a right wing nationalist, Brexit ‘populism’. This is less dramatic perhaps than that displayed in the USA by President Donald Trump, but is still visible in Boris Johnson’s early dismissal of social distancing and the boasting of having shaken everyone’s hands on a visit to a NHS hospital. The predominance of an attitude which tipped its hat to Brexit populism can be found in the way the British government dragged its heels in late March 2020 in imposing a social and economic lockdown. Johnson expressed a reluctance to lock the country and economy down as it was contrary to British ‘liberty’ and this took place even as the level of mortality rose dramatically in Italy and Spain.[2]

The story of British populist nationalism pervaded British government attitudes to refusing to initially join EU procurement schemes for ventilators and personal protective equipment. Populist nationalism seemingly guided also the favouring of British ‘branded’ firms like Burberry and Dyson in the as yet unsuccessful production of key equipment, in the reluctance to advise the general public to use face coverings, and in the jingoistic championing of the NHS as a public ‘wartime’ effort. Such government championing of the NHS is of course detached from the reality of continued government failure in properly supporting the NHS and community public health provision with adequate resources, equipment and testing. As such the British government’s response is still guided by an agenda of right wing nationalist culture war. The NHS is portrayed by both the Conservative party and the tabloid press consistently in patriotic, jingoistic terms – and never, contra the Brexit logic, as a multi-ethnic, cosmopolitan institution, highly dependent upon the labour of immigrants. Generally there is a sense then that key figures within the British government have been so shaped by a mind-set of the proceeding years of populist, nationalistic Brexit campaigning that they are unable to either understand or respond to the Coronavirus crisis in any other way.

However, while there is a great deal of truth in the twin narratives of incompetence and right wing populist nationalism, there is a danger that this focus alone, and the focus upon the persona of figures like Johnson or Matt Hancock (or Trump in the USA), obscures a deeper truth to the current crisis. This truth is a history and contemporary persistence of neoliberal ideology and rationality which has shaped, guided and blinkered the actions of the British government. Incompetence and populist nationalism take place then in the context of a neoliberal world view which has turned a dangerous and deadly virus into systematic social violence. Political, security and public health strategy shaped by the context and persistence of neoliberal ideology amplifies social, economic, class, gender and racial inequalities and does so to expand the pool of those who are vulnerable to and institutionally unprotected from the threat of death from Covid-19. Neoliberalism does this by framing the ideas of social protection and the public good in such a way that the value human life is always relative to and lesser than the value of capitalist accumulation.[3]

The British government’s response to the Coronavirus crisis, guided by the current dominance of neoliberal rationality within the Conservative party and across sections of the civil service, has to be placed in the historical context of 40 years of neoliberal restructuring and social transformation.  Over this period the institutional capacity of the NHS, the wider public health system, local government, and community and social care provision have been stripped apart and drastically underfunded through policies of austerity. Many of these institutions have been partially privatised, their reservoirs of institutional knowledge depleted through job losses and outsourcing to the private sector, their information systems and coordination mechanisms fragmented and rendered inefficient and sometimes inoperable through years of moulding and shaping in accordance with the logics of market competition. In this key respect the incompetence of the current British government response, papered over by patriotic rhetoric, is a result of the deep institutional failures of the neoliberal state and the devastating consequences of a 40 year project of neoliberal state building, social reorganisation and the production of neoliberal subjectivity.

One dramatic example of the British government’s approach has been the early policy of allowing the infection to spread in the hope of generating a form of ‘herd immunity’. While this has been rolled back somewhat via social distancing, aspects of this policy are still in play during the current lockdown through the absence of widespread testing and social contact tracing.[4] Such a policy places the vulnerable, such as the elderly either in their own homes or within care homes, as well as those with serious medical conditions, subject to a roulette wheel of contact with medical staff, carers and family members. So far the majority of medical staff, paid carers, and family members providing care (many who still have to travel to work) have had no access to either testing or the technologies of information sharing via contact tracing.

The policy of working towards herd immunity cannot be disconnected from attempts to secure the buoyancy of the capitalist economy. This approach (allegedly initially supported by Dominic Cummings[5]), continues to play a role in current debates over the easing of the lockdown and typifies the ‘biopolitical’ operation of neoliberal rationality as identified by Michel Foucault.[6] In this the population is managed as a herd, some are left to live and others left to die based upon utilitarian projections of an ‘acceptable’ level of deaths ranked against the costs of protection, and against the potential damage to the capitalist economy. For the most vulnerable, unprotected by widespread testing and tracing, this amounts to what Achille Mbembe more sharply terms the activity of ‘necropolitics’[7] – a politics of death which of course operates in far more extreme terms across the Global South.

The reality of the current operation of a neoliberal necropolitics is the threat of death intensified by economic inequality and economic vulnerability. Hence in contrast to advertisements for the middle classes suggesting they spend their lockdown following online yoga sessions or cooking a day-long ‘isolation Middle Eastern lamb roast’ with ingredients bought from Tesco, life for the poor in contemporary capitalist society is rather different. Those who are forced to travel to and from precarious, low paid work, or live in cramped homes full of extended family members, or survive on meagre state benefits or state pensions or foodbanks, are already fully subject to the systematic violence of the neoliberal state. If they fall ill, in turning up to an underfunded and under-resourced hospital they are forced to face the deadly consequences of the systematic violence of the neoliberal state all over again. Further, if and when the pandemic calms the burden of public debt, newly incurred by the government to prop-up the economy, subsidise wages and prevent mass bankruptcies, will no doubt be unevenly loaded upon the shoulders of the population in renewed measures of austerity and more savage cuts to what remains of the welfare state. As with the previous round of pragmatic, state intervention to bail out the banking sector in 2008, the costs of this debt burden will impact the greatest upon those already suffering economic and social disadvantage.

As this crisis rolls on, develops, changes, what must be remembered, critiqued and held to account is the violence of neoliberal ideology and the many different manifestations of neoliberal rationality and strategy. Against the dementia created by the production of neoliberal subjectivity, the waging of culture wars, the cult of political personality, and the jingoistic chants of nationalistic populism, the systematic social violence of neoliberal thought and political action which is shaping and intensifying this crisis must be named. As with the legacy of the 2008 financial crisis, it would be naïve to think that the current crisis will somehow automatically erode the hegemonic hold of neoliberal ideology over contemporary social and political thought. Rather, throughout the pandemic and any subsequent economic crisis the proponents of neoliberalism will most likely assert ever more strongly a value system which sacrifices human dignity and social equality for the sake of capitalist accumulation. Whether this takes place through new and greater levels of austerity, strategic forms of internal structural adjustment framed as ‘resilience’, or as the intensification of neoliberalism’s populist nationalist turn, this is a violence which must be named, called out, and contested.

Tarik Kochi, University of Sussex, is the author of Global Justice and Social Conflict: The Foundations of Liberal Order and International Law (Routledge, 2019).

[1] Jonathan Calvert, George Arbuthnott, and Jonathan Leake, ‘Coronavirus: 38 days when Britain sleepwalked into disaster’, The Sunday Times, 19 April 2020.

[2] Fintan O’Toole, ‘Coronavirus has exposed the myth of British exceptionalism’, The Guardian, 11 April 2020.

[3] For differing accounts of neoliberalism see generally: David Harvey, A Brief History of Neoliberalism (OUP, 2005); Stephen Gill, Power and Resistance in the New World Order (Palgrave Macmillan, 2003); William I. Robinson, Global Capitalism and the Crisis of Humanity (CUP, 2014); Philip Mirowski, Never Let a Serious Crisis Go to Waste: How Neoliberalism Survived the Financial Meltdown (Verso, 2014); Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015).

[4] Anthony Costello, ‘Despite what Matt Hancock says, the government’s policy is still herd immunity’, The Guardian, 2 April 2020.

[5] Peter Walker, ‘No 10 denies claim Dominic Cummings argued to ‘let old people die’’, The Guardian, 22 March 2020.

[6] Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France 1978-79, trans. Graham Burchell (Palgrave Macmillan, 2008).

[7] Achille Mbembe,“Necropolitics”, trans. Libby Meintjes, Public Culture 15, no.1, (Winter 2003), 11-40.

COVID 19: A Cautionary Tale of the Dangers of Unsustainable Food Production and Consumption

Picture jo and field
Joanna Miller Smallwood
Izabela
Izabela Delabre

In this post Dr Joanna Miller Smallwood (Sussex University ESRC/SENSS Post Doctoral Fellow and Non-Practising Solicitor) and Dr Izabela Delabre (Sussex University Business School Research Fellow and Sussex Sustainability Research Programme) highlight the relationship the current COVID-19 pandemic crisis has with unsustainable food production and consumption.

SARS-CoV-2 and links to biodiversity

2020 is a critical year for biodiversity and the current COVID-19 pandemic clearly highlights how inextricably linked human welfare and nature are. Preparations are in full swing to form a new global plan to tackle the alarming rate of biodiversity loss worldwide, the so-called “sixth mass extinction”. Most of the world’s states are preparing this year to agree on a new set of global targets to halt the ongoing decimation of the world’s biodiversity. So far, global biodiversity targets have largely been unmet, arguably failing to gain enough political or societal attention for sufficient action to be taken to bend the curve of biodiversity loss.  Aptly, the 2020 Convention on Biological Diversity (CBD) Conference of the Parties (COP) was scheduled to be held in Kunming, China in late autumn and the dawning of a new post-2020 strategic plan for biodiversity draws our attention back to reflect on the main drivers of biodiversity loss, including unsustainable food production and consumption patterns.

COVID-19 is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).  The SARS-CoV-2 pandemic is a tragic example of what can happen when social-ecological systems are disturbed, with detrimental consequences. The current food system, dependent on a model of industrialized farming practices to provide large quantities of cheap food for a growing global population, has devastating impacts on important wildlife habitats and biodiversity. The current pandemic could be a cautionary tale of things to come, depending on the lessons we take away from this global crisis.  Unless significant changes are made in production and consumption patterns, and changes to the fundamental nature of our relationship with non-human species, we should anticipate further pandemics and other catastrophes resulting from malfunctioning ecosystems.

As we struggle to come to terms with the current pandemic sweeping the globe, an opportunity is provided in our ‘isolation’ and ‘lock down’ for reflection on the way some of us (often as a result of political-economic systems) live.  The upshot of the capitalist system, which manifests on a global scale, results not only in inequalities in access to commodities such as food and water but in exposure to viruses, access to vaccines and health care.  Further, there are issues of inter-species inequalities, humans are just one species among so many on our amazing planet, yet our actions negatively affect other species. This is particularly visible in food production and consumption systems. Increasingly decadent lifestyles in high income countries and the perpetual drive of a global elite to have more and more, for less and less, is pushing the boundaries of our planet and threatening the nature of our and other species’ ‘safe operating space’, as planetary boundaries are transgressed and people and animals exploited.  At what cost do we place this incessant desire for more? We are playing for high stakes and risking not only the survival of countless non-human species but also our own species – including unequal impacts on the most vulnerable in our societies – as the current pandemic highlights.

The likely origins of SARS-CoV-2 is from Chinese ‘wet markets’ selling live and dead animals for human consumption.  SARS-CoV-2 is a zoonotic virus which can jump from the species it evolved with (wild animals), onto new hosts.  The pressures on land use, habitat destruction, as well as illegal trade in wildlife and climate change all lead to the increased spread of viruses such as SARS-CoV-2.  It is important to note, that SARS-CoV-2 is not the first, and most likely will not be the last such virus with the potential to form a pandemic.

The picture of why SARS-CoV-2 has emerged and is now thriving globally is much bigger.  The probable starting point of SAS-CoV-2 was in Wuhan, China where it arrived and spread to humans at the wet market in one of two ways: either through illegal trafficking of wild creatures, for their use as traditional medicine, food (or in some cases pets); or through legal trade in farmed ‘wild’ species.  In recent times, China has seen a huge change in its farming practices. Frequently through processes of land-grabbing, small scale farmers have become marginalised by huge industrialised farms (owned by large agribusinesses and often supported through foreign investment) to grow food for China and global markets.  As a result, smallholders have been driven to farm wild species, such as high-value pangolins, in order to make a living.  As small farmers have been pushed off the most productive land by industrialised farms, to the edge of forests to farm on uncultivated land, the natural evolution of viruses such as SARS-CoV-2 (and nearly two decades previously SARS-CoV) began by making the leap from one host to another (e.g. bat to pangolin). The virus was then transported to the wet markets, and there the second leap was made from non-human to human species.  However, as Morens et al point out, despite its origins in China this is a global concern not solely a ‘Chinese’ problem (as it has been referred to in populist discourse).

Global Production Patterns

In our drive to want more for less, the dominant use of factory farming has become a key way to provide cheap food at the expense of biodiversity, animal welfare and – as it has also become strikingly apparent – human welfare.   Intensively farmed animals of similar genetic makeup, living in very close proximity to each other provide a playground for zoonotic viruses where they can mutate and spread between each other, wild animals and humans, as has been seen not only with SARS -CoV-2 but also avian flu, including H7N9 and H5N1, and swine flu, H1N1.  In order to safeguard against future pandemics, it is paramount that efforts are made to curb the spread of flu viruses through intensive farming practices.

Industrialised farming is not only a concern of China but a hegemonic global concern and recognised by key international treaties such as the 1992 UN Convention for Biological Diversity (CBD) and high-level political agreements such as the 2015 Sustainable Development Goals (SDGs).  Both contain targets and goals which aim to push states towards sustainable food production and consumption patterns that account for the importance and value of biodiversity.  The push for agricultural expansion and intensification is one of the biggest threats to biodiversity globally due to habitat loss and the push for pesticide-dependent, industrial farming systems.

Worryingly, the recent IPBES global assessment shows that little or no progress has been made towards achieving sustainable consumption and production, largely due to the inordinate increase in demand for consumption. A key issue is governance and who is governed.  States are, to some extent, held responsible to fulfil global targets and pledges, but the industries that advertently or inadvertently, create the conditions leading to such pandemics are not held sufficiently accountable. Here, the political stance is that making cheap food at any cost is deemed more important than the healthy functioning of ecosystems or social responsibility. However, when these fundamental concerns are not added into the neoliberal capitalist equation, we really are playing with fire. This is evident in the context of zoonotic viruses as we are witnessing now and more broadly. As Rob Wallace states, ‘chicken isn’t cheap if it kills millions’.  In his book Big farms make big flu, Wallace argues that agribusinesses need to adopt sustainable production practices and be held to account for higher ecological, social and epidemiological sustainability. Changes in production and consumption patterns are also important in broader terms – the importance of nature (and the understanding that we are part of nature too!) needs to be fully taken on board and respected in political, economic and societal spheres in order to maintain a healthy, functioning planet.

Global Consumption Patterns

There is no doubt that many intensive production practices are clear drivers of biodiversity loss, ethically and morally challenging, and can lead to the creation and spread of harmful and constantly changing viruses such as SARS-CoV-2, SARS-Cov, H7N9, H5N1 and H1N1 to name but a few.  As well as holding large scale agribusiness, supply chains, and governments to account, there is a need – and opportunity – to reflect on our consumption patterns and how we are connected with food production.  While food access is highly uneven, overall global food consumption is rising as the world seeks to feed a rapidly growing population. Increasing wealth for many middle and low-income countries has led to a move away from traditional diets to growing meat consumption (see Figure 1).  Godfray et al. (2018) show that the average amount of meat consumed per person globally has nearly doubled in the past 50 years, from around 23kg in 1961 to 43kg in 2014, and middle-income countries, in particular China and others in east Asia, are seeing rapid rises.  A UN report predicts an increase in global meat consumption of 76% by mid-century. This raises serious questions as to how, or if, these gargantuan levels of meat consumption can be achieved in a sustainable or ethical manner that avoids the inherent risks of future spread of zoonotic viruses through farming practices. SARS-CoV-2 is by no means the worst that can be expected, the virus H7N9 kills a third of those infected.

Meat consumption

There are clear disparities and vast inequalities in food consumption globally.  Figures from the UN show that there are 2 billion overweight and obese people in the world, and in alarming contrast, 821 million people are hungry today and an additional 2 billion people expected to be undernourished by 2050.  In spite of this, and the goal to achieve zero hunger by 2050 across the planet, the planet simply cannot support a consumption model in which everyone eats the level of meat and animal products currently consumed in higher income countries. Our diets and consumption of food needs to be re-thought.

Inter-species respect

Chinese wet markets and other intensive farming practices raise serious animal welfare concerns which also reflect humans lack of connection with nature and understanding of non-human species.  Alasdair Cochrane, in his cutting edge book, Should Animals have Political Rights? stresses the need for animals to not only be protected from cruelty of individuals, but also from structures such as industrialised animal agriculture, that cause them harm.  He pushes further than solely the protection of animal rights but argues for their democratic representation, for example, through dedicated representatives in political decision-making fora.

Ingrid J. Visseren-Hamakers makes a strong case for an 18th Sustainable Development Goal (SDG) on animal health, welfare and rights and highlights the need to mainstream the consideration of the individual animal into our thinking on sustainable development, including in relation to sustainable food production and consumption. Visseren-Hamakers argues that:

“We cannot ignore the interests of billions of animals while developing sustainable food systems, enabling sustainable consumption and production, combatting and adapting to climate change, and rethinking our strategies for the conservation and sustainable and equitable use of biodiversity”.

Some may argue such notions are extreme, however we argue that the morality and sustainability of current political and societal patterns around food production and consumption are highly questionable and see the incorporation of animal rights as a basic prerequisite to sustainable development and the bare minimum that is needed. If the intrinsic value of non-human species is fully respected within political, economic and social systems then there would be multiple benefits to our species too, including a safeguard against future global pandemics.

 

The time is upon us to shift the trajectory of this tale, 2020 is a year in which important global decisions are being made by states, in preparation and during negotiations for a post- 2020 strategic plan for biodiversity.  Ambitions in relation to sustainable food production and consumption need to be bold and include sufficient means of accountability, in order to challenge increasingly industrialised farming practices on the grounds of sustainability, equity, public health, non-human health and welfare. Alongside government action, agribusinesses, supply chains and individuals need to play their part and re-think how food can be produced and consumed in a safer and fairer way.

 

 

Trends in Long-term Climate Laws

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In this post Anusha Witt (University of Sussex LLM Environmental Law alumna) discusses the emergence of long-term climate governance frameworks from jurisdictions across the globe which are often the locus for net-zero by 2050 commitments. She points to the evolution of net-zero by 2050 as a legal norm, and poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

               

Introduction

For decades the scientific community have sought to highlight that greenhouse gases (GhG) in the atmosphere as a result of human activity is leading to dangerous levels of warming. We have already reached 1°C and alarmingly climate scientists predict that we will reach 1.5°C between 2026 and 2040. To address this, we need to reduce GhG emissions to zero.

The Paris Agreement provides an international framework to respond to this, it calls on Parties to pursue efforts to limit warming to 1.5°C and sets a target achieve this by balancing emissions and removal of GhG from the atmosphere by the second half of this century – frequently interpreted to mean net-zero by 2050.

Given the non-binding nature of international climate law, domestic law provides a critical role in facilitating a transition to a low GhG economy. Long-term climate governance frameworks with similar key features have emerged from jurisdictions across the globe and are often the locus for net-zero by 2050 commitments. They play a critical function by putting a legal duty on States to manage the transition to a low GhG economy. Pointing to the evolution of net-zero by 2050 as a legal norm, this article poses the question: are we reaching a tipping point where net-zero is becoming the accepted standard for climate law?

This question is particularly pertinent given how rapidly climate law is developing, the statistics are compelling, the number of climate change laws in major economies has grown from 40 in 1997 to almost 500 at the end of 2013. The likelihood of climate law being enacted increases with the amount of climate laws passed elsewhere. Knowing this trend this article aims to raise some thought-provoking questions on the governance frameworks we are seeing the commitment to net-zero nested in.

 

UK Climate Change Act

The United Kingdom (UK) became the architect of long-term climate governance frameworks, in 2008, when it enacted its Climate Change Act (UK CCA), aimed at crafting steady but ambitious economy wide decarbonisation, whilst allowing for flexibility. Policymakers are not restricted to making reductions in specified sectors, instead they have the flexibility to choose the most cost-effective path to emissions reductions.

Several features within the CCA combine to form a governance framework, including:

  • a legally binding long-term, scientifically informed greenhouse gas (GhG) emissions reduction target (recently updated to net-zero by 2050) and a mid-term 2020 target;
  • a system of ‘carbon budgeting’;
  • an independent expert advisory panel called the Climate Change Committee (CCC);
  • regular reporting and monitoring requirements facilitate compliance.

The carbon budgets are consecutive, and each cover a period of five years with the CCC advising on the limit for GhG emissions for each budget eleven years in advance. This creates a system of policy back casting, whereby policy decisions that are made today (to remain within the carbon budget) are consistent with reaching the long-term target. With each budget more ambitious than the last, the intention of the governance framework is to allow policymakers to chart a steady but progressive course towards the long-term target.

 

Other long-term climate governance frameworks

Since the advent of the UK CCA a proliferation of long-term climate governance frameworks with similar features to the CCA have been enacted in other jurisdictions. Notable examples include: France, Norway, Finland, Ireland, Sweden, Mexico, The Netherlands, Denmark and New Zealand, who have all enacted long-term climate governance legalisation with similar features to the CCA, while Spain, Australia, South Africa and Malaysia (among others) are in the process of developing similar legislation.

 

Comparing national frameworks

Climate Laws in Europe: Good Practices in net-zero management’, provides a comprehensive and up-to-date global picture of this rapidly evolving landscape. As the authors remind us ‘no two climate laws are the same, the frameworks tend to draw on a set of common elements, such as targets, planning, measures, monitoring, public participation and scientific advisory bodies.’

Each of these instruments have a long-term target, however the picture is varied. For the UK, France, Denmark and New Zealand, the target is net-zero by 2050. Both Sweden and Finland are even more ambitious having legislated for net-zero by 2045 and 2035 respectively. Whilst the draft laws in Spain and Australia both have net-zero commitments. Each of these instruments also have their own unique aspects.

Sweden’s Act adds fiscal responsibility to its governance framework through provisions to align climate policies and budgetary decisions and a climate report to be presented with the yearly budget bill.

Australia, with its high susceptibility to climate impacts, requires a climate change risk assessment to assess the current and future effects of climate change on the economy, society, agriculture, environment, and ecology, to identify the most significant risks based on their severity and to assess the need for a coordinated response. The assessment is to be carried out once every five years. The recent catastrophic bush fires serve as a reminder of why this provision is important for the safety of society and the economy. In Australia there was widespread public outrage that leaders in emergency services had repeatedly raised concerns that the bush fire season was bound to be far more severe than usual due to prolonged drought. However, these risk warnings were largely ignored. Assessing the need for a coordinated response to future risks is particularly pertinent given Australia’s federal system of government with different structures for emergency services across States and Territories. Given the transboundary nature of climate change, assessing the need for a coordinated response to climate induced risks seems particularly pertinent and has been a key ask of government in the aftermath of the fires.

The French ‘Energy Transition Law’ stemmed from a public debate around concerns with nuclear energy and has a strong provision for public consultation. The intent is to enable citizens to be key drivers of the transition. The importance of this cannot be underestimated, in France, we have seen citizens making their voices heard loudly and violently through the des gilets jaunes (yellow vest movement). The movement originated from concerns about rising fuel costs due to a fuel tax aimed at emissions reductions. The experience of France illustrates the importance in increasing public awareness of the reasons why transitioning is critical, ensuring the transition is inclusive and that all sectors of society (particular high emitting sectors and those already economically vulnerable) are included in decision making and planning. Ireland also has a social dimension to its Climate Action and Low Carbon Development Act 2015, which includes the concept of a just transition.

Both public participation and strong mechanisms to ensure a just transition are critical, particularly, given the current COVID-19 crisis. The global economic impact of COVID-19 remains to be seen, but it is clear it will exacerbate existing societal inequalities and it is from this shaky ground that we will need to craft economy wide decarbonisation.

 

International Climate Governance Frameworks

The EU framework

Recently, the European Union published its proposal for a Climate Law with a net-zero by 2050 commitment. The significance of the EU announcing its commitment to net-zero by 2050 cannot be understated, the EU are supporting the momentum behind net-zero and raising the bar of ambition globally before COP 26 (the 26th Conference of the Parties to be attended by countries that signed the United Nations Framework Convention on Climate Change – which the Paris Agreement complements and falls under). The EU has also adopted a long-term governance framework with similar key features to the aforementioned national climate laws and within which its net-zero commitment lies. The European Commission has extensive reporting and monitoring requirements one of which is to report on progress to the European Parliament, within six months of the global stocktake required under the Paris Agreement. Creating an additional layer of accountability in that poor performance may be seen as a reputational risk for the EU’s leadership image and reinforcing the legitimacy of the Paris Agreement by timing EU domestic decisions to international mechanisms. Interestingly, the EU adds another dimension to the framework by complementing it with the European Green Deal which adds an economic package to accompany the framework and support a just transition.

 

Paris Agreement

The Paris Agreement illustrates that borrowing of legal concepts between jurisdictions is not confined to horizontal diffusion between national jurisdictions, but we can also identify vertical diffusion between international law and national law.

The Paris Agreement exhibits similar features to the aforementioned climate governance frameworks:

  • It has a long-term goal (to keep the global temperature increase to well below 2°C and pursue efforts to keep it to 1.5°C) and encourages long-term action by calling on countries to produce long-term low GhG emission strategies by 2020.
  • It places an obligation on Parties to submit Nationally Determined Contributions (NDC), every five years in which Parties detail their GhG emissions reductions targets to contribute to meeting the temperature target. Like the UK CCA carbon budgets, Parties are expected to rachet up ambition with each NDC.
  • Lastly, the Paris Agreement is flexible in that it does not prescribe how nation states need to reach the long-term goal they are free to choose the most appropriate path for their context.

Whilst there are many factors that influenced the architecture of the Paris Agreement, there appear to be some clear similarities between long-term governance frameworks and the Agreement. If COP 26 goes ahead this year it will be a critical year for the Paris Agreement. We are five years on from its initial signing, countries’ initial pledges to meeting the temperature goal will be reviewed and countries are expected to raise the ambition of their NDCs.

 

Net-zero by 2050

An increasingly common feature of long-term climate governance frameworks is the provision for net-zero by 2050. Article 4.1 of the Paris Agreement is frequently interpreted as an objective to achieve net-zero emissions globally by 2050. Whilst, its legal root can be found in the Paris Agreement, it is no surprise net-zero  found its way into the agreement – it was conceived and documented by influential people in the world of climate diplomacy well before the negotiations began.

Despite this, the net-zero provision ended up being somewhat hidden in the Paris Agreement. Hidden, because it was one of the components Small Island States (among other proponents) had to compromise on in the negotiations. Instead of appearing explicitly as a net-zero by 2050 commitment it is phrased much more loosely:

‘In order to achieve the long-term temperature goal set out in Article 2, Parties aim to reach global peaking of greenhouse gas emissions as soon as possible, recognizing that peaking will take longer for developing country Parties, and to undertake rapid reductions thereafter in accordance with best available science, so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century, on the basis of equity, and in the context of sustainable development and efforts to eradicate poverty.’

The interpretation of this article as a net-zero commitment is explained by Matthias Duwe:

‘Article 4.1 specifies that this goal requires a global emissions trajectory that starts with a “global peaking of greenhouse gas emissions as soon as possible”, followed by “rapid reductions”. This should lead to “a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century”, which can be interpreted to specify global carbon neutrality after 2050.’

There is widespread momentum behind net-zero from numerous civil society actors, who are pushing countries to adopt the commitment. It’s not just countries that are adopting net-zero –  states, cities, sports teams, even fossil fuel companies are taking up the challenge, with BP recently announcing that it has committed to reaching net-zero by 2050. Which invites the question: what does net-zero actually mean?

 

What does net-zero by 2050 mean in practice?

Net-zero by 2050 means that all GhG (that a country chooses to include in their target) are reduced by at least 100% of the level they emitted in the year or base period (the average over several years) they choose as their baseline. If the country still emits GhG after 2050 they need to find a way of offsetting those emissions so that they are stored (for example through carbon sinks) and are not released into the atmosphere. As Josh Burke explains, ‘In contrast to a gross-zero target, which would reduce emissions from all sources uniformly to zero, a net-zero emissions target is more realistic because it allows for some residual emissions.’

Different actors have adopted different interpretations of net-zero, for example the UK’s net-zero target currently excludes emissions from the UK’s share of international aviation and shipping. New Zealand includes all greenhouse gases except biogenic methane. Many actors allow for net-zero targets to be met through the purchase of carbon credits from abroad – which is not without controversy.

 

Conclusion: the future of long-term climate laws

It is clear that legal ideas travel between jurisdictions. Finnemore and Sikkink describe a process where norms reach a ‘tipping point’ in which a critical number of key States adopt the norm and it becomes the accepted standard. Is net-zero by 2050 becoming the accepted standard of climate laws?

Finnemore and Sikkink also explain that before a norm becomes the accepted standard some States may adopt it for purely strategic reasons, perhaps in this case to be seen to be acting on climate change. They stress that once the tipping point is reached it becomes the benchmark through which actions are evaluated and justified.

Civil society actors are celebrating long-term climate governance frameworks (with a certain level of ambition) as ‘Paris Compatible’ and therefore in line with international law. Whilst it is clear that long-term climate laws play a critical function by putting a legal duty on States to manage the transition to a low GhG economy, as we have seen it depends on how the State choose to interpret net-zero. Even if all States adopted the net-zero target (and met it) it may not necessarily mean that warming stays below 2 degrees. Indeed, civil society groups are advocating that net-zero will need to be achieved earlier than 2050 to avoid the worst impacts of climate change and are placing increasing pressure on governments to accelerate action.

 

Principles into Practice: Protecting Offensive Beliefs in the Workplace – by Amir Paz-Fuchs

[Republished with permission from the UK Labour Law blog]

 

Over the past two decades, there has been a growing interest in the impact of human rights discourse on the employment relationship and employment rights. In particular, in light of the increased opportunity, or risk, of the public exposure of an individual’s life outside of work, more attention has been drawn to the implications of employees’ private life to their place of employment.

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Image by xuanklpt from Pixabay

For progressives, the interest in preserving and protecting one’s right to privacy happily overlapped, for many years, with the substantive actions that the demand for privacy protected. In other words, progressives were determined to stand by the claimants and, where relevant, criticise courts that did not do so, not only in the name of privacy, but also because we/they asserted that the claimants in question did nothing wrong to begin with. Thus, in Pay v Lancashire Probation Service, a probation officer was dismissed because of his involvement in a business venture that was connected to sado-masochistic activities. In X v Y, a gay man was cautioned and placed on the Sex Offenders Register after a policeman arrested him for engaging in sex with another man in a public toilet. In Saunders v Scottish National Camps, the employee’s homosexuality was deemed sufficient grounds for dismissal. In Crisp v Apple Retail UK Limited [2011] ET/1500258/11 an employee was dismissed after he posted a critical appraisal of the new iPhone. And in Mathewson v RB Wilson Dental Laboratory [1989] IRLR 512 EAT the employee was dismissed after being caught in possession of cannabis. In all those cases, the employers’ decisions were upheld by the courts, and these decisions were criticised for neglecting to respecting an employee’s right to privacy, which should be constructed in a way that would ‘protect individuals from employer domination’.

In all these cases, it would seem that the liberal, progressive intuition recoils not only from the conclusion that homosexuality and the private use of cannabis can be grounds for dismissal, but even that they should be the subject of severe moral condemnation.

I thought of these cases recently, following the aftermath of the football match between Manchester United and Manchester City, in which City fans were caught on camera racially abusing United players. The Football Association investigated, and a man was quickly arrested for racially aggravated public order. So far, so reasonable. But the story took a peculiar turn, at least for me, when it was reported that the individual was identified as working for a construction company – Kier Company – which was quick to suspend him, citing the company’s ‘zero-tolerance policy towards any racist and discriminatory behaviour’.

It is here where I became slightly uncomfortable. And perhaps it is worth saying that my discomfort is, in no way, meant to minimise the, quite frankly, terrible times we are currently facing in this country. I could not agree more with the charge that the way politicians, including the Prime Minister, address the issue of migration, fuels this hateful vitriol.

But, those politics notwithstanding, the pertinent question is: should such behaviour, which occurred, of course, outside the workplace, have employment ramifications? Two of the main arguments that favoured the claimants in earlier cases – privacy and freedom of speech – clearly apply here as well. If we (as progressives) are to be taken seriously about our principled claims, i.e. that human rights should apply in the workplace even when the employer does not hold the same progressive values, we should be ready to bite the bullet and apply the same principle when those acts are offensive, and are clearly such that we (as a society) wish did not exist.

This position, simple as it may sound, must confront several objections. First, it is argued that we want to allow employees who express racist views, and hate speech in general, to be dismissed because we want to eradicate those expressions in society. ‘Society’ does not tolerate those views in this day and age. However, this view falls into a couple of familiar traps. First, the historical one: LGBT employees, and those with questionable morals (like the adulterous employee who lost her job for that reason in Spiller v Wallis) suffered from their divergence from public norms at the time, in a way we (justifiably) scoff at now. Of course, we feel that racism and homophobia are different, and that they truly should be eradicated, but some humility should guide us to assess the historical analogies. Second, there is the utilitarian argument: do we really think that sanctioning, shaming and publicly ostracising such behaviour would facilitate its eradication? There is a strong argument to suggest that it would only lead individuals harbouring those inclinations to go underground, feel victimised and even, at times, start wearing their foul opinions as badges of pride. There are examples for all of the above. This, in other words, is the argument that has at its axis the free speech of employees, and finds its justifications in the rationales of free speech in general. And yet, the workplace is a unique micro-cosmos, where people are forced to interact on a daily basis, and where concepts such as (industrial) democracy and (managerial) prerogative are deployed by way of analogy to the relationship between citizens and governments. And yet, those are still analogies, and the different context should be acknowledged.

So if we are to contextualise further, we find that there is a more sophisticated counter-argument to the one just discussed. That is, instead of focusing on public morals and public norms, one can place the centre of gravity on the employer’s values, as expressed by Kier Co (‘zero tolerance policy towards any racist and discriminatory behaviour’). Surely we cannot bar an employer from advancing such a laudable policy in her own workplace? I was considering this issue when a case just published – Forstater v CGD Europe – generated plenty of heat.

In this case, a public policy researcher who had a consultancy agreement with a not-for-profit think tank claimed that the respondent refused to renew her contract because of comments she had made on Twitter, etc expressing her beliefs about trans issues. The tribunal’s decision was limited to the preliminary question of whether the claimant’s beliefs qualified for protection under the Equality Act 2010 section 10(2) as any religious or philosophical belief in accordance with the Grainger criteria (which, in turn, relied on the ECtHR case of Campbell and Cosans v UK, which concerned corporal punishment. In particular, the tribunal found that the claimant’s belief faltered on the fifth, and final, criterion, namely: a belief that ‘must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. The tribunal did not consider in this preliminary hearing any question of unfair dismissal or the application of the Human Rights Act 1998 (including the rights to privacy and freedom of expression, although the latter was mentioned in brief [74]).

Why did the tribunal find that Forstater’s views are incompatible with human dignity and the rights of others? Probably the most problematic of those beliefs, from the tribunal’s point of view, is the claimant’s (factually incorrect) assertion that there are only two sexes in nature – men and women, along with the position that, from the claimant’s point of view, a person cannot transition from one sex to another [84-85]. The tribunal emphasised, at some length, the fact that the first position is scientifically misguided, and the second is legally mistaken. While it is true that the claimant was, in fact, mistaken on both counts, it is not clear how these mistakes affect her power to hold those beliefs.

Starting with the latter – a person is perfectly entitled to dispute any position taken by the legal system at any time. In fact, many academics have made a career, and scores of activists made history, by doing so. It is true that British law recognises a person’s right to transition and gain a Gender Recognition Certificate. The claimant recognised the legal state of affairs but held that this was a ‘legal fiction’ because a man can never truly become a woman, and vice versa [84]. This, perhaps, is an immoral belief, but it is not undermined by the fact that it contests the current state of affairs. One can think, for example, of (radical, for the time) 18th century advocates for women’s rights who argued that a man’s ownership over a woman is ‘legal fiction’, whilst still acknowledging the practical consequences of that fiction.

And as for the former, clearly the factual veracity of a position is not a precondition for its protection, or else no religion would overcome such an obstacle. And whilst we’re analogising ‘religion’ and ‘belief’, shouldn’t we pause to consider how the fifth criterion, on which the claimant’s belief failed (in a manner that it is controversial in itself), should have barred any of the three major, monotheist religions from protection? In other words, it would seem that as a belief (as opposed to a manifestation of a belief – more on that below) – the claimant failed in her quest for protection because she grounded her positions in her understanding of feminism and the protection of women and girls. However, if she were to ground her position in the tenets of a major religion (e.g. Christianity or Judaism) – it would have been very clear that the religion itself would be covered by the scope of the Equality Act. This distinction between political (or ideological) beliefs and religious beliefs seems, indeed, arbitrary. The question would then turn to the manifestationof the belief. This, I would argue, should have been the focal point of the tribunal’s analysis here as well. Alas, no such discussion is apparent.

Indeed, while the tribunal offers a detailed account of letters and tweets by the claimant, there is not even one occasion in which the claimant’s beliefs are asserted to have targeted a colleague in the workplace. For example, she repeated the need to be polite to others, including referring to all people using the pronouns they prefer; and argued for a ‘broader national conversation about how to reconcile the welfare of people who seek treatment for gender dysphoria and the basic human rights of women and girls’. In other words, this is an occasion where the right to privacy and the right to freedom of speech should have been front and centre to the analysis. And yet, the latter is only mentioned, and its impact is not assessed; whereas the former isn’t even mentioned. Moreover, I would argue that the right to privacy (in this sense – the separation of work from life outside of work) is the more important of the two.

Thus, I believe that the court in Smith v Trafford Housing Trust was absolutely right to conclude that the employer wrongly demoted a housing manager who posted on his Facebook wall a post in opposition to gay marriage. Crucially, Briggs J focused on the fact that the post could not be attributed to the manager’s employer, that he used moderate language and never offended any employee in their interaction with them. Pace Paul Wragg, I don’t find this analysis to be ‘intellectually unsatisfying’ in the least. Quite the contrary. It would be quite problematic for an employer to ignore, in the name of free speech, hate speech of one employee towards another. Indeed, just as acts that may be classified as hate speech can and should be addressed by the state, and prosecuted accordingly (see the very recent ECtHR case of Beizaras and Levickas v Lithuania, with thanks to Virginia Mantouvalou for the reference), it would seem implausible for an employer to ignore similar speech if it happens within the workplace, leading other employees to feel unsafe, and justifiably so. But if such speech happens outside the workplace, it is the preserve of the government to act against those individuals.

Returning to the case at hand: if an employee, such a Forstater, suffers a detriment for actions that happened outside the workplace, the only conclusion that one can reach is that she is sanctioned for her beliefs, and not for the manifestation of those beliefs. To repeat, the claimant asserted that she ‘would of course respect anyone’s self-definition of their gender identity in any social and professional context’. And no examples were given that she behaved differently.Similarly, to close circle on the case of the Manchester derby – whilst it could be that the City fan does harbour racist beliefs, his employer gave no indication that those beliefs were manifested in the work environment.

Sanctioning someone for their beliefs is a dangerous road to follow. I have consistently taught my students that there are very few absolute rights, of which the ‘right to freedom of thought’ is one (a position accepted by the Equality and Human Rights Commission). An employer has a right, indeed a duty, to protect the work environment, to enhance inclusivity and tolerance, and make sure that all are felt welcome. When realising that some workers are (surprise, surprise) impacted by the relentless torrent of hateful narratives coming from the tabloid press and the highest political echelons, but do not act on them in a way that affects others in the workplace, employers should not respond by removing such workers from employment and into victimhood. The authoritarian control of employers, which John Gardner and Hugh Collins recently alluded to, is wide enough within the workplace, and should not extend to ‘thought control’. And as Collins and Virginia Mantouvalou wrote, apropos Redfearn v UK, ‘a democracy cannot eliminate obnoxious views by permitting the imposition of economic hardship through dismissal’. Instead, employers should have the courage of their convictions, opt for opening the discussion, through training and dialogue. That is where their social responsibility lies and so, I would argue, is where the law should be.

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Amir Paz-Fuchs is Professor of Law and Social Justice at the University of Sussex, where he teaches Employment Law and is Director of Sussex Clinical Legal Education.

 

 

(Suggested citation: ‘A Paz-Fuchs, ‘Principles into Practice: Protecting Offensive Beliefs in the Workplace,’ UK Labour Law Blog, 12 February 2020, available at https://wordpress.com/view/uklabourlawblog.com).

The Istanbul Convention and Its Standalone Right to be Free from Violence: Feminising the Subject of Rights?

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In this post Dr Gizem Guney (Doctoral Tutor in Law and Sociology at the University of Sussex, and recent PhD graduate) analyses the Istanbul Convention, with a specific focus on its recognition of the ‘right to be free from gender-based violence’ as an independent and standalone human right. Examining the potential implications of this approach within the women’s rights framework, she questions whether this could be a step forward to reconstruct the male subject of rights.

 

The Istanbul Convention in Context

We have left behind 2019 with a worrisome level of gender-based violence against women (VAW) across Europe, alongside the evident failure of domestic laws to address the problem efficiently. The Council of Europe Istanbul Convention remains the most prominent legal tool to address VAW in Europe, as the first legally-binding treaty specifically devoted to all forms of VAW (and domestic violence) within the European human rights framework.

Although the Istanbul Convention entered into force only five years ago, it has already been acceded to by a high number of Council of Europe member states (at the time of writing, 45 signed and 34 ratified). With this high rate of accession to the Convention, one could claim that the Istanbul Convention has proved its potential for reconstructing gender policies across Europe.

At this point, it is noteworthy to underline that the UK is one of the countries which has not yet ratified the Istanbul Convention. Although the Convention was signed in 2012, and the former SNP MP Eilidh Whiteford’s Bill, which requires the Secretary of State to produce an annual report each year setting out the steps to ratify the Convention, passed in 2017, legal reforms are still needed to align UK laws with the Convention. One provision of the Convention (Article 44), which obliges states to prosecute criminal conduct even when that conduct is committed outside their territory (extra-territorial jurisdiction), has been particularly contentious in the UK context.

The Domestic Abuse Bill, which aimed to close the normative gap in UK law with regards to the Istanbul Convention (including extra-territorial jurisdiction) fell due to the prorogation of the parliament last year. Despite campaigners emphasising the pivotal nature of the Bill and Boris Johnson’s promise to bring it back, considering the current ambiguity around European laws in the context of Brexit, there is enough reason to not hold one’s breath for the resurrection of this Bill in near future.

Nevertheless, the potential of the Convention is worthy of discussion, particularly its recognition of VAW as an independent human rights violation. The rest of the article focuses on this.

The Istanbul Convention’s Recognition of VAW as an Independent Human Rights Violation

There are many firsts that the Istanbul Convention achieves, at least in theory, yet its practical success remains to be seen. In this article, I explore particularly Article 3(a) of the Convention, which defines all forms of VAW and domestic violence as both a form of ‘discrimination’ against women and a ‘human rights violation’. In doing this, the main focus is on the potential implications of defining VAW as a ‘human rights violation’, together with a brief commentary on the Convention’s approach to ‘discrimination’.

Starting with the discrimination aspect, the Convention identifies VAW as a form of discrimination against women on the grounds that VAW is a manifestation of historically unequal power relations between women and men, and therefore a structural problem. What is striking here is that the Convention brings this discrimination reading without any need for proof, such as the unequal treatment of women before the law or the evidence of women being disproportionately violated.

This is not the first time that the discriminatory nature of VAW has been established within the structures of human rights law. In its 1992 General Recommendation 19 the monitoring body of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) made the link between inequality and VAW, and consequently found the violation of CEDAW in VAW and domestic violence cases, although CEDAW originally did not make any reference to VAW.[1] Similarly, and for the first time, the European Court of Human Rights (ECtHR) found the violation of Article 14 of the European Convention on Human Rights (prohibiting discrimination) in the landmark 2009 domestic violence case of Opuz v Turkey.[2] The discrimination approach of the Istanbul Convention towards VAW is therefore not novel, but essential in the sense that the discriminatory nature of VAW is being confirmed for the first time in a ‘legally-binding instrument’ in Europe.

I would like to focus in particular on the implications of the Convention in its confirmation of VAW as an independent human rights violation. VAW had previously been found by other human rights bodies to have led to the violation of numerous rights such as the right to life, the right to be free from torture, the right to privacy and so on. This was mainly due to the normative gap in the human rights treaties regarding VAW, namely the lack of a VAW provision in human rights instruments. VAW incidents therefore had to be handled under these gender-neutral human rights.

At this point, we should remind ourselves of the well-established feminist critique arguing that, under the disguise of gender-neutrality, rights are actually gendered. It is not possible to cover the critique in detail here, but it is necessary to establish that:

  • Liberally constructed (gender-neutral) rights exclude women’s gendered problems in their origin and prioritise male interests.
  • In other words, rights are constructed only with the imagination of men as right-holders, and with the aim to address men’s common concerns.
  • Rights are constructed to a male standard and therefore the subject of rights is men.

The Istanbul Convention defines VAW as a human rights violation in itself, in its very own nature, without leaving VAW having to fit in other (gender-neutral) rights categories. VAW had been previously identified as an independent human rights violation in the Organization of American States, via the 1994 Convention of Belem do Para, the first regional treaty that specifically handled VAW. However, the Istanbul Convention is the first legally-binding treaty carrying this onto the European context.

It is important to mention that the journey to this confirmation in the Convention was not an easy one. In the drafting process, some delegations insisted that violence against women merely formed an obstacle for women to fully realise their human rights, instead of being an explicit human rights violation in itself. For example, the United Kingdom suggested the removal of Article 3(a) of the draft Convention, which categorised violence against women as a human rights violation. It proposed this article be replaced with the statement that ‘[v]iolence against women constitutes a serious obstacle for women’s enjoyment of human rights’. This proposal was heavily criticized by Amnesty International in its report, ‘Time to Take a Stand’, which opposed these amendments on the grounds that they could potentially weaken the effect of the Convention.

Deconstructing the ‘Male’ Subjects of Rights?

The questions to be asked then are:

  • Why is this identification of VAW as an independent human rights violation important?
  • What is the message given by the drafters of the Istanbul Convention by this?
  • And, what are the potential implications of this approach in practice?

This outright recognition of the standalone ‘right to be free from VAW’, besides its symbolic value, leads to important legal implications. As the previous president of the monitoring body of the Convention, GREVIO (Group of Experts on Action against Violence against Women and Domestic Violence), said to me in an interview, this recognition means that the ECtHR and other human rights law bodies are likely to take the issue of VAW more seriously.[3] The Convention does not leave any room for dispute as to whether VAW is a human rights violation.

This confirmation also allows victims to invoke states’ responsibility to prevent, investigate, and prosecute gender-based violence on stronger and more secure grounds. Recognising the issue as a violation under international law narrows states’ freedom to determine the manner in which they handle VAW within their jurisdictions. It therefore impedes states’ tolerance of the phenomenon, i.e. a failure to address it on effective and appropriate grounds.

As Paulina García-Del Moral and Megan Alexandra Dersnah state, ‘[t]hough the power to enforce those rights lies with the state, the ability to claim rights still has legitimising functions’. As a result of deeming VAW a human rights violation, and thus transforming the language of politics, women have a stronger hand when seeking protection against such violence, which is ‘less about whether or not states will immediately comply with the decisions of institutions (but) more about the extension of what women can demand’.

Looking at the issue from a theoretical point of view, the recognition of VAW as an explicit form of human rights violation strongly challenges the male standard of liberally constructed rights. In fact, by recognising the unique harm that results from gender-based violence (which disproportionately affects women) as a wrong in itself, the Istanbul Convention reveals a shift towards an approach whereby women’s gendered problems are handled in explicit terms, and are not left to be addressed under rights which were drawn in a gender-neutral sense, but ultimately promote male interests. This serves the feminist aim of deconstruction of the male standard within law.

This declaration of the Istanbul Convention does not impede other human rights law bodies, like the ECtHR, from addressing domestic violence cases by reference to other violations of rights contained in the instruments that they supervise, such as the right to be free from torture or ill-treatment, the right to privacy or the right to life. On the contrary, it will strengthen the grounds on which to find these violations. However, to recognise VAW as a human rights violation in itself, within a legally-binding treaty, demonstrates that the human rights law framework has finally reached a point whereby a gendered problem against women is directly integrated into the scope of human rights violations. This is a departure, in terms of the subject of rights, from a male to a female standard.

Concluding Remarks

It is perhaps too early to make conceptual and assertive evaluations on such a young instrument as the Istanbul Convention. Over time, the extent to which the Istanbul Convention will have affected state policies and laws, as well as international human rights responses to VAW, will be more visible and measurable. Undoubtedly, the ongoing state report mechanism, which is supervised by GREVIO, will help clarify the picture. It can, however, still be argued that the Convention has the potential, not only to lead states making necessary legal reforms regarding VAW, but also to deconstruct and redefine the gendered foundations of human rights, which have long subordinated women.

[1] In the context of domestic violence cases, see AT v Hungary (CEDAW Committee, 26 January 2005) Com No 2/2003, UN Doc A/60/38 (2005); Goekce v Austria (CEDAW Committee, 2005) Com No 5/2005, UN Doc CEDAW/C/39/D/5/2005 (2007); Yıldırım v Austria (CEDAW Committee, 2005) Com No 6/2005, UN Doc CEDAW/C/39/D/6/2005 (2007); VK v Bulgaria (CEDAW Committee, 2011) Com No 20/2008 UN Doc CEDAW/C/49/D/20/2008 (2011); Isatou Jallow v Bulgaria (CEDAW Committee, 2012) Com No 32/2011 UN Doc CEDAW/C/52/D/32/2011 (2012); Angela González Carreño v Spain (CEDAW Committee, 2014) Com No 47/2012 UN Doc CEDAW/C/58/D/47/2012 (2014).

[2] Opuz v Turkey App no 33401/02 (ECtHR, 9 June 2009).

[3] Interview with Feride Acar, then President of Group of Experts on Action against Violence against Women and Domestic Violence and Retired Professor of the Faculty of Economic and Administrative Sciences in METU (Ankara, Turkey, 18 January 2017).

 

The politics of evidence: ‘Doing nothing’ about LGBT health inequities by the WHO

Po-Han Lee

In this post Dr Po-Han Lee (Doctoral Tutor in Sociology and Law at the University of Sussex) summarises key findings from his recently completed PhD in Sociology, which examines international inaction in the face of the health disparities of sexual and gender minorities.

 

How is ‘nothing’ produced and justified, and how is it functioning? Here, I will take a multilateral debate in the World Health Organisation (WHO) over the issues regarding health inequities experienced by sexual and gender minorities (SGMs) as an example.[1]

On request by the US and Thailand, the WHO Secretariat produced a report on LGBT health in May 2013 for the Executive Board (EB) – the organ authorised by the WHO Constitution to adopt policy agenda for the WHO governing bodies especially the annual World Health Assemblies. That was the very first time that the LGBT health issue had been put on the table in the WHO governing body. The debate was an intense one, lasting more than six hours, and in the end, the agenda item was removed from the final agenda, and kept only as a footnote. In May 2015, the footnote was deleted for good, and after that, an interstate informal consultation was pursued by Colombia.[2] However, the working group failed to achieve any consensus either. Since then, the topic has never been brought up again.

Geographically, the WHO divides the world into six regions – each has its own governing body and a committee with regard to health affairs on the regional level. The degree of development of LGBT health issues varies across different regions. The Pan American Health Organisation is the most active one; it has recognised sexual orientation as a social determinant of health (Res. CD50.R8). It adopted another resolution (CD52.R6) addressing the causes of LGBT health disparities in October 2013 after the discussion in the EB was suspended. In the Regional Committee for Europe, it was discussed in the context of the Health 2020 policy framework. LGBT populations are referenced only in relation to HIV/AIDS response and prevention by the Regional Committees for the Western Pacific and for South-East Asia. In the Regional Committees for the Eastern Mediterranean and for Africa, nothing is mentioned at all.

At the debate between members of the Executive Board in 2013, the reasons for removing the agenda item included:

  1. a lack of capacity for the WHO to address politically sensitive human rights issues, which had been addressed by the UN human rights bodies;
  2. a lack of consensus between states on what health issues should be prioritised;
  3. a lack of a universally agreed definition of affected communities, ‘LGBT people’ in this case; and,
  4. a lack of evidence regarding the existence of the health inequities in question.

In those meetings, member states employed many human rights notions, but eventually they decided that the WHO should step away from other human rights concerns, as if the right-to-health issues could be addressed in isolation. This suggests that these states were not committed to the so-called human rights-based approach to global health governance, although they had spoken a great deal in the language of human rights.

Can no-evidence say anything?

The WHO member states involved in the debate in the end made an unusual decision, which was to ‘do nothing’ about the health disparities experienced by SGMs. That decision is particularly relevant to the power of official and expert discourses regarding knowledge production in health research. That is, the inaction was taken and justified based on the fact that the epidemiological science had not proven the existence of SGM health inequities yet.

Among those ‘lacks’ mentioned above, I will focus on the assertion of lacking evidence. In this regard, in terms of theoretical and methodological approaches, the sociological interrogations concerning ‘absence’ and ‘ignorance’ would be useful; they have critically identified the symbolic meanings of non-existence and non-knowledge as well as the socio-political organising and functioning of such. Deconstructing the notion that ‘we don’t have enough proof’ enables us to argue that what ‘no evidence’ shows is no less than what evidence does.

On the one hand, it is that ‘queer trouble’ makes a comprehensive survey concerning the health of SGMs almost impossible. Out of the different understandings regarding sexuality and gender between health and social scientists, it is very difficult to define SGM populations across societies. In short, there are too many ways of naming queer people due to their diverse locationalities considering the dominant culture of the place where they live. This conceptual difficulty informs us that, on the one hand, the social determinants of health may be universal, but are context-sensitive as applied, and on the other, related studies are hardly achievable without generalising the population under research. Even the researchers themselves would have to acknowledge this partiality in the research process.

It is true that SGM health is far from simply a scientific question, especially if we consider the situations in which SGM members are afraid to see a doctor and face persecution, let alone voluntarily accepting to be studied. This has exposed the limits of evidence-based public health when the target populations are hard to define, and even harder to reach in many societies. That is to say, the nexus between the lack of evidence and the lack of definition of queer populations seems inextricable.

Yet, what counts as ‘evidence’?

Yet, it would also be irresponsible to simply blame the lack of evidence on ‘queer trouble’. The real problem in regard to the underrepresentation of queer communities and the misinterpretation of their health information should be uncovered. Here, I am arguing that, other than the troubling definition of queer people, the intended ignorance – due to non-recognition (omissive) and misrecognition (commissive) of SGM communities and hence non-production of knowledge concerning their health – plays a greater role in reinforcing the social and health injustices against them. That is to ask: What counts as evidence? Could it be that the lack of evidence manifests the evidence of health inequity? Namely, the socially constructed ignorance can be seen as the evidence of health injustice. Therefore, it is important to know how not-knowing functions.

In the absence of knowledge that meets professional standards, we shall consider the knowledge coming from local communities. The selection process of and resource allocation with regard to conducting health research may result in the invisibility of the non-recognised and the misrecognised. For example, a Bangladeshi activist stated at the International Lesbian, Gay, Bisexual, Trans and Intersex Association’s Asian Regional Conference (ILGA-Asia) of 2015: ‘Health issues of hijra are always related to social discrimination. We are often denied access to seeing a doctor.’ A Thai transman activist expressed concerns about health professionals’ insensitivity: ‘Most trans health information is accessible only to transwomen…doctors just don’t know what to do with us and our health issues’.[3]

These narratives are rarely documented and used as evidence for health inequity, but they call on us to rethink the absence of evidence in certain places, as reported by the Bangladeshi and Thai governments, for instance. In this light, the tolerance of no-evidence itself could be a form of state-sponsored health inequity. Where there is ‘evidence’, it can be misrepresented in a biased manner. Indeed, the powerless position of queer people is both the cause and the result of the misinterpretation of health data – mainly by governments and mass media.

Local queer activists are ambivalent about the efforts towards making social injustices against SGMs a health issue, while they have suffered a lot from being over-medicalised subjects. This ambivalence is quite salient in Asian societies. At the 2015 ILGA-Asia Conference, an activist from the Philippines stated that: ‘The news about our poor lives attracts audiences for sensational stories’, as if ‘we are ill for being sexually active and self-indulgent’. And, according to a Nepalese activist: ‘The information can be quoted out of context’, when people only read that ‘international studies say we are less healthy’.

Conclusion: Health is political!

After all, do states really presume that there will be ‘enough-ness’ of evidence? Can health inequity research be capable of establishing the causation between any social determinant and one’s health outcome? If not, what do national delegates mean? Observing the debates in the WHO and elsewhere, what certain national governments have been doing is to avoid – by not making anything happen – a potential formulation of future international pressure through global health policymaking and its normative discourse.

Through deconstructing the discourse of a ‘lack of evidence’, we can thus identify the socio-political functions of ignorance and ignoring. That is, they did nothing, not because they didn’t understand and care. Quite on the contrary, it was because they cared and knew too well that health is always political, and yet, it is not just the politics concerning knowledge production and media representation; it is also international politics.

 

[1] In my research, I tend to use the term ‘SGM’ to encompass not only people who identify as lesbian, gay, bisexual and transgender (LGBT) but also those whose sexual practices or gender expressions are considered bad/immoral/abnormal in varied historical and sociocultural contexts. So, SGM and LGBT should not be used interchangeably.

[2] For more information, see the meeting records of the 139th session of EB in 2016, pp. 3-5.

[3] These are my notes taken at the meetings of the sixth ILGA-Asia Regional Conference, held on 28-30 October 2015 in Taipei.