Boris Johnson’s Downing Street refurbishment: might a law have been broken?

Sam Power, University of Sussex

The Electoral Commission has announced that Boris Johnson, the, erm, prime minister of the United Kingdom, is under investigation. Well, to be precise, the Commission will investigate whether any transactions relating to refurbishment undertaken at Johnson’s flat are an offence under political financing law. In fact, in its official statement, the Commission suggested that there are “reasonable grounds to suspect an offence or offences may have occurred”. But what has actually happened here? What are the laws that might have been broken? And why is it a problem anyway?

The row begins, as will be all too familiar in homes across the globe, with a bit of good old-fashioned DIY. Every prime minister gets £30,000 a year in public money to renovate their private residence. The accusation laid at the door of Johnson and fiancée Carrie Symonds is that their works came in at as much as £200,000.

This wasn’t an issue until the prime minister’s former adviser Dominic Cummings entered the fray. He launched a blistering attack suggesting that Johnson planned to have donors (most notably Lord David Brownlow) “secretly pay” for the refurbishment. Adding that it was “unethical, foolish, possibly illegal and almost certainly broke the rules on proper disclosure of political donations if conducted in the way he intended”.

What are the rules?

So if it was (possibly) illegal and did break the rules, what are those rules in the first place? In the main, it is an issue of disclosure. Any donation of over £7,500 to a party or £1,500 to an MP must be declared to the Electoral Commission within 30 days. This rule applies to money that is loaned and also applies to lots of donations that might not look like a simple cash transfer.

So, if you buy an MP a photocopier, if you sponsor meetings and events, if you do paid research, or, indeed, if you provide £58,000 (either as a loan or otherwise) to decorate their house, it needs to be declared. This is the crux of the rule that may or may not have been broken and the questions that the Electoral Commission will put to Johnson and his associates.

Johnson insists that he has paid for the renovations with his own money but continues to evade questions about whether Lord David Brownlow paid for them in the first instance before being repaid. If the money was donated (or loaned) by Lord Brownlow either to Johnson or his party and it wasn’t declared in a timely manner, then electoral law has been broken. There are, of course, legislative complexities but, at the end of the day, it’s as simple as that.

What happens next?

A long investigation lies ahead to get to the bottom of this matter. In terms of outcome, the sanctions the Electoral Commission can hand down are small. It can issue a maximum fine of £20,000 and involve the police if further laws are deemed to have been broken. However, the political damage could be vast.

As well as having (not all that punitive) sanctioning powers, the Commission also has significant investigatory powers. It can call on anyone it likes to give evidence. That might include Symonds, cabinet secretary Simon Case and/or Lord Brownlow. It can subpoena private WhatsApp messages, emails and other evidence and – as the Brexit Party discovered – visit party offices for more information if needed.

The investigation, then, which will run and run, has the potential to be as damaging as any sanctions that might come from it.

99 problems, of which a kitchen is one?

Beyond the legal, there is also the question of tone. In general, no one will deny a prime minister the right to do up the flat that they live in. But defending that right in itself leads to rather awkward situations that can make those in power seem pretty out of touch.

Johnson comes unstuck over his wallpaper in PMQs.

MPs found this during the expenses scandal of 2009, when their claims for lavish decor created the sense that their idea of reasonable costs were far removed from those of the wider public. In this case, one particularly out-of-touch contribution came from Daily Mail columnist Sarah Vine, wife of Cabinet Office minister Michael Gove, who reminded us that the prime minister “can’t be expected to live in a skip”.

“Cash for curtains” is also damaging because it is happening at the same time as numerous inquiries into other potential scandals surrounding lobbying. A drip-feed of revelations has raised significant questions about standards and ethics in public life – and left many with the sense that these are not things the current administration has all that much interest in.

However, there is, as yet, limited evidence of the all-important “public cut through”. The law is complex, and very few people really want to get stuck in to the minutiae of regulating donations. Are MPs inboxes filling up in the same way as they did in the wake of Cummings’ trip to Barnard Castle? Apparently not, yet.

Moreover, mud doesn’t seem to stick to Johnson as easily as it does other politicians. He is no stranger to issues with regards to personal standards of good behaviour and yet continues to be popular. All this may be priced in for voters.

However, we know that things can snowball rather quickly, as they seem to be doing at present. I often think of Johnson’s predecessor, David Cameron – and his rather abrupt downfall – in situations like this. Remember, he was known as the “essay crisis” prime minister. He would always, somehow, get out of a sticky situation at the last minute. Then, one day, he didn’t.

So, whilst you might not bet your house on it being curtains for Boris just yet – the snowball is getting bigger and bigger. And it is rolling towards Downing Street at quite a skip now.

Sam Power, Lecturer in Corruption Analysis (Politics), University of Sussex

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

Why the Framework Convention for the Protection of National Minorities Matters

[This post is by Dr Elizabeth Craig (Senior Lecturer in Law at Sussex) and is republished with permission from her blog Minority Rights – Reflections and Surmises]

I started this blog in part to air some of my frustrations at the limitations and ambiguities embedded within the European minority rights framework. However, I am not a minority rights sceptic. I became interested in minority rights acutely aware of what can happen when minority rights are not respected, and are indeed sometimes trampled over given my Northern Irish upbringing and my knowledge and understanding of events in the Balkans during my teenage years.

I was reminded of this when I read the so-called ‘Slovenian non-paper’ on ‘The Western Balkans – the Way Forward’ this week, essentially predicting the ‘dismembering’ of Bosnia and Herzegovina. I will leave analysis of the significance (or otherwise) of the ‘non-paper’ to those better versed in the politics of the region. However, the subsequent furore really brought home to me why minority rights, and making minority rights work, really matters. In earlier posts I have described some of my recent work considering the role of minority (or community) rights legislation in Kosovo, Bosnia and Herzegovina and North Macedonia. However, in this short piece I want to focus on a different angle – the uniqueness of the Council of Europe’s Framework Convention for the Protection of National MInorities as a regional minority rights treaty specifically focused on minority protection issues.

I have recently subscribed to the International Human Rights Law Reports, attracted by their coverage of decisions of both regional and international human rights bodies. One case that caught my particular interest was that of M.T. v. Estonia, 6 August 2020, Communication no. 64/2018. The application was lodged before the Committee on the Elimination of Racial Discrimination by M.T., an Estonian national of Russian ethnicity and a member of the group of ‘Old Believers’, that had rejected reforms that had taken within the Russian Orthodox Church. His complaint related to the refusal of the authorities to include his patronym on his identity card, despite his specific request for it to be included. This is a right expressly recognised in Article 11(1) of the Framework Convention for the Protection of National Minorities, which provides that: ‘The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname (patronym) and first names in the minority language and the right to official recognition of them, according to modalities provided for in their legal system.’

The CERD Committee found the complaint inadmissible on the grounds that no concrete example was provided of the refusal putting the applicant in an unequal position with other nationals in relation to the enjoyment of his rights, or evidence of negative effects on his private relations with other members of either the Russian minority or of the Russian ‘Old Believers’ community (para 6.4). As David Harris has pointed out in his commentary, this was not an inevitable conclusion given the applicant’s claim that the refusal was contrary to ‘Russian traditions’ and therefore might have been considered discrimination in relation to the right of freedom of expression under Article 5 of CERD.

What is of particular interest to me in the case is that the applicant cited Article 11 of the Framework Convention for the Protection of National Minorities both in domestic proceedings and before the CERD Committee. In its response the State noted that the Framework Convention did not fall within the scope of the Convention or the competence of CERD and that there was no specific right in the Convention, including under Article 5, that would serve as grounds for his request (para 4.3). The Committee itself found that the applicant had failed to indicate which exact right had been violated (para 6.3). For me what this decision illustrates is the gap within international human rights law served by the Framework Convention. Rights such as the right to use a patronym might be considered to come within the category of ‘symbolic rights’, but are of fundamental importance to those belonging to minority groups.

Tackling sexual harassment and violence in universities: seven lessons from the UK

[This post is by Alison Phipps (Professor of Gender Studies in the Department of Sociology at Sussex), and refects on fifteen years of work on sexual harassment and sexual violence in UK universities in order to distil seven lessons for scholars, activists and organisers. Originally published at Genders, Bodies, Politics. Edited/updated and republished with permission.]

This is the text of an online keynote I gave, hosted by the Universidad Autónoma de Baja California and the Freie Universität Berlin, on February 5th 2021. It was the last in a series of sessions on sexual harassment and violence in universities; when I was invited to speak, I was honoured but also concerned about what I could offer as a UK-based academic whose work on sexual violence has been focused on universities in my home country. My work started in 2006 with a pilot study at my own institution, and since then I have been involved in a number of research and intervention projects, collectives and campaigns. I thought it would be useful if I tried to distil what I have learned over the past fifteen years for fellow scholars, activists and organisers in other contexts and countries. So here are seven lessons from the UK: I hope some of them will resonate and perhaps help others avoid the mistakes I have made. In fifteen years my work has been characterised more by failure than success: but along the way I have at least learned to fail better.

My first lesson is: name the problem.

Sara Ahmed has written: ‘When we put a name to a problem, we are doing something.’ This doing, in her words, is ‘gathering up what otherwise remain scattered experiences into a tangible thing.’ This gathering up, this making tangible, can allow the thing to be addressed. As James Baldwin famously said: ‘Not everything that is faced can be changed, but nothing can be changed until it is faced.’ It was the UK student movement that made us face the issue of sexual harassment and violence in our universities: in the early 2010s, some amazing young feminists persistently named and worked to address it. I want to acknowledge, amongst others, Kelley Temple, Susuana Amoah and Hareem Ghani, who were all Women’s Officers of the National Union of Students (NUS).

The first national study of sexual harassment and violence against students was published by NUS in 2010. Called Hidden Marks, this was a survey of over two thousand self-identified women students across all four UK nations. One in seven had experienced a serious physical or sexual assault; 68 per cent had been sexually harassed. I worked with NUS on the research, and shortly after the report’s release they commissioned me, with Isabel Young, to research ‘lad culture’ in universities and how that framed sexual harassment and violence.

Isabel and I recruited forty women studying in England and Scotland, for focus groups and interviews. Our participants were very clear on what ‘lad culture’ was: a group dynamic enacted by young men in team sports and on the social scene, characterised by misogynist and homophobic ‘banter’. This ‘banter’ often involved rape jokes and sexual harassment and had the potential to escalate into more extreme forms of sexual violence. Our report, entitled That’s What She Said, theorised ‘lad culture’ as a conducive context for sexual violence. It was launched on International Women’s Day 2013.

That’s What She Said entered a climate in which women were ready to snap. For Ahmed, ‘feminist snap’ occurs when our experiences of negotiating worlds that demean and exclude us become overwhelming. The report prompted an outpouring – in feminist groups, students’ unions, classrooms, faculty offices and on social media – from women who had had enough. And as Ahmed says, moments of ‘snap’ can be catalysts for change. In the movement that emerged around ‘lad culture’ we raised awareness, created training, and developed partnerships with local support services. We used the media to ‘name and shame’ perpetrators and the institutions that enabled them. We lobbied university leaders for a better response. By 2015, this had prompted the formation of a task force by Universities UK (the body that represents UK university leaders) on violence against women, harassment and hate crime.

The taskforce report, released a year later, recommended that all institutions adopt centralised reporting procedures, develop effective disclosure responses, and run training programmes. Afterwards, the Higher Education Funding Council for England made £4.7 million pounds available for projects addressing sexual harassment and hate crime on campus, which supported institutional initiatives across the country. There was also further data-gathering: in 2018, NUS and the 1752 group (the UK’s first lobby group on staff-student sexual misconduct) conducted a study with almost two thousand current and former students, and found that 40 per cent had experienced at least one instance of sexualised behaviour from university staff.

In 2019, three years after the taskforce report, Universities UK circulated the results of a progress review of 95 institutions across all four UK nations. It found that 87 per cent had a working group on sexual harassment, violence and/or hate crime and 76 per cent had secured senior leadership buy-in. 81 per cent had delivered training, and 78 per cent had developed or improved reporting mechanisms. Crucially, it found there had been an increase in reported incidents and ‘a profound change in the initiatives and ideas that are now available for sharing across the sector’. It concluded that ‘over time, this will help facilitate cultural change at both institutional and sector level’.

The activist movement against ‘lad culture’ and sexual violence in UK universities had succeeded in naming the problem and getting institutions to face it. Yet despite this huge achievement, I was circumspect. Institutional actions had mainly consisted of policy compliance and getting rid of ‘bad apples’ using disciplinary procedures. The movement, despite the input of a number of women of colour, was dominated by fellow white women who seemed happy to accept or even encourage this approach. But sexual harassment and violence are not a disease infecting particular ‘bad apples’ – they sit deep within the tangle of roots that nourishes the whole rotten tree.

This leads me to my second lesson: don’t individualise the issue.

Sexual violence is about systems. To understand it we have to think big: I theorise it as a pivot for heteropatriarchy, racial capitalism and its colonial extensions. It works at the level of the nation, the state, the community and the household; it allows for the extraction of socially reproductive and hyper-exploited productive labour; it facilitates the expropriation of land and resources. It enters the world via four vectors – threats, acts, allegations, and punishment – and these must be considered together if we are to understand why sexual violence occurs and how to stop it.

Acts and threats of sexual violence impose bourgeois binary gender and facilitate the free and low-cost social reproduction capitalism depends on. They keep women in our place and enable men’s domestic power over us. They punish people who do not conform to dominant gender and sexual norms. They support historical and ongoing colonial systems in which economic and caring labour is extracted from Black and other racialised communities for little or no reward. Rape has been used to terrorise and subjugate colonised, displaced and dispossessed populations in war, occupation, settlement, enslavement and theft (including their neo-colonial forms).

Allegations and punishment of sexual violence have achieved the same ends. Black and other racialised and colonised men have been brutalised and killed following accusations made by white women. Sexual violence is used as a political device to construct populations, cultures and nations as dangerous, to justify border regimes and military-industrial projects. The spectre of sexual danger can be deployed to demonise and deport migrants, and to funnel racialised and classed populations into the criminal punishment system. It can also be brandished to construct queer and trans people as a threat.

Sexual violence in the university performs all these functions, at a smaller scale. Sexual harassment and assault are used to demean and dominate, to make students and staff (usually women) unwelcome, to keep us under control, and to express and maintain supremacy. In UK student communities, there is evidence that ‘lad culture’ and its attendant sexual violence is the preserve of middle- and upper-class white men who see successful young women as a threat. Sexual harassment of students by staff usually involves senior male academics (the majority of whom are white) expressing their entitlement and abusing their power. As well as women, gender-nonconforming students are at high risk of violence, and being marginalised by race, class and/or disability creates additional vulnerabilities.

Acts and threats of sexual violence reserve and shape the space of the university for privileged white men (and some white women, too). They articulate and preserve the power relations of the institution and the wider world. And in universities, as in the wider world, certain groups are constructed as more sexually violent than others. There is anecdotal evidence that queer academics, especially those who are also Black, are more likely to be accused of sexual misconduct. A recent report described how anti-radicalisation agendas in UK higher education construct Muslim men as particularly misogynistic. The institution is not neutral when it comes to addressing sexual violence.

My third lesson is: know the institution.

As with sexual violence, when considering the institution, it is necessary to think big. I draw on abolitionist university studies, which understands education as key to the capitalist, colonial, modern world-making project. Eli Meyerhoff theorises education as a mode of primitive accumulation, which creates the preconditions for racial capitalism through hoarding the means of study and using them to credentialise us for stratified economic roles. It inculcates us into ways of knowing and learning that reflect capitalist norms and practices: separate public and private spheres, the rational and consuming individual, and colonial dichotomies between culture and nature, modernity and tradition, value and waste. We become ‘competent’ in the knowledges of the state and status quo, and other forms of world-making are cast as deprived and less evolved.

Higher education has shaped nationalism, patriotism, citizenship, democracy and ‘civilisation’. Anthropology, economics, demography, sociology, psychology and criminology have rationalised exclusion and exploitation. UK universities are deeply embedded in state capitalist violence, including post-9/11 counter-terrorism regimes through which academics become border guards. They are also places where student protest is violently repressed. As economic actors themselves, universities are central to flows of dispossession and accumulation. They have been built upon indigenous and/or enclosed common lands and enriched by transatlantic slavery. They are now entrenched in the neoliberal rationalities and practices of privatisation, outsourcing, downsizing and precarity, and are subject to, and have, complex financial interests (including in the military-industrial complex).

During COVID-19 in England, the moral bankruptcy of our higher education system was starkly exposed. Our increasingly privatised universities lured students to campuses with promises of ‘Covid-safe’ teaching, to collect fees and rents. Students were blamed and punished as the virus inevitably spread, then told they could not return home and trapped in infection hotspots by fences and cops. There was horror and condemnation of university leaders as this situation progressed. People who perhaps did not know before, realised exactly what the institution is. But this institution is what white feminists have looked to, to protect us from sexual violence. How can the institution protect us from violence, when the institution is violence? The university cannot not save us – it is what Audre Lorde would call the master’s house.

So, my fourth lesson is: put down the master’s tools.

Activists against sexual violence in UK universities have mostly made gains in policy. In response to our lobbying, institutions have made written commitments, amended discipline processes, revised reporting procedures and commissioned training. We have worked hard for these successes and have done well to achieve them. But policy machinery constructs the institution as benign and able to be worked on, concealing the violence built into its very existence. Contemporary UK policy work also tends to be undertaken within neoliberal systems of measurement, monitoring and audit that generate surplus value for the university. This creates an emphasis on maintaining the appearance of a functional institution, not worrying about the reality.

This is what Ahmed terms ‘institutional polishing’ – initiatives ostensibly about equality, that are actually about little more than generating a marketable image. These initiatives are what she calls ‘non-performative’ – they do not produce the effects they name but substitute for them instead. A non-performative is seen as doing something, when in fact it allows institutions not to do anything else. A report produced in response to an issue, which is then used to declare that the issue has been addressed. A policy which is created and publicised, but ultimately not followed because just having the policy is what counts. In the UK, it has become important for institutions to look like they are doing something about sexual harassment and violence. But looking like and doing are not necessarily the same thing – in fact, sometimes the first allows us to escape the second. Policy is very often one of the master’s tools.

Institutional polishing can also turn into institutional airbrushing when problems emerge. ‘Naming and shaming’ perpetrators has been another key strategy of the mainstream movement against sexual violence, and it is powerful because it threatens to mar the institution’s polished image. But the key word here is ‘image’ – the impact of the disclosure on the surplus value of the institution is more troubling than the disclosure itself. Communities often close ranks around sexual violence perpetrators. But in universities (which present themselves as communities but are actually corporations), the financial impact of disclosure must also be projected and totted up. For something to be marketable it must be unblemished, so the problem is airbrushed out.

What I call institutional airbrushing takes two main forms: concealment and erasure. Either issues are minimised, denied or hidden and survivors encouraged to settle matters quietly, or when this is not possible, the perpetrator is ‘airbrushed’ from the institution and it is made to appear as if they were never there. Confidentiality or non-disclosure agreements are often used, or financial settlements given to perpetrators to convince them to resign. Institutional airbrushing stabilises the system; it communicates and embeds the idea that all the institution needs to do is to remove the ‘bad’ individual. After the blemish is airbrushed out, the malaise that produced it remains. And after the blemish is airbrushed out, it has a tendency to reappear elsewhere. ‘Bad apples’ can always re-attach themselves to a different rotten tree. This is called ‘pass the harasser’ and it is a significant problem in UK higher education.

I am not saying that people who perpetrate sexual violence have a right to keep their jobs. I also know that not excluding a perpetrator from an institution can be a de facto exclusion of survivors. But I am concerned that, like capitalism itself, institutional airbrushing moves problems around rather than addressing them. I am also concerned that ultimately, we may outsource our perpetrators to women in lower-status, lower-paid economic sectors. Although ‘naming and shaming’ can be a form of direct action when other avenues are closed, it more often triggers institutional airbrushing than genuine institutional change. Institutional airbrushing is one of the master’s tools: it does not prioritise the personal interests of survivors but the financial interests of the institution. And when done in the corporate media, ‘naming and shaming’ can also be co-opted in the service of the bottom line.

This brings me to my fifth lesson: don’t mistake outrage for justice.

In the corporate media, trauma is big business. The phrases ‘disaster porn’ and ‘tragedy porn’ have been coined to describe our fascination with the troubles of others, which creates a market for the consumption of pain: photographs of drowned migrants on European beaches, stories of sexual assault in Hollywood, and videos of Black people being brutalised and killed by police. This material, usually fed to us online via ‘clickbait’, gives a quick fix of sympathy and outrage but does not often lead to systemic analysis or radical political action. Instead, it objectifies its subjects to make media outlets money. In the corporate media, holding governments, institutions and individuals to account comes a poor second behind manipulating outrage to generate revenue. This is what I call the ‘outrage economy’ of the contemporary Western media.

Sexual violence stories are capital in this economy, exemplified by the viral iteration of #MeToo. Although it was started by Black feminist Tarana Burke as a survivor-led movement of mutual support, #MeToo went viral following a tweet by white actor Alyssa Milano, as a moment of mass media disclosure. It was described as a ‘flood’ of stories of sexual assault by CNN, CBS and CBC, and a ‘tsunami’ on CNBC, in the Times of India, the New York Times and the US National Post.

A key limitation of this mainstream iteration of #MeToo is that media markets, like all markets, are profoundly nihilistic. Clicks, likes and shares are a multi-denominational currency. As long as they accumulate, as long as media companies can make advertising revenue and harvest our data, it does not matter why. In other words, the media using sexual violence as clickbait does not imply support for feminist goals. The media using sexual violence as clickbait does not mean survivors will not themselves be vilified if this happens to be the juicer story.

In my fifteen years in the field, I have become deeply uncomfortable with the key strategies of mainstream sexual violence activism. When institutions let us down, we often ‘invest’ our trauma in networked media markets, to generate outrage and the visibility we need to further our cause. But cynical media corporations exploit this outrage, building visibility for their brands by encouraging audiences to consume our pain. Meanwhile the threat of damage to the brands of exposed institutions and organisations leads to an airbrushing of ‘bad men’ from high-profile sectors. These individuals usually move on to start all over again, while oppressive systems are left intact.

When individual men are ‘named and shamed’ in the media, when institutional policies and initiatives focus on punishing or excluding these ‘bad apples’, there is almost no effect on the whole rotten tree. Indeed, we often end up nourishing its roots – when mainstream feminist activism relies on the patriarchal, racist, capitalist institution for punishment, we use the master’s tools to try to dismantle the master’s house. Like the carceral feminism that calls on the punitive state to put perpetrators away, activism against sexual violence in universities fails to dismantle the intersecting systems that produce sexual violence and strengthens them instead.

Because of this, my sixth lesson is: stop calling the manager.

The punitive tendencies of the mainstream movement against sexual violence are a key part of what I call its political whiteness. Political whiteness involves, among other things, a clear conceptual distinction between victims and perpetrators, an understanding of the state as benign, and a belief that punishment works. White and middle-class feminists have called for more police, more convictions and longer sentences – and when something goes wrong in our workplaces, we ask the manager to sort it out. And when we turn to authority, we legitimate and bolster that authority. In our efforts to address personal abuses of power, we turn to the institutional power that facilitates them. In thinking we can be safe in our institutions by punishing the ‘bad’ men, we conceal the fact that the institution itself is unsafe.

Our demands for discipline can also increase the institution’s power and ability to perpetrate violence. Policies that make it easier to dismiss harassers might chip away at everyone’s employment rights, especially in a post-pandemic context where universities are looking to make substantial cuts. Technologies such as codes of conduct or ‘morality clauses’ in employment contracts, or a ‘sex offenders’ register’ for higher education (which has been suggested by some activists), could be misused to target groups seen as ‘deviant’ or a sexual threat. Such forms of institutional governance are also ultimately designed to protect the university from liability, not to protect us. Law firm Pinsent Masons, which represents UK university administrations as they defend themselves against discrimination claims and has given them advice on breaking strikes, has written the guidance for universities on how to handle alleged claims of sexual misconduct.

There is also a difference between punishment and accountability. Punishment is a passive and impersonal process – the person who has been harmed hands over their power and is kept in the dark (although nevertheless it requires a huge amount of courage and work). Accountability, in contrast, is both personal and active. For Mia Mingus, accountability requires four steps from someone who has caused harm: self-reflection, apology, repair, and changed behaviour. It centres the person who has been harmed, their understanding of why the behaviour was harmful and their definition of what constitutes repair. It makes space for that repair, acknowledging that none of us is above causing harm and we may all need that space someday. It is the job of the perpetrator and not the survivor, and requires significant community input and support.

Accountability, as described by Mingus, would be difficult to achieve in higher education institutions which are corporations rather than communities, in which we are hierarchically organised, individualised, distrustful and overworked. None of this is conducive to honest communication and collective action. True accountability would require a collectivist, not a capitalist, institution – and this is probably an oxymoron. That does not mean, though, that while supporting survivors as best we can within the options currently available, we cannot also try to move in a better direction. In the longer term, we cannot keep calling the manager and relying on the system to do the work of accountability for us, when it is what needs to be dismantled.

This sets up my seventh and final lesson: be in it for the long haul. 

After fifteen years in the field, I heed Lorde’s advice that refusing to use the master’s tools may only be difficult for those who ‘still define the master’s house as their only source of support’. This is an invitation to stop relying on the master to deal with our collective problems, and to join the work of building a different house. A house where we tackle things together means a house founded on care – not the privatised care of the market and heteronormative family, not the bare minimum provided by the institution and state, but more capacious and collective ways of surviving and thriving. Instead of strengthening the status quo, mainstream feminist organising against sexual violence needs to become part of the broader project of making anew. We must think big and act small. What world do we ultimately want to live in? What are some baby steps towards it that we could realistically take?

I am referring here to the abolitionist distinction between reformist and non-reformist reforms. Non-reformist reforms move us towards the world we want, not further away. They shrink, rather than grow, the state and institution’s capacity for violence. To start with, in universities, this could mean creating small, self-organised groups of staff and students who imagine new ways of relating and solving problems together. It could mean using these prototypes to develop policy suggestions and initiatives which create structures of accountability rather than shoring up the institution’s power. It would mean making demands for institutional resources: money most importantly, and the time and space to do this important work. This would be a radical challenge to the current model of the university and to current mainstream feminist activism.

It would also be hard work, and might be bound to fail given what the university is. But all we need to do is move in the right direction. I take hope from recent mass strikes in UK higher education, which showed that neoliberalism has not stolen all our solidarity and community away. I also take hope from the many forms of grassroots care that have proliferated during the Covid-19 pandemic. I believe that we will not know what we can create until we free ourselves from how the institution stifles our imaginations and start doing what Tina Campt calls ‘living the future now’. People marginalised by race, class and disability, queer and trans people, have long been supporting survivors and working towards transformative justice outside the institution and outside the state. There are many amazing examples to emulate. This is work that will not be completed in any of our lifetimes, and it is not always easy to know whether we are dismantling power or helping to preserve it. This means we must be in it for the very long haul.


I hope at least some of these lessons are helpful – if so, I have created an infographic that you might want to download as a reminder (it can be used as a wallpaper or screensaver, or printed out if you prefer – click the image below to open full size, in order to save).

Thank you, Uber

Photo of Amir Paz-Fuchs
Amir Paz-Fuchs

This post is by Amir Paz-Fuchs (Professor of Law and Social Justice at Sussex Law School). It reflects upon the recent UK Supreme Court judgment on the status of Uber drivers and the implications this has for workers more broadly.

On the 19th of February, the UK Supreme Court delivered its long-awaited decision in Uber v Aslam, a case which, as I wrote here over four years ago (!), involves the seemingly simple question: are Uber drivers actually Uber drivers? My original post followed the Employment Tribunal’s ruling in favour of the drivers, and since then Uber has employed its resources, exhausting all available avenues, and (in a fashion exercised by a certain former President) proudly lost consistently first before the Employment Appeals Tribunal, then before the Court of Appeal, and finally, at the hands of the Supreme Court.

It is tempting to admonish a multibillion dollar, multinational company for deploying its resources to deny its workers access to their statutory entitlements for almost five years. And yet, a positive spin on Uber’s decision to do so may be the fact that, in defending an extremely weak case (for Uber), it paved the way for a court which is not consistently a friend of the working person to advance the jurisprudence concerning employment status and employment rights. Moreover, it did so in a manner that could well be important beyond the individual claimants, beyond Uber (although the ramifications for Uber are quite significant), and even beyond the gig economy.

Why is this so? For two main reasons, but let us start with a quick recap.

We can remind the reader that Uber sought to classify its drivers as (wait for it) Customers, and that is how they were referred to in the agreement between Uber and the drivers. In case you wondered, the clients of the service are not ‘Customers’, but rather ‘Users’. As such, Uber presented itself simply as an app, which brings together ‘Customers’ and ‘Users’, but plays no part within that relationship. Needless to say, just as other apps have no employment relationship with their users, so Uber (according to its claim) did not have such a relationship with its drivers. Of course, this could potentially be the case and Uber sought to position itself as akin to a virtual booking agent.

However, as the Tribunals and Courts showed in details, Uber actually controlled a wide range of the relationship in which it claimed it played no part (at [94]-[100]): first, it set the price (unlike a booking agent) which was charged by Uber, with no direct communication-enabled (or even permitted) between the driver and the passenger. Second, it monitored the driver’s rate of acceptance and cancellation of trip requests. A low rate of acceptance, or high rate of cancellations, would lead to sanctions in the form of ‘logging the driver off’ the system. Third, Uber runs a system whereby passengers rate the drivers, and a low score may lead to penalties and, eventually, to termination of the relationship. Fourth, Uber vets the type of cars that may be used, and the quality of the service. It also instructs the driver, through its built-in app, which route to take. Whilst the driver may decide to take a different route, s/he then bears the risk of a passenger refusing to pay because the driver deviated from the prescribed route. Fifth, and finally, Uber restricts communication between the driver and the client beyond the individual ride. Not exactly a typical booking agent.

We now reach the first important, and potentially far-reaching, judicial development here. For the Court, the control that Uber exerted over the drivers set the default position for the judicial approach that followed. In particular, it drew a clear line between the extent of the control and the worker’s vulnerability and from there, consequently, the worker’s need for protection through employment status and rights. Citing (at [75]) the Canadian Supreme Court case of McCormick v Fasken Martineau DuMoulin LLP 2014 SCC 39, it proclaimed that: ‘The more the work-life of individuals is controlled, the greater their dependency and, consequently, their economic, social and psychological vulnerability in the workplace’. And then, in its own words (at [88]): ‘The greater the extent of such control, the stronger the case for classifying the individual as a “worker” who is employed under a “worker’s contract”’.

The second pronouncement concerned the interpretation of what is arguably the most important case on employment status in the last decade – Autoclenz v Belcher [2011] UKSC 41. Very quickly: in this case, car valets who worked for Autoclenz on a piecework basis, had to buy their own uniforms and materials from Autoclenz and paid tax and National Insurance contributions as self-employed contractors. Crucially, their contract dictated that the relationship was that of client and independent contractor, and not an employment relationship. It also included a ‘substitution clause’, which would allow a ‘contractor’ to engage others to work on his or her behalf. Such a term is routinely viewed as undermining the employment relationship.

However, the Supreme Court accepted that the workers were not aware of their supposed right to employ substitutes, that none of them had ever done so, and thus the contract did reflect the true agreement of the parties. The Supreme Court accepted Sedley LJ’s opinion, in the Court of Appeal, which could easily have been written about Uber: ‘the elaborate protestations in the contractual documents that the men were self-employed, when examined, bore no practical relation to the reality of the relationship’. Crucially, then, when the reality of the situation is distinct from the contractual arrangement, the court should take account of the inequality of bargaining power and view the contractual arrangement as a contractual sham which should be ignored.  

Back to Uber, then. Uber submitted that Autoclenz created a default position according to which the contractual arrangement should be respected unless there is clear evidence to the contrary, and in this case, no such evidence was presented. The departure was allowed, as noted, because of the clear inequality of bargaining power that allows the employer to dictate the terms of the contract, rendering it more as ‘take it or leave’ than one that results from true negotiation.

Lord Leggat accepted this rationale, but added an additional, crucial one, which he candidly notes ‘was not … fully spelt out in the judgment’. Accordingly, the justification for departure from the contractual construct is strengthened considerably because of the nature of the rights asserted by the claimants: these are not contractual, but rather statutory rights, created by legislation (national minimum wage and annual leave).

In such situations, a ‘purposive’ approach to the interpretation is necessary to ensure that vulnerable workers are protected. Further, since established that the control over the drivers’ terms and conditions increases their vulnerability, a purposive interpretation of the relevant legislation would require applying its provisions in this case, regardless of the contractual protestations to the contrary. The Court explains, very clearly, that to allow the employer to create a different default position (according to which no employment status is recognised) through contractual terms would seriously undermine statutory protection. Doing so ‘would in effect be to accord Uber power to determine for itself whether or not the legislation designed to protect workers will apply to its drivers’ [77].

And so, while the contractual terms cannot be ‘ignored’, the Court continued to explain, in a manner more far-reaching than it ever did, previously, that

there is no legal presumption that a contractual document contains the whole of the parties’ agreement and no absolute rule that terms set out in a contractual document represent the parties’ true agreement just because an individual has signed it. Furthermore, as discussed, any terms which purport to classify the parties’ legal relationship or to exclude or limit statutory protections by preventing the contract from being interpreted as a contract of employment or other worker’s contract are of no effect and must be disregarded.            [emphasis added]

And so, to recap: in this case the UKSC, faced with a judicial version of David and Goliath on steroids, not only chose to stand with David, but set the grounds for future Davids (and Devorah, but maybe we can stop stretching the biblical analogies). It removed the default position of contractual authority, which gave employers a clear advantage, and even positioned its finger on the scales in favour of workers who manage to establish their vulnerability in a relationship. A good day for the precariat, so thank you, Uber.

Queering Asylum… or Human Rights in Europe?

&

Nuno Ferreira

University of Sussex

After 70 years since the conclusion of the Convention relating to the status of refugees, the process of ‘queering’ asylum law is beyond doubt, as we have explored in The Oxford Handbook of International Refugee Law (Chapter 4). This process of ‘queering’ asylum law has certainly reached its highest peak in Europe, where the needs of people claiming asylum on grounds of sexual orientation and gender identity (SOGI) are increasingly taken into account in law and practice. Yet, a four-year research project carried out across the EU has found that a range of issues remain problematic, or even unaddressed, in this field. These include: the lack of information on SOGI as grounds to claim international protection at arrival to Europe; the lack of specific procedural arrangements, including the choice of the interviewer and of the interpreter, and of appropriate reception conditions; a persistent culture of disbelief and the use of stereotypical views on sexual and gender minorities during the adjudication process of asylum claims; and the misuse and low quality of Country of Origin Information. Some of these problems could be addressed in the context of the current reform of EU asylum law, given the need to improve the Common European Asylum System in this respect. However, such a reform might not be enough, especially if we consider the evolution of European human rights law in relation to SOGI asylum.

Indeed, we have recently witnessed controversial decisions by the European Court of Human Rights (ECtHR) that raise a fundamental question: to effectively protect SOGI minorities claiming asylum in Europe, along with the ‘queering’ process of asylum law, is there a need to also ‘queer’ human rights? To answer this question, here we wish to bring attention to two decisions issued, respectively, by the ECtHR in B and C v. Switzerland, and the Committee on the Rights of the Child in A.B. v. Finland. By building on different assumptions, these human rights bodies seem to set different principles in the field of SOGI asylum. Let us first briefly recall the facts and outcomes in these cases.

On the one side, in B and C v. Switzerland the European Court of Human Rights issued one of its very few decisions on the merits of an application related to SOGI asylum. In short, Mr B claimed that, if returned to The Gambia, he could be exposed to persecution and, therefore, to ill-treatment on grounds of his sexual orientation. In fact, Swiss asylum authorities rejected his asylum applications in the belief that Mr B’s sexual orientation would presumably not come to the attention of the Gambian authorities or population, so he could be safely returned. The ECtHR certainly made important statements in its decision in this case. In line with the position adopted by the Court of Justice of the EU (CJEU) in X, Y and Z, it has reiterated that no one should be obliged to conceal their sexual orientation in order to avoid persecution. The ECtHR also found that it is irrelevant whether or not the Gambian authorities or population are aware of Mr B’s sexual orientation because this may be discovered very easily after his removal. Even more importantly, according to the ECtHR, given that the risk of persecution may come from non-State actors, States parties’ authorities need to evaluate whether the Gambian authorities would be able and willing to provide the necessary protection to Mr B against ill-treatment based on his sexual orientation emanating from such non-State actors. Yet, the ECtHR adopted a controversial position in relation to the criminalisation of homosexuality or same-sex sexual acts: ‘the mere existence of laws criminalising homosexual acts in the country of destination does not render an individual’s removal to that country contrary to Article 3 of the Convention’ (para. 59). In fact, and in line with the judgment of the CJEU in X, Y and Z, what is decisive for the ECtHR is whether there is a real risk that these laws are applied in practice. In other words, the effects that the mere existence of such laws have on sexual and gender minorities and on their protection by the State have been disregarded by the ECtHR, although their implications for the protection of human rights are widely known.

On the other side, in its first-ever decision involving SOGI asylum, the Committee on the Rights of the Child has adopted a much firmer approach questioning the possibility of returning a family to a country where legislation discriminates against sexual and gender minorities. In short, a Russian child was discriminated against on the grounds of his mother’s sexual orientation and same-sex relationship. To cite just one example, he was bullied in kindergarten, where even the staff considered his family to be ‘abnormal’. The child’s mothers decided to flee Russia and moved to Finland, where they submitted an asylum application on sexual orientation grounds. Although the asylum authorities recognised the general increasing violence against sexual and gender minorities in Russia, especially after the introduction of the so-called ‘gay propaganda law’ that promotes the impunity of perpetrators of discrimination and harassment, and accepted that the family experienced discrimination in Russia, the asylum application was rejected because the threshold of persecution was not met. The rights violation was not so severe as to fulfil the requirements of the notion of refugee. The family was therefore forced to go back to Russia, where the child has to lie about his family to avoid ill-treatment, which entails serious mental health implications and the constant need to move to other parts of the country. Against the arguments of the State party in question, the Committee found that the Finnish authorities had failed to carry out a proper asylum assessment. In fact, the existence of a risk of serious violations of the Convention on the Rights of the Child in Russia was not evaluated in light of the child’s best interests to live safely and receive appropriate care in a way that would effectively ensure his holistic development. Despite being based on the principle of the best interests of the child, the Committee on the Rights of the Child accepted that, even without criminalisation of same-sex sexual acts or relationships, the impact of violence and harassment in a homophobic society in the country of origin is an essential factor in the evaluation of the risk of refoulement. It may indeed lead to finding a real risk of irreparable harm (directly and indirectly) on SOGI grounds.

Leaving aside other considerations based on their different nature and role, the gap between the approaches adopted by the ECtHR and the Committee on the Rights of the Child sheds light on what a ‘queer reading’ of human rights really entails. Whereas the Committee looked at the individual and contextualised his specific needs in order to evaluate the risk of return, the ECtHR failed to afford sufficient weight to the societal and cultural environment in which the risk of ill-treatment materialises. In doing so, the Court employs heteronormative understandings of human rights, far from more advanced interpretations of asylum and human rights law supported at international level, as well as adopted domestically.

So, the answer to our question is necessarily ‘yes’: European human rights law also needs to be ‘queered’, because despite all the improvements made so far, ‘queering’ asylum law is not enough to protect SOGI minorities claiming asylum in Europe if human rights law supports contrasting views. The decision of the Committee on the Rights of the Child in A.B. v. Finland is particularly welcome because it may set the path for a better understanding of the complex and harsh conditions that sexual and gender minorities experience in their countries of origin before fleeing to safer places. Hopefully, it may lead to better-informed asylum and human rights decisions in Europe.

Suggested reading

Danisi, C, Dustin, M, Ferreira, N and Held, N (2021) Queering asylum in Europe: legal and social experiences of seeking international protection on grounds of sexual orientation and gender identity. IMISCOE Research Series. Springer, Cham.

Ferreira, N and Danisi, C (2021) Queering international refugee law. In: Costello, C, Foster, M and McAdam, J (eds.) The Oxford Handbook of International Refugee Law. Oxford University Press, Oxford, Chapter 4.

SOGICA Project (2020) 32 recommendations to the European Commission on the new EU LGBTI+ Equality Strategy. University of Sussex, Brighton.

Coronavirus and the EU’s ‘Triple Crisis’

[This post is by Neil Dooley (Lecturer in Politics at Sussex) and Maria Matiou (Doctoral Researcher in Politics at Sussex) and is republished with permission from the Sussex Sustainability Research Programme’s SSRP Forum: the Pandemic and Sustainability. For updates on this and related research since the original publication in 2020, follow the work of Neil, Maria and SSRP.]

This past decade has seen the EU grapple with its so-called ‘triple crisis’ relating to the eurozone, the refugee crisis, and Brexit. The coronavirus pandemic now adds a fourth crisis to the mix.

EU flag wearing a mask

The ‘triple crisis’ has shown that EU crisis-management is routinely limited by competing member-state preferences. This time, divisions in the Eurogroup have hindered agreement on an economic response. Such divisions may also threaten to reignite the leftover tensions of the EU’s erstwhile triple crisis.

The response to the eurozone crisis was, initially at least, characterised by member-state division and intransigence, narratives of Southern European ‘immaturity’ and financial assistance accompanied by austerity without growth, rather than burden-sharing. While this is far from the whole story, these legacies of the eurozone crisis continue to cast a long shadow.

Today, talks between eurozone finance ministers have failed to reach agreement on economic support measures. North-South divisions have re-emerged as nine member-states, including France and Italy, push for a new joint-debt instrument to be created to share the enormous costs of economic lockdown. Like Eurobonds before them, ‘coronabonds’ are strongly opposed by German, Dutch and other governments. Member-states are also clashing over the strings which should be attached to bailouts, with Italy insisting on unconditional support while some Northern countries insist on conditionality on European Stability Mechanism (ESM) loans. Narratives of ‘peripheral immaturity’ have resurfaced too, as Dutch Finance Minister Wopke Hoektra mused that the EU should investigate why certain eurozone countries don’t have enough fiscal strength to cope. The Eurogroup reconvenes on Thursday April 9th and will seek to find compromise. Unless ministers can move beyond respective narratives of core-periphery mistrust, inherited from the eurozone crisis, this will be difficult.

We haven’t fully returned to 2009, however. First, any conditionality attached to the ESM credit is likely to be substantially milder than that associated with troika programmes, and EU fiscal rules will also be relaxed (as will EU state-aid rules), none of which is insignificant. Second, alongside a range of important measures, the ECB’s “Pandemic Emergency Purchase Programme” (PEPP) provides the bank with extraordinary powers to buy government bonds, which contrasts with delays and disagreements prior to 2012. Third, “SURE”, a new €100bn instrument has been proposed by the European Commission, and supported by Germany (but not wholeheartedly by the Dutch), to assist national unemployment insurance schemes, and the European Investment Bank has announced financial assistance for enterprises. These are real positives, but a danger remains that the longer-term legacy of the Eurogroup’s response is a deeper entrenchment of divisions between the eurozone core and periphery.

The response to the refugee crisis in 2015 was similarly characterised by clashes between member-states. As Moravcsik and Schimmelfennig have argued, member-states were united only to the extent that each wanted to reduce migration flows, and each wanted to shift the costs of the response to others. The division during this crisis was drawn between Central and Eastern and Western member-states, principally over coordinating relocation, accepting refugees and border-closures, including Austria and others ‘unilateral’ closing of the Balkan route and Hungary’s construction of a border fence. Divisions also emerged relating to ‘burden-sharing’ between Northern and Southern member-states such as Greece and Italy. Moreover, ‘morality plays’ and prospects of Grexit were repeated, this time over Greece’s management of Schengen. Recently, thousands have travelled from Turkey to Greek northern borders, while in the reception centres, the first confirmed coronavirus infections have been reported. The EU has responded by providing financial assistance to Greece, but without common asylum system reform and an agreement to relocate refugees from centres which are ill-equipped to cope with an outbreak of COVID-19, thousands of people living in overcrowded and unsanitary conditions are particularly vulnerable.

The third dimension of the triple crisis, Brexit, represented rising hard-Euroscepticism and a manifestation of European disintegration. Although the EU response is ongoing, the initial stage was remarkable precisely because of the “strong and shared emphasis of EU unity” among member-states. In comparison with the other dimensions, Brexit looked like a turning point for how the EU manages crises. There was real solidarity too. The interests of Ireland, a small, peripheral EU member-state, were championed by Germany and others, and elevated to become one of three priorities enshrined in the Commission’s negotiating mandate.

Unfortunately, in the context of the three other crises, the EU27 response to the first phase of Brexit negotiations looks like something of an exception. Moreover, an inadequate response from the Eurogroup risks interacting with the legacies of Brexit. In the immediate aftermath of Brexit, hard-Euroscepticism has played a muted role in elections across the EU27 . If the eurozone emerges from the coronavirus crisis without signalling convincing burden-sharing, it may also emerge more deeply divided between North and South. In this scenario, it isn’t inconceivable that the worst hit countries, like Italy, could see a rise in support for exiting the EU.

A response to the coronavirus crisis that is predominated by member-state division will interact with the ongoing legacies of the EU’s triple crisis in damaging ways. Jacques Delors has warned that a lack of EU solidarity poses a “mortal danger to the European Union”.  There are already signs of public opinion shifting against the EU in Italy, and it’s not hard to imagine that market perceptions of a lack of unity could signal chaotic days ahead for the public debt of Spain, Italy, and others. While the EU has already outlived countless of its own eulogies, an absence of burden-sharing between member-states at a moment like this may risk rising Euroscepticism and an asymmetric spreading of the costs of, and recovery from, the pandemic. But the EU has the capacity and, moreover, the opportunity to overcome such disintegrative tendencies. To do so at a time when multilateralism is already in crisis, and G20 coordination has been disappointing, would not only provide the European project with an enormous reputational boost within its borders, but would also be a chance to attempt to diffuse the norms of cooperation, burden-sharing, and solidarity globally. If the EU was looking for the moment to assert genuine ‘normative power’, and to build trust and unity, surely this is it.

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Dr Neil Dooley, Lecturer in Politics in the Department of Politics at the University of Sussex, where he teaches European Union Politics and International Political Economy. Neil’s primary research interest concerns the asymmetry of the European sovereign debt crisis, such that peripheral states have been more severely affected.

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Maria Matiou, a Phd Candidate in the Politics Department, University of Sussex and her research focuses on German power in the EU of polycrisis.

I wish I knew how

This post is by Neemah Ahamed (Doctoral Researcher at Sussex Law School). Following on from her previous post ‘What do they call me?’, here the meaning of justice for women of colour who’ve experienced gendered violence is explored in conversation with analysis of Nina Simone’s performances of two songs.

Nina Simone in 1964 (Hulton Archive/Getty Images)

Nina Simone’s rendition of the song, ‘Don’t Let Me Be Misunderstood’, is a yearning for justice and respect against deliberate misunderstanding, including of herself. It is a haunting melody and its lyrics, which invoke a sense of vulnerability resonate because they speak to that part of us which wants to be understood. It may remind some of us dealing with the shadows of trauma of gendered abuse that more than anything else we want justice and what it means in the context of our lived experiences to be heard. For women of colour who’ve experienced gendered violence, they are often afraid of speaking out about what justice means to them. Cultural and family values may influence them into believing that they may be partially to blame for acts of abuse committed against them. Religious leaders sometimes prevent women from speaking out by coercing them into believing that it is morally wrong to do so based on scriptures and religious teachings. In this way women are imprisoned in a ‘cage of male domination’. The lyrics remind us to acknowledge their experiences and remember, they are ‘human’, and it is important to ask what justice means to them.  

The problem with the meaning of justice is that it has been defined on behalf of, not by, the individuals that seek it. Only a few studies have been carried out about what justice means to victim-survivors of colour. According to McGlynn and Westmarland, women want acknowledgement that they have been harmed and victimised. McGlynn and Westmarland propose a multifaceted way of thinking of justice, that is, through a kaleidoscope. This is because it is enables justice to be seen as a ‘continually shifting pattern, constantly refracted through new circumstances and understandings’. They argue justice is pluralistic, a lived, on-going, evolving process rather than an end result. Through this lens, justice can be seen as consequences, recognition, dignity, prevention and connectiveness. It embodies Simone’s lyrics of being respected as a ‘human’ and to be understood for who you are and what you have lived through. Gangoli et al is the first study that focuses specifically on women of colour’s notion of justice and, for them, there are three types of justice. Firstly, justice can be obtained through the legal system through which perpetrators must suffer meaningful consequences for their actions. Aside from the fact that this includes punishment and imprisonment, there is little evidence of what more victim-survivors conceptualise should be done. Secondly, victim-survivors see justice as something that takes place when their communities recognise their suffering by acknowledging the harm inflicted by their perpetrators. They feel isolated because they are ashamed to share their experiences with their family and unable to express what justice means to them. They want empathy; they want their truth to be heard. They want their communities and families to play a role in reforming gender roles and inequalities because, to them, these contribute to gender based violence. Thirdly, justice is conceptualised in terms of human rights and freedoms.

Simone’s powerful melancholic rendition of ‘I Wish I Knew How It Would Feel To Be Free’ speaks to identity and individualism and the yearning to ‘break’ free from ‘chains’ that hold us. Listened to in this context, it has resonances of the longing for personal freedom for victim-survivors who have been subjected to coercive control by their families. In Joel Gold’s film Nina, Simone attempts to answer a question posed by an interviewer about what freedom means to her. Part of her response was ‘no fear’. Aside from language barriers and insecure immigration status, Gangoli et al further argue victim-survivors are unable to access justice or explain what justice means to them because they are threatened with domestic abuse and violence. Fear holds them back. In the words of Audre Lorde, we must recognise that ‘where the words of women are crying to be heard, we must each of us recognise our responsibility to seek those words out, to read them and examine them in their pertinence to our lives.’

Your Teachers are Researchers: Changing Research Culture

This post reflects upon the event ‘Your Teachers are Researchers’, held as part of Sussex Law School’s Research Seminar Series on 26 November 2020.  It is written by Verona Ní Drisceoil (co-organiser and chair) and Bal Sokhi-Bulley (co-organiser and panellist) with input from the panel of staff (Neemah Ahamed, Matt Evans, Sabrina Gilani and Lucy Welsh) and from the student voices (Henry Bonsor, Jasmine Bundhoo, Ayo Idowu-Bello and Tyrone Logue) who participated in and facilitated the event.

Introduction

There was bhangra and then there was jazz. There were staff and there were students. And then there was a space of collaboration and ‘collaborators’. On 26 November in an otherwise usual Week 9 of term, students and faculty of Sussex Law School (SLS) came together in a shared, non-hierarchical space to reflect, relate and disrupt. The result was a powerful, moving and liberatory one. In that shared space, collectively, and in friendship, we had succeeded in doing research relationally – building relationships with, rather than just being in the same room as, our students. We created a ‘liberatory space’ (Jivraj, 2020) wherein we were able to be otherwise.

‘Your Teachers are Researchers’ grew out of a desire for connectedness in these times of pandemic; to breach the staff/student binary and grow a research culture that shared a space with the students with whom we do ‘research-led teaching’. In this respect, the event drew inspiration from Fung’s vision of a ‘connected curriculum’ (Fung 2017), from Freire on dialogue (1970) and bell hooks (1994) calling for the teaching and learning experience to be different; one that can be shared and transgressed, together. This vision strongly echoes Jivraj’s (2020) call to engage in ‘self-liberatory’ processes, that can only be achieved through a focus on relationality – between staff and their students – allowing us all to ‘belong’ to, and in, the academy.

A False Binary

In that space, we discovered that the staff/student binary is a false one; we had instead become ‘collaborators’. The event was deliberately organised to remove the normative hierarchy of faculty/student. Students, as opposed to their teachers, led and facilitated the session. Faculty were decentred. Final year students Henry and Jasmine began with powerful reflections on what research-led teaching means to them. Eloquently, they shared how the Law and Critique module convened by Bal and Sabrina had offered a space to be ‘intellectually creative and sensitive’ (Jasmine) and distilled our shared roles as activists, writers and thinkers, as, ultimately, to ‘make the word a better place’ (Henry). They spoke too of how the module had helped them to grow in confidence – to find voice and expression – and equipped them with the ‘tools’ to go out and ‘flourish’.  Ayo and Tyrone (Year 1) followed by introducing the panel of faculty speakers: Bal, Sabrina, Neemah, Matt and Lucy. Their introductions were thoughtful and generous; their questions, powerful and insightful. They set the bar high!

Faculty then spoke to their experience of teaching their research and to something they were currently or had recently been working on. Over the course of the evening, we were able to share that doing research is slow, requires resilience and is personal to us. Bal spoke to how she felt compelled to write about the intersections between pandemic, race and class over the summer when the Leicester Lockdown happened. Her reference to the labelling of BAME communities as ‘dirt’ was picked up by Sabrina, who questioned what it means to be ‘human’ in the context of criminal law and punishment, focusing on how we express and recognise humanity through material engagement. We then heard about the intersectional experience of women of colour from Neemah, who played us Nina Simone’s ‘Four Women’. We were reminded of the wider, problematic space that we inhabit as individuals within higher education by Matt, who interrogated the space of the neoliberal university. And we heard about what it means, in the context of a wider neoliberal Britain, to make claims to access justice from Lucy, and how as staff and students of law we can and ought to question exactly what ‘justice’ means.

The presentations were punctuated with a flurry of questions – ranging from Alex (LLM Human Rights) asking Bal about whether Trump should do ‘friendship’ with China to remedy the blame culture he began; to Ayo asking Neemah about colourism and the different experience of lighter and darker skinned black women; to Tyrone asking Lucy about the nexus between the economy and access to justice. There were also questions about the potential impact our research has. For instance, Vanessa (LLM) asked Lucy about the process, as an academic and researcher, of impacting change in the criminal justice system.

Reflecting on the event immediately afterwards brought up feelings of pride, warmth and a sense of freedom (from the usual hierarchies and the ‘right way’ to treat our students). Verona commented on how the event made her heart feel full – in that space, she said, ‘something special happened’. Bal said she was ‘blown away by the student participation. Henry, Jasmine, Ayo and Tyrone were exceptional – eloquent, engaged and I felt both proud of them and reaffirmed in our roles as educators/researchers’. ‘It was fantastic to take part in such a well-attended event and to have the chance to actually have a conversation with students, guided by them, about research, teaching, learning, their overlaps and the environments in which they take place,’ said Matt. Lucy expressed that, ‘it was invigorating/uplifting to create a place for discussion together and see how superficially disparate interests can be brought together in a shared space of friendship and creativity’. 

Building on the theme of friendship and connectedness, Henry commented,

for me, the most meaningful aspect of the event was created by the relationality between both teachers and students. Previously, I felt like research was something that teachers performed in their own time and only shared with their peers. 

Similarly, Ayo spoke of how this event was so much more than an event about researchers talking about their research. She said that

this event gave me a sense of community and togetherness which is something that I had not felt since moving to Sussex due to the exceptional circumstances of a pandemic… This event created a space where there was no hierarchy, there were no tutors and students because for those few hours, we were all students who were there to listen, learn and critique one another.

For Tyrone, ‘the event made space for direct engagement with tutors’ allowing, he said, ‘for a valuable discourse which is often all too elusive in the conventional classroom’. Finally, Jo Bridgeman, Law, Politics and Sociology ‘research guru’, tweeted ‘this was fabulous… the staff and student contributions were outstanding.’

Building Community Through Research: Changing Culture

Pointing to the potential for collaborative opportunities, Sabrina has since found research synergies with several students in attendance (including Daniel and Amanda from Year 1) and commented on how the event is likely to shape future projects between teachers with (not just ‘and’) students. ‘Your Teachers are Researchers’ transgressed the teaching-research divide in a unique and holistic way; it created a space of shared mutual respect where everyone’s voice was heard (hence, ‘student voices’), and everyone’s presence acknowledged. Without dialogue, there is no communication, and without communication there can be no true education (Freire, 1970). In a similar vein, hooks reminds us that ‘it is not sufficient to create an exciting learning process. To generate excitement, is to ensure interest in one another and in hearing one another’s voices’ (hooks, 1994: 8).

Over the past three decades or so, forces both at a national and global level have tended to silence disparate voices and pull research and teaching apart (Barnett in Fung 2017). Siloed performance indicators such as TEF (Teaching Excellence Framework), REF (Research Excellence Framework) and KEF (Knowledge Exchange Framework) remind us that so much of our lives are about measurement and thus control; this event was freeing in allowing us to relate in a creative non-regulatory way. Against the background of measurement, Fung calls for a different approach: a truly symbiotic relationship between teaching and research. This, she suggests, begins with explicitly inviting students, at all levels, to connect with researchers and the research environment (Fung, 2017). Involving students in shared spaces of dialogue and critical engagement is an integral part of the learning journey. The benefit of this shared dialogue, of course, is not unilateral. The symbiosis provides a dual benefit in the form of opportunity for authentic co-creation. In this space, students become partners, co-researchers and co-producers as opposed to passive consumers (see further Carmichael et al, 2020). There is, perhaps then, a move towards joint ownership and joint decision-making where students inspire research.

SLS, like many law schools, is following the trend of trying to ‘decolonise’ its curriculum. We echo Jivraj in recognising that this process of decolonisation will only happen through ‘doing’ relationality together in recognition of belonging. It was not our intention to ‘decolonise’ here – but this is the point. As Adebisi (2020) reminds us, ‘[d]ecolonisation is also a reflective practice in which we as academics much constantly adapt our own pedagogies and question our own practices’. That is what we were doing – reflecting on our practices and attempting a counter-pedagogy that resists the hierarchies of knowledge transfer and we did so also through an active recognition of the need to include voices from BAME students and staff (on the problematic construction of ‘BAME’, see further Adebisi 2019). Counter-pedagogy, performed in such organic and holistic spaces, provides possibility for a true reimagining of the core purpose of universities and that is a hopeful thing.

Conclusion

The presentations began with some bhangra, which Bal described as not simply gratuitous! But, rather, a manifestation of both ‘sonic intimacy’ (James, 2020) and resistance (given the roots of UK bhangra and its growth alongside race riots). These vibes remain with us – we created an intimate space and a space that resisted the normative boundaries of the staff/student relation. We hope to continue to challenge this binary and to grow the research culture at SLS with our students as we continue to do our research, teaching and encounters with each other otherwise

References and Further Reading

Adebisi, Foluke. 2019. The only accurate part of ‘BAME’ is the ‘and’… African Skies, 8 July. https://folukeafrica.com/the-only-acceptable-part-of-bame-is-the-and/

Adebisi, Foluke. 2020. The Law Teacher Special Issue on Decolonising the Law School. African Skies, 2 December. https://folukeafrica.com/the-law-teacher-special-issue-on-decolonising-the-law-school/

Barnett, Ronald. (2017) ‘Foreword: Energising an Institution’ in Fung, Dilly. A Connected Curriculum for Higher Education. London, UCL Press.

Carmichael P, Tracy F. 2020. ‘Networks of Knowledge, Students as Producers, and Politicised Inquiry’, in Dohn, NB, Jandrić, P, Ryberg, T, de Laat, M (eds.). Mobility, Data and Learner Agency in Networked Learning. Cham, Springer.

Freire, Paolo. 2000. Pedagogy of the Oppressed. New York, Continuum (revised edition).

Fung, Dilly. 2017. A Connected Curriculum for Higher Education. London, UCL Press.

hooks, bell. 1994. Teaching to Transgress: Education and the Freedom of Practice. New York, Routledge.

James, Malcolm. 2020. Sonic Intimacy. London, Bloomsbury.

Jivraj, Suhraiya. 2020. Decolonizing the Academy – Between a Rock and a Hard Place. Interventions, 22(4): 552-573. 

Staff Panel/Papers

Neemah Ahamed, ‘What Do They Call Me? On the Poetry and Lyrics of Audre Lorde and Nina Simone’ 

Matt Evans, ‘The neoliberal university and resistance in the current crisis’

Sabrina Gilani, ‘Material Rights and Embodied Cruelty: Encountering the Constitutionality of Capital Punishment’

Bal Sokhi-Bulley, ‘From Exotic to “Dirty”: How the Pandemic has Re-colonised Leicester’

Lucy Welsh, ‘Accessing justice in criminal courts. Is it all about legal aid?’

Authors

Verona Ní Drisceoil is a Senior Lecturer in Law (Education and Scholarship) at SLS. Verona is currently working on two projects. One, with Imogen Moore (Bristol), exploring ‘confidence, community and voice’ in law school transitions and another exploring inclusion, exclusion and hierarchies in law schools. This second project asks, ‘who is not in the room and why not?’.

Bal Sokhi-Bulley is a Senior Lecturer in Law and Critical Theory at SLS. She writes and teaches on critical approaches to rights, and is currently working on using the concept of ‘friendship’ to re-imagine rights in the hostile environment; this work features in her courses on Law and Critique, Human Rights: Critical Perspectives, and Migration Rights and Governance.

Legality and Loopholes in the Environment Bill

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Hannah Blitzer

This post is by Hannah Blitzer (graduate of the LLM International Human Rights Law, and now Doctoral Researcher, at Sussex Law School). Here Hannah evaluates the Environment Bill as it makes its way towards becoming law, and urges ‘cautious pessimism’ with regard to the Bill’s potential to effectively facilitate protection of human rights, adherence to international environmental standards and upholding of environmental justice.

After a prolonged delay, the Environment Bill re-emerged from its 200+ day hiatus in November, just in time to be ushered through Parliament in the final weeks of the Brexit transition period. With the UK’s environmental failures over the last ten years dubbed a ‘lost decade for nature’ due to its inability to meet nearly every global biodiversity target, the onus is on lawmakers to enact stringent legal measures that will restore the state of nature.

Notwithstanding the stream of other ‘world-beating’ policies that have emanated from the British government, headlines of which we are all too familiar with, the Environment Bill presented an opportunity for the UK to become a frontrunner in green leadership. In that sense, the Environment Bill is welcomed as a key legislative opportunity to develop a strong system of green governance and enforcement after the departure from the EU.

This piece will evaluate key provisions of the Environment Bill in relation to the Office for Environmental Protection (OEP) and deforestation. It finds that the revised Bill, released by the Public Bill Committee on 26 November 2020 after extensive Parliamentary debate, has retained low standards and loopholes that not only evidence the weak legislative commitment to long-term environmental quality, but also a flagrant disregard for the principles of environmental justice on a broader level

Enforcement & The OEP

After a decade of deregulation, there is an environmental enforcement gap in the UK. Despite the OEP being lauded as a ‘strong’, independent environment regulator, its independence, budget and enforcement functions (‘teeth’) have been routinely criticised throughout the Bill’s life cycle, including at the most recent Debate Stage.

  1. Who Decides What is ‘Serious’?

The OEP itself has the power to apply to the court for an environmental review (s37), or judicial review or statutory review (s38). However, government amendments limit the OEP’s power to bring such reviews to the most ‘serious’ breaches of environmental law. On its face, the OEP appears to have remit to determine what constitutes ‘serious’ (s22(6)), yet s24 gives the Secretary of State power to issue guidance explicitly on the matters contained in s22(6) and has the ability to revise such guidance at any time.

This veiled threat of the Secretary of State setting potentially arbitrary thresholds through ‘guidance’ is a testament the lack of independence of the OEP and to the government’s apparent refusal to trust experts and science to guide environmental governance. It also signifies an unwillingness to commit to concrete, transparent environmental obligations that will hold governmental authorities accountable for failing to comply with environmental law. The question of what constitutes a serious breach of environmental law is a matter for independent decision-making as opposed to government ministers, as it is the governmental (public) authorities that will be answering for alleged breaches of environmental law. Allowing ministers to influence these matters will inevitably render the OEP a satellite body of the government, not unlike the Environment Agency or Natural England

  1. Where are the ‘teeth’?

To improve the natural environment, the Environment Bill creates an obligation for the government to construct an environmental improvement plan, which must encompass regular reviews and meet both interim and long-term targets. Environmental improvement plans are given a minimum period of 15 years (s7(3)) and includes 5-year, non-binding, ‘interim targets’.

Achieving the mantra ‘building back greener’ after years of missed opportunities and vague commitments will require far more stringent, binding obligations. Greener UK has noted that the UK is at high risk across all of its environmental policy areas including nature protection and waste, and these risks are increasing due to insufficient regulatory action.  Yet, the deadline for setting targets for each priority area (air quality, water, biodiversity, and resource efficiency and waste reduction) under s3(9) isn’t until 31 October 2022. Enforcement is  compromised by s1(6), which states that the specified date of any long-term, binding target is no less than 15 years after the date it is set. Effectively, if the earliest date these targets are created is 2022, it cannot become binding and enforceable until 2037. The only exception to this is air quality, but particulate matter targets cannot sustain the well-being of interconnected, complex ecosystems across the UK over the next 15 years. In the absence of binding interim targets, the long-term targets will be the only binding obligations on the government that the OEP can enforce. Yet, the 15-year period that defines long term targets means there will be enforcement lags until 2037. There is little the OEP can achieve in respect of the priority area targets apart from ensuring that government decision-making complies with environmental law.

Where a public authority fails to comply with environmental law and that failure is serious, the OEP has the power to issue a decision notice and set out the steps it considers necessary for the authority to ‘remedy, mitigate and/or prevent reoccurrence of the failure’ (s35(2)). Once this notice is distributed, the OEP may apply to the court for an environmental review (s37). Yet, the court can only issue a ‘statement of non-compliance’, which doesn’t reflect the validity of conduct for which the statement was given (s37(6)-(7)). Moreover, the remedies available are only those that would be available on an application for judicial review, other than damages (s37(8)). The remedies available under the judicial review process do not allow claimants to challenge the substantive merits of the decisions in question, only whether they are lawful or unlawful. This means that there remains little way of effectively challenging public authorities’ ‘bad’ environmental decisions that are enshrined in law (e.g. inadequate long-term targets), apart from highlighting their non-compliance.

Provisions relating to environmental review could have balanced this injustice. However, an amendment (s37(12)) was inserted in the Debate Stage that the environmental review will be conducted by the High Court in England, Wales and Northern Ireland. Previously, it was expected that the review process should sit within the Upper Tribunal, which could make better use of  environmental experts in these reviews. The lack of specialist oversight in reviews of complex environmental decisions further erodes the adequacy of the enforcement functions of the OEP.

Whilst the High Court is available for the OEP (s38) and the public to bring judicial review to challenge the legality of environmental enforcement decisions, the current, and potentially restrictive ‘streamlined’ future, state of judicial review will impede effective access to environmental justice in terms of the Aarhus Convention. Although the ‘substantially different outcome’ requirement doesn’t apply here (s38(3)), issues of standing, time limits, the complexity of environmental cases and the declining availability of legal aid will make it time consuming and expensive for the average member of the public, who does not have specialist legal expertise, to bring a case. It remains unclear what the best way to challenge government decisions will be. Without the ‘teeth’ it needs to openly criticise and hold the government to account, it is seems implausible that the OEP will be able to enforce anything but a greenwashed ‘business as usual’ approach to environmental governance.

Due Diligence on Forest Risk Commodities

The potential benefits of the Environment Bill’s domestic measures are arguably worthless without tackling imported environmental degradation. The Environment Bill sets out new laws regarding the regulation of forest risk commodities, such as cocoa and palm oil (s107). The supply chains for these commodities require permanent land conversion and contribute extensively to deforestation, biodiversity loss and greenhouse gas emissions. Therefore, the embodied deforestation (i.e. the deforestation that is embodied in the production of these commodities) that the UK is responsible for must be addressed. Accordingly, the requirement in Schedule 16, Part 1 for regulated UK persons not to use specified commodities in their commercial activities in the UK unless they have established a system of due diligence and complied with relevant local laws (s2-3) is welcome. On its face, the Bill provides a layer of protection for ensuring that these commodities are not sourced from sources engaging in illegal deforestation.

However, the obligations appear to only apply to ‘illegal’ deforestation under the relevant laws of the exporting country. This is an issue as national laws often fail to protect the rights of forest communities, who experience injustice and are often subjected to violence, deprived of their free, prior and informed consent, and lack secure customary land tenure in addition to deforestation. Illegal logging does not occur in a vacuum. Whilst protecting biodiversity and improving the natural environment will require deforestation-free supply chains, the low standard loopholes that exist within the current draft of the Bill will allow companies to evade their obligations without effectively protecting human rights, adhering to international environmental standards and upholding environmental justice.

Cautious Pessimism

As it continues to make its way through Parliament, it remains to be seen whether further amendments to the Bill will rectify these issues. For this legislation to truly be ‘world beating’ it needs to incorporate more stringent obligations on the government and corporations to allow for the protection of the environment and human rights, alongside independent and effective environmental governance that holds public authorities to account. A healthy, functioning socio-natural environment requires the government to adhere to and robustly implement the environmental rule of law. In its current state, the Environment Bill does not represent such a commitment.

Foreign Investment Protection and Environmental Governance in Nigeria

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Jude Nnodum

This post is by Jude Nnodum (Doctoral Researcher and Tutor in Law at Sussex and Associate Editor of LaPSe of Reason). It summarises the findings so far from Jude’s ongoing PhD research, which applies Third World Approaches to International Law to analyse the relationship between international investment law and environmental protections.

Introduction

The present piece is a summarised version of my ongoing thesis. My research focuses on the potential legal impact the rules of international investment law, as contained in Nigeria’s investment treaties and applied by investor-state arbitration, may have on Nigeria’s environmental governance. In other words, my thesis answers the question: whether Nigeria’s international obligations to protect the interests of foreign investors as prescribed by investment rules could stifle domestic measures adopted to protect public interests such as the environment. In the next section I set out background on investor-state arbitration, followed by setting out the theoretical approach of the thesis, its key arguments, and tentative findings.

Background: Investor-State Arbitration and the Environment

One may wonder what states like Mexico, Peru and Ecuador have in common. Aside from largely being capital importing non-Western states, and as a result, hosting foreign investment within their territories, they have, more importantly, had claims successfully brought against them before investor-state arbitration tribunals on account of their policy measures, which were alleged to have infringed on the rights of foreign investors as protected in international law.

Development operations including those by foreign-owned corporations have been known to cause devastating effects on the environment. States in the Third World have been most affected, largely due to the lax environmental regulation regime. For example, environmental degradation in local communities in Nigeria resulting from petroleum exploration and production activities have been well documented.

Investor-state disputes such as those mentioned above come about when the State (either at the national or local level) in an effort to protect the environment (as well as the interests of the local population) adopts a more stringent environmental measure regulating the activities of foreign investors. However, feeling aggrieved by the policy measure, a foreign  investor may institute an action against the host state, claiming damages in millions (and sometimes billions) of dollars, for investor rights infringement as provided for under a foreign investment protection framework – most often an investment treaty and in some cases an investment contract or a foreign investment protection law.

For example, in 2000 and 2003, almost $17 million and $5.5 million were awarded to investors following tribunal findings against Mexico for taking regulatory measures to protect the environment from the devastating activities of foreign-owned corporations. The cases above are only a few examples in a long list of cases instituted against host states (and often with some success) for measures taken either to protect the environment or, more generally, to promote the objectives of sustainable development. This underscores the financial impact of protecting the interests of foreign investors in international law, and more importantly, how the enforcing of foreign investment protection rules may constrain efforts of a host state to protect the environment. 

Protecting the Interests of Foreign Investors and the Environment: A Critical Analysis

In light of the above, my research adopts Third World Approaches to International Law (TWAIL), as a critical legal scholarship, to provide an alternative and critical analysis of the interaction between the protection of foreign investment and the environment. TWAIL reveals that the origins, development, spread and application of the rules of international (investment) law is not only embedded in Western dominance, power relations and politics, and therefore a reflection of Western hegemony, but protects those specific interests for which it was designed for (such as those of foreign investors).

The interrelationship between protecting the interests of foreign investors and the environment has been subject of substantial legal scholarship.[1] However, the approach taken by mainstream scholarship in analysing the interaction between foreign investment protection and the environment is largely legalistic – that is, focussed on the applicable legal text without considering the social, economic and political context. For instance, according to the abstract of Vinuales’s work on the subject, ‘it provides a detailed analysis of all the major legal issues on the basis of comprehensive study of the jurisprudence from investment tribunals… and other adjudicatory mechanisms’. Such an approach takes for granted that the rules and principles that are the subject of analysis – in this case, the rules of international investment law – are neutral, objective and universal in nature.

Some issues that are often muted in the mainstream scholarship in the area of international investment law include but are not exclusive to the following:

  • How did the rules of this area of international law emerge?
  • How did the rules of international investment law become universally applicable?
  • Whose interests does international investment law protect?
  • Are certain interests protected to the exclusion of others?
  • What interests are affected by such exclusion?
  • Whose interests are excluded?

My research attempts to address these issues. In answering these questions, the research highlights that the rules of international investment law (for instance, as currently formulated under bilateral investment treaties, BITs) emerged, developed and are applied in such a manner that they prioritise economic interests over non-economic interests. As a result, those whose interests are not aligned – that is, at variance with the interests of foreign investors – are likely to be disregarded and subdued by the mechanism of the regime.

International Investment Law: A Reflection of Western Capitalist Hegemony

Drawing from this, my thesis advances two main arguments. First, it argues that international investment law, to a large extent, reflects Western legal values. In the sense that it emerged out of Western legal culture, which favoured capitalism (as manifested in the expansion of trade and investment), and as a result, was conceived to protect the economic interests of traders and investors. Further, being of Western origin, the rules of investment law do not represent non-Western legal culture, and therefore will likely be aversive to resultant interests.

To show this, my research begins by reflecting on the origins of the rules of international law on the protection of foreign investors, its development over time, and how it became applicable to a Third World state like Nigeria. It also undertakes a case study of Nigeria’s network of investment treaties: first, by examining the coherence of investment treaty provisions, particularly the fair and equitable treatment (FET) provisions; and second, by investigating whether Nigeria’s investment treaties on aggregate serve environmental concerns by way of including appropriate environmental language.

Second, considering the above, it argues that the manner the rules of international investment law will be applied has the potential to disfavour non-Western states, particularly those from the Third World. This means that investment rules will often seek to prioritise the interests that represent Western legal culture over those that are incompatible. In other words, the economic interests of foreign investors may predominantly trump non-economic interests such the environment, especially when it involves Third World states and their people.

To test the position above, I analyse how investment rules are applied and interpreted in cases involving Third World states. To this end, my research critically analyses four investment disputes: Metalclad v Mexico; Tecmed v Mexico; Bear Creek v Peru; and Copper Mesa Mining v Ecuador. These cases were contested before investor-state arbitration involving Third World states on account of policy measures adopted to protect matters of public interest, especially the environment, which were alleged to affect the interests of foreign investors.

Investment Rules, the Third World and the Environment

My research makes two tentative findings. First, my thesis confirms some propositions of TWAIL scholarship about the rules of international (investment) law:

  • that they emerged from Western legal culture;
  • extended outside Europe in the wake of trade and investment expansion (coinciding with the rise of capitalism);
  • became (universally) applicable to non-European states, including the Third World, first through imperialism and subsequently through neoliberalism;
  • but still maintain the core purpose for which they were designed – that is, to protect the economic/commercial interests of their originators.

Second, based on the finding that not only are international investment law rules a reflection of Western legal culture (which favoured the expansion of trade and investment) and a manifestation of the various forms of Western domination, they were originally conceived to protect the economic interests of foreign investors – especially against the legal culture of non-Western states. By this, investment rules, in the manner they are structured and applied, are unlikely to acknowledge or accommodate the interests of Third World states and their people, including when it involves public interest matters such as the environment.

Concluding Remarks

International investment law, as an area of international law that protects the interests of foreign investors, is a reflection of Western hegemony. This calls for a rethink in the approach in which the interaction between protecting foreign investment and the environment is analysed. Therefore, to better address the issue concerning the impact of international investment law rules on environmental governance, there is the need to appreciate that the very basis of investment rules is rooted in Western legal culture, which prioritises private economic interests above other interests, including those that concern the public – for instance, the environment. More, that the manner investment rules are presently deployed – through investment treaties – is reminiscent of practices of dominance and imposition, of which the Third World were generally subjected to through imperialism.


[1] To account for the prominence of this area of study, aside from a plethora of journal articles, several books and edited books have been dedicated to the study of the intersection of foreign investment and the environment. For some examples of monographs, see Jorge E Vinuales, Foreign Investment and the Environment in International Law (Cambridge 2012); Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (Cambridge 2009); Andrea Kulick, Global Public Interest in International Investment Law (Cambridge 2012). For an example of edited books, see Yulia Levashova, Tineke Lambooy and Ige Dekker (eds), Bridging the Gap between International Investment Law and the Environment (Eleven International Publishing 2016).