X Close

The UCL Centre for Access to Justice

Home

Pro Bono Blog

Menu

Archive for the 'Law and Society' Category

‘Reflecting On My Experience As A Grassroots Project Volunteer’, written by Ila Tyagi

RoseIreland10 April 2017

In this blog post Ila Tyagi, an LLM student at UCL, reflects on her experience volunteering for the Grassroots Human Rights Project and how the education system in the UK compares to the education system in her home country, India.

When I first entered the state school in Eastlea, I couldn’t believe the kind of amenities and infrastructure a publicly funded school in UK could afford. Such facilities are not available even in some of the wealthier schools in India. We were required to pose for a photo-id for record keeping purposes. But much before that was a thoroughly conducted Disclosure Barring Services Check to ensure that the volunteers did not have a criminal record or a history of violence towards children. To conduct such procedural formalities for ensuring the safety of children was very impressive to me.

While undergoing the training for the Grassroots Human Rights Project, we were told to encourage participatory learning. This meant that we were required to assist the children in coming up their own answers and gently guide them towards the correct answer. The fact that we were not allowed to be dismissive or critical was remarkable to me. This progressive and inclusive approach helps to ensure that little or no harm is inflicted upon a child’s mental well-being and self-esteem during his/her formative years. These formative years are crucial in shaping who the child becomes as an adult and as such it is important to acknowledge that shaming or berating the child for answering a question incorrectly may adversely impact his/her confidence and estimation of self-worth.

I know that I am stating the obvious but shaming and criticising a child for giving the wrong answer is common across the lower-rung of schools in small-town India (which is to say a majority of schools across India). Some schools even believe in corporal punishment despite it being illegal in India. I remember being slapped for failing to attempt a math problem correctly, and being hit on my knuckles with a wooden ruler just because the teacher felt like hitting every child in the class that day. But to be fair, that was when I was studying in one of the worst schools in a small town in India. I will concede that there are many modern and progressive schools across the bigger cities in India and the government has enacted a law to ban corporal punishment in schools. But the law is poorly implemented especially in the Indian hinterland.

While teaching the children, I found it difficult to engage in a proper discussion of the issues at hand. Perhaps, it was to do with my own inability to assemble too many opinions at one time. It could possibly be attributed to rarely ever being taught like that in school. I admired the skill with which my colleagues could gather different opinions and present a succinct conclusion at the end of their presentation. The students were so impressed with one of my colleagues that they gave her a loud round of applause after she finished presenting.

But what was more surprising and clearly the highlight of my volunteering experience was the ability of these adolescents to engage in a meaningful discussion about human rights. Not only were they able to ask intelligent and rhetorical questions highlighting that there was no real difference between active and passive euthanasia, but they were also able to support their arguments in favour of or against the topic of discussion with sound logic and good reason. For example – when asked whether a murderer should be sentenced to death they counter questioned us by asking what if the murderer was suffering from a mental illnesses, could he not then plead the defence of insanity? To me this was surprising because I did not even know that mental health problems or a defence of insanity existed when I was their age.

Perhaps the students’ critical and analytical reasoning abilities could be attributed to the emphasis placed on the value of an individual’s opinion in the UK. The fact that we were not to disregard a child’s opinion during our training session is illustrative of the importance given to developing an independent opinion in the UK. Indeed, this is what our lecturers talk about when asking us to write essays for our assessment. This is something that I truly struggled with when I first came to study in the UK. It was difficult for me to assemble various pieces of information in my head to present a logical opinion or any opinion at all. May be this can be attributed to a system of teaching in India that suffocates independent thought and analysis. Many schools across India expect us to regurgitate the textbook in the exam without any analysis. At my previous university (which is one of the top universities in India), we were instructed to present a neutral answer in the opinion-based essay questions in order to avoid offending the examiner through our opinions. I think this practice hinders the development of the reasoning skills necessary to deal with the complexities of our professional life. The right to opinion is a necessary underpinning of a democratic society and perhaps the world’s largest democracy could learn something from one of the world’s oldest democracies on this matter.

However, what struck me was that the students were involved in a campaign against Donald Trump for Amnesty International. When asked why they were supporting the campaign, the students answered by saying that it was because he was racist and had no respect for women. I was amazed to see how much these thirteen year olds knew about issues like racism and sexism. I am of the opinion that Indian schools should incorporate raising awareness about racism and sexism in their curriculum considering the attitude of many Indians towards their fellow dark-skinned Indians, the African students studying in India and people from northeastern parts of India. On the issue of respect for women, India has infamously made international headlines for the many instances of sexual violence against women that take place regularly across the country. However, I would like to emphasise that there is a growing class of Indians who respect women and abhor racism but they are in the minority. I truly believe that education is the best way to solve such problems in India.

I believe that if India truly wants to emerge as the superpower it so desires to be then a starting step would be to reform the education system to promote critical reasoning and logical thinking rather than regurgitation because good education aids both personal development of an individual and the collective development of a society. India needs to act big and act soon before her demographic dividend turns into a demographic disaster. Perhaps, India could start by modeling its education system roughly along the lines of the one in UK.

In conclusion, volunteering for the Grassroots Project was an eye-opening experience. It compelled me to question the merits of the education system in my own country. It helped me to analyse my own weaknesses and learn from my colleagues and the students that I was teaching. It prompted me to reflect on my educational experiences and compare them with those of my students. It was a great learning experience for me. Grassroots Human Rights Project was different, refreshing and definitely more worth my while than I was expecting it to be.

To find out more about pro bono opportunities for law students at UCL, please visit the CAJ website.

‘Human Rights as a Western Construct: India as an Example’ written by Ila Tyagi

RoseIreland10 April 2017

In this blog post, LLM student Ila Tyagi argues against ‘universal human rights’ as they are typically understood, drawing from cultural relativist arguments and using India as an example.

In many developing countries, human rights are often considered to be western concepts imposed on them by foreign governments and treaties. The problem lies in the narrow and egocentric definition of human rights[1]. There are many arguments against the universality of human rights. This essay aims to explain some of the arguments against human rights and presents a solution to universalise human rights.

Critics of human rights argue that the human rights system mirrors the ideas of good governance that are grounded in the “common historical experiences” of the western countries[2]. Such a system could only successfully prevail in countries with abundant wealth, resources and good social order. [3] While looking at the history of human rights, it becomes clear that the precursors to the Universal Declaration of Human Rights (UDHR) were American Declaration of Independence and the French Declaration of Rights of Man. This historical fact helps to crystallise the critics’ view human rights are indeed a western concept. However, this simplified view overlooks the fact that a majority of the countries involved in the formation of UDHR were non-western countries like India and China[4].

There is also a cultural argument against human rights, which suggests that it is impossible to adopt universal human rights in a world where there is plurality of cultures[5]. They further argue that western culture is centered on the rights of the individual whereas most African and Asian cultures value the community[6] and believe in collective rights[7]. For example in the Indian culture, rights are subordinated in importance to duty[8]. Moreover, many African societies believe in enforcing collective rights over individual rights[9]. It is difficult to impose the concepts of women’s rights on societies like India where society believes that a woman’s behavior is crucial to the preservation of its honour[10]. Therefore, there is clash of civilisations between the western developed world and the non-western developing world. The latter perceives the imposition of international human rights treaties as an act of cultural imperialism because the theory and practice of human rights exhibits an act of hubris similar to the civilisational missions the western countries undertook in the past[11].  It is viewed as an attempt to impose alien western cultural values on them[12] and as a facade to intervene in their internal political affairs[13].

There is also an argument claiming human rights are a barrier to rapid economic development. According to a study compiled by researchers at the Centre for Children’s Movement for Civic Awareness in India, most Indian youths demonstrated “authoritarian leanings” and were skeptical about the advantages of democracy[14]. This is largely because some Indian youth believe that relinquishing human rights is a small sacrifice for bigger results like economic development [15]. These authoritarian inclinations can also be attributed to rampant corruption[16] in the government organisations and indecisive coalition governments. Furthermore, the Indian politicians often engage in divisive politics based on caste and religion in order to amass votes from the minorities and people from their communities. This practice has led to people voting their caste rather than casting their vote.  The youth perceive the presence of too many regional and communal interests in the parliament as a hindrance to the achievement of a supreme national goal i.e. economic development. Many Indians believe that a benign dictator or a strong central government is the only means of achieving India’s ambitions. This desire for a stronger central government is what fuelled the rise of Bhartiya Janta Party and Prime Minister Narendra Modi to power. It is common amongst Indians to compare India’s achievements with those of China in the fields of infrastructure building, economic growth and even Olympic medals (of which China has plenty and India just a handful).

In order to illustrate my point, let us compare the development of an infrastructure project in a democratic developing country like India and a developing country based on authoritarian capitalism. In the authoritarian country, building an airport would probably take a few months because the government would not be hassled by issues of compensation, eviction and protestors. However, in a democracy like India where there is freedom of association, free press and the freedom to protest; the government would have to seek people’s permission in order to evict them. Many people would refuse to evict their houses and rightfully so if adequate compensation is not paid to them. Various interest groups would protest for the rights of the vulnerable people who are affected by the project. The free media would highlight the negative environmental impacts of building an airport. Some interests groups may even commence public interest litigation against the government and the corporate entities involved in the project. Thus, it might take years to complete the project. This would mean the democratic country might develop at the slow pace of an elephant as opposed to the swiftness of the authoritarian dragon.

In addition, the governments of many developing countries argue that the right to development is more important than the right to political liberties[17]. Some countries with higher crime rates might argue that the need for right to security justifies the harsh enforcement measures used to protect this right[18]. Many countries justify the use of torture techniques used in prison interviews as necessary to solve the case[19]. The fact that most developing countries do not have well guarded prisons is also used to support using harsh interrogation methods and prison sentences[20]. Under the human rights laws, the developing countries are required to incorporate major institutional and behavioral changes while the western countries can maintain their status quo. The developing countries are now facing challenges that the West had encountered in a distant past[21] when its own human rights credentials were stained by practices like slavery, racial segregation and anti-Semitism[22].

In conclusion, a distinction must be drawn between the universality of human rights and the uniformity of human rights[23].  In order to promote a universal approach to human rights the West needs to recognise the failures of current human rights system in promoting human rights in the developing world and rectify its policy accordingly[24]. Perhaps a policy of opting in and opting out of certain provisions may serve the interests of those societies that do not agree with all the provisions in various human rights declarations[25]. However, coercive practices like female circumcision and subjugation of women in various cultures should be condemned because no rights exist when one is coerced to adopt certain cultural beliefs or practices[26]. The new model for development should be inclusive and not alienate vulnerable groups of people. We should strive to assert human rights in accordance with each country’s histories and traditions rather than as a rigid foreign concept[27]. The one-size fits all approach should be abandoned in favour of a flexible approach to suit the needs of our diverse world.

[1] Stephen Kinzer, ‘End Human Rights Imperialism Now’ The Guardian (London 31 December 2010) <https://www.theguardian.com/commentisfree/cifamerica/2010/dec/31/human-rights-imperialism-james-hoge >accessed 26 February 2017

[2] Eric Posner, ‘The Case Against Human Rights’ The Guardian (London 4 December 2014) < https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 26 February 2017

[3] Ibid.

[4] Shashi Tharoor, ‘ Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

[5] Ibid.

[6]Ibid.

[7] Clancy Wright, ‘ Western Human Rights in Diverse World: Cultural Imperialism or Relativism?’ (E-International Relations Student, 25 April 2014) < http://www.e-ir.info/2014/04/25/western-human-rights-in-a-diverse-world-cultural-suppression-or-relativism/> accessed 25 February 2017

[8] Shashi Tharoor, ‘ Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

[9]Clancy Wright, ‘ Western Human Rights in Diverse World: Cultural Imperialism or Relativism?’ (E-International Relations Student, 25 April 2014) < http://www.e-ir.info/2014/04/25/western-human-rights-in-a-diverse-world-cultural-suppression-or-relativism/> accessed 25 February 2017

[10] Shashi Tharoor, ‘ Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

[11] Eric Posner, ‘The Case Against Human Rights’ The Guardian (London 4 December 2014) < https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 26 February 2017

[12] Shashi Tharoor, ‘ Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

[13] Eric Posner, ‘The Case Against Human Rights’ The Guardian (London 4 December 2014) < https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 26 February 2017

[14] Kanishk Tharoor, ‘Why Many Indians and Americans have Authoritarian Leanings?’ Hindustan Times (New Delhi 30 December 2016)<http://www.hindustantimes.com/columns/why-many-young-indians-and-americans-have-authoritarian-leanings/story-zSizwsoDPJKvOm5vSKmnUJ.html > accessed on 26 February 2016

[15] Shashi Tharoor, ‘ Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

 

[16] Kanishk Tharoor, ‘Why Many Indians and Americans have Authoritarian Leanings?’ Hindustan Times (New Delhi 30 December 2016)<http://www.hindustantimes.com/columns/why-many-young-indians-and-americans-have-authoritarian-leanings/story-zSizwsoDPJKvOm5vSKmnUJ.html > accessed on 26 February 2016

[17] Eric Posner, ‘The Case Against Human Rights’ The Guardian (London 4 December 2014) < https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 26 February 2017

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Shashi Tharoor, ‘Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

[23] Ibid.

[24] Eric Posner, ‘The Case Against Human Rights’ The Guardian (London 4 December 2014) < https://www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights> accessed 26 February 2017

[25] Shashi Tharoor, ‘ Are Human Rights Universal? World Policy Journal 2000 vol 26 < http://www.worldpolicy.org/tharoor.html> accessed 25 February 2017

[26] Ibid.

[27] Ibid.

The Impact of Brexit on Human Rights in the UK, written by Ila Tyagi

RoseIreland25 January 2017

In her second blog post Ila Tyagi, an LLM student in International Commercial Law at UCL, writes about the human rights implications of Brexit.

Introduction  

A hard Brexit would have a significant impact on the human rights framework in the UK. This is because UK derives a large portion of its human rights from EU law. Post-Brexit, the UK would not be required to comply with the various EU laws concerning human rights [1].

 The Issue of Residency Rights 

Residence rights of EU nationals in the UK and those of UK nationals in the EU member states are perhaps the most important human rights concern. These rights are being heavily negotiated and it is imperative that the government addresses this concern fully and quickly. A loss of these residence rights may mean a loss of homes and jobs for millions of people across the European continent [2].

The EU Sub Justice Committee of House of Lords has obtained evidence that shows that some of the EU citizens will not meet the criteria for a UK permanent residency despite living in the UK for over five years [3].  There is a potential for clogging the courts with lengthy litigation if the UK government decides to deport EU nationals [4]. However, this seems unlikely.

A joint committee of House of Lords and House of Commons has suggested in its report that the government address the issue of residency rights urgently [5]. They suggest that the government should give an undertaking to the effect that those people legally resident at a permanent cut off date would be guaranteed permanent residence rights [6]. This would help to ease the uncertainty surrounding this issue.

EU Charter for Fundamental Rights

Another issue of concern is the effect that Brexit will have on the EU Charter of Fundamental Rights (EUCFR). It applies to all EU Member States because it was incorporated into the Lisbon Treaty. It encompasses political, social, civil and economic rights along with rights for the elderly and the disabled [7]. These rights can be enforced in the courts of UK and ultimately the Court of Justice of the European Union. However, it is difficult to enforce these rights directly because not all of its provisions have a direct effect. Nevertheless, it forms an important measure for protection of human rights in the UK [8].

Brexit would mean that the Charter of Fundamental Rights would not apply to the UK anymore and that CJEU’s jurisdiction over UK is lost [9]. It remains to be seen what the UK government proposes to do with EUCFR guidelines and rights.

Workers’ Rights

The UK derives a large portion of its employment and workers’ rights from EU law.  Parental leave to care for a sick child or an infant, maternity leave, equal pay for equal work, 48 hours time off per week, rights against discrimination, protections for agency workers, and some health and safety concerns are the rights that could be affected by Brexit. This is largely because many of these rights or parts of them were not popular with the UK government when proposed. Therefore, there is a chance they might be repealed or amended in a post-Brexit Britain. However, PM Theresa May has given assurances that the existing protections for workers’ rights will be guaranteed so long as she is the Prime Minister [10].

European Convention on Human Rights (ECHR)

ECHR is often confused with EUCFR but it is important to note that ECHR is completely distinct from the EU. It is a separate agreement to which many EU Member States are signatories. The rights set out under ECHR can be enforced through the court of European Court of Human Rights in Strasbourg [11].  Even though the decisions of the Strasbourg courts are not binding, some of them have been incorporated as a part of EUCFR, which is binding on all EU Member States. Additionally, the UK Human Rights Act 1998 provides that UK courts should take into account any decision, declaration, judgment or opinion of the Strasbourg Court [12].  Therefore, the rights guaranteed under ECHR are protected through the UK Human Rights Act 1998.

Brexit does not affect the ECHR rights directly but there is a possibility that this might change. The Eurosceptic wing of Conservative Party is also skeptical about the ECHR. Even though there isn’t a formal proposal to leave the ECHR, many members of former PM David Cameron’s cabinet had argued for it [13].

Human Rights organisations like Liberty are campaigning against this because they believe that in a post-Brexit Britain, ECHR will be fundamental to preserving human rights in UK [14].

The Great Repeal Bill

The Great Repeal Bill is an instrument through which the government proposes to repeal the European Communities Act 1972 and put the application of EU law in the UK to rest [15]. This bill is supposed to be introduced in the parliamentary session commencing in February 2017. Since we know that EU law is the basis of many fundamental rights in the UK, the status of these rights remains unclear with reference to the Great Repeal Bill. There is no clear indication on whether the UK government intends to amend or repeal some of these rights [16].

The parliamentary joint committee report suggests that the government should lay out a detailed list of all fundamental rights under EU law and the government’s intentions towards their future [17]. The committee suggests that this should be done before introducing the repeal bill. They also recommend a draft publication of the repeal bill so that it can be subject to detailed scrutiny by the joint legislative committee [18].

Conclusion

     As seen above, Brexit has strong implications for the human rights protection in the UK. In order, to mitigate the uncertainty surrounding this issue, the government should act swiftly. A swift and clear plan of action would help to reduce the distress caused by the uncertainty surrounding the loss of jobs and homes that could be a potential consequence of Brexit.

[1] http://www.publications.parliament.uk/pa/jt201617/jtselect/jtrights/695/695.pdf

[2] Ibid. Page 4

[3] Ibid.

[4] Ibid. Page 5

[5] Ibid.

[6] Ibid.

[7] https://www.disabilityrightsuk.org/brexit-and-human-rights

[8]https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/news-parliament-2015/brexit-human-rights-launch-16-17/

[9] n 3

[10] http://www.independent.co.uk/news/uk/home-news/brexit-latest-news-10-ways-eu-protects-british-workers-rights-in-danger-european-union-a7531366.html

[11] n7

[12] ibid.

[13] http://rightsinfo.org/brexit-doesnt-mean-uk-human-rights/

[14] https://www.liberty-human-rights.org.uk/human-rights/human-rights-uk-after-brexit

[15] n1 pg 6

[16] ibid.

[17] ibid.

[18] ibid.

What Impact is Capitalism having on Democracy: From an Emile Durkheim functionalist perspective, written by Emmanuel Bazimya

RoseIreland15 December 2016

Emmanuel Bazimya, an LLM student in International Banking and Finance Law at UCL, considers the impact of capitalism on democracy in light of the recent presidential election in the United States.

It is a well-established right that individuals in a democracy have the right to information that allows them to make informed decisions with regards to their governance. Following the recent presidential election in the United States, the question this post is trying to ask is if this basic right under a democracy is being threatened due to the growing influence of capitalism on key social institutions. To examine this notion, I rely on Emile Durkheim’s functionalism theory with the use of the media as a structural institution with a manifest intention of informing the electorate so that they may make an informed decision when they cast their ballot in a general election.

Emile Durkheim’s Functionalism attempts to explain social behavior in a society from a macro level perspective. This theory views society as an organism in which each structure as a component of this organism contributes to the stability of society as a whole. His theory is premised on the assumption that society is made up of inter-connected multiple structures that work to form a state of equilibrium at any given point in time and once a significant social change occurs then the institutions that serve these needs must adjust to such change to bring society back into that state of equilibrium. Capitalism is this significate social change that brings about competition and the need to maximize profits by corporations. The question is whether the media is making the necessary adjustments to address this shift caused by the need of mass media outlets to maximize profitability for their shareholders.

One of these structures are the institutions that are meant to serve the needs of society such as the Judiciary, Education institutions like a University, the core Family, Government and for our purposes the Media among others. Another such structure are Social facts which are ways of thinking, values, cultural norms and attitudes that transcend any one individual, that existed before anyone individual and will continue to exist for generations after. These social facts have a subconscious effect on an individual in that the individual will not release the influence being exerted by such social facts unless they attempt to resist their influence such as the law or religious beliefs. These structures have known manifest functions which serve to keep society in a state of stability, but they also have unintended functions known as latent functions.

In this case the mass media in a democracy during an election season would serve the manifest function of informing their electorate to ensure that they make better informed decision about their governance when they cast their ballot.

However, due to commercial nature of mass media outlets these corporations also seek to maximize profits with the unintended consequence of not properly informing their viewers on issues that matter but rather focusing on coverage of issues that will increase the network’s rating and boost profits. Les Moonves, executive chairman and CEO of CBS during a speech at the Morgan Stanley Technology, Media and Telecom Conference said “It may not be good for America, but it’s damn good for CBS,” in reference to all the coverage Donald Trump was getting over racist or xenophobic remarks as opposed to any inquiries as to details of his policy suggestions. There have been reports of foreign leaders being uncertain of Donald trump’s foreign policy plans in spite of the estimated 4.4billion U.S dollars of coverage that the 2016 Presidential election received.

The Atlantic put together a daily dashboard tracking national television coverage of the 2016 presidential election using data from the Internet Archive’s TV News Archive and processed by the GDELT Project, based on the number of mentions each candidate received. To no surprise Donald Trump received about 193,608 more mentions than the next candidate from both major parties. Research shows that there is a correlation between the number of times a candidate gets mentioned on the news and their popularity. The causation is however debatable as to whether it is the popularity that causes the increase in coverage or if it is the coverage that causes the increase in popularity.

Media coverage seems to be driven more and more by its latent function as opposed to its manifest function in a democratic society. This can be best illustrated by the spike in the polls and media coverage of Donald Trump after he suggested placing a temporary ban on all Muslims entering the United States. During the 2016 Presidential election, the press seemed to dramatize Donald Trump’s controversial remarks to keep the attention of its viewers.

blogtable1

Number of articles mentioning UKIP (orange) versus percentage who say they would vote for UKIP (blue). Source

blogtable2

Source: Weekly online media mentions of Trump vs. national primary polls.

 

 

 

 

 

While others factors play a significant role in whether a person votes and whom they vote for such as their party affiliations and the personal qualities of the candidates, these factors, whether the public is aware of it or not, are informed to a larger extent by the media coverage they are exposed to.

While Functionalism theory is not without criticism such as not giving enough regard to the function of the individual in society and being unable to explain social change, it remains a useful tool to demonstrate how inter-connected and inter-dependent people in a society are. The media has to adjust to the social changes being brought about by the need for the media to maximize profits while still serving its manifest function of keeping its electorate well informed, to enable them to make productive decisions with regard to their governance.