MINDFUL JOURNAL OF ETHICS 2018 – 2019
Journal of Ethics
2018 – 2019
Printed with COACH HOUSE BOOKS, April 2019, Toronto, ON. Thank you to sponsorship from Provost Mayo Moran, Dean of Arts Michael Ratcliffe, the team of ASSU, and the Ethics, Society & Law Students’ Association. Cover photo: “Eiko in Fukushima, Minami Soma, Shiogama Shrine, 3 August 2016, no. 711.” By William Johnston, a professor of history at Wesleyan University in Middletown, Connecticut, USA. ii
Letter from the Editor
I am proud to present the tenth edition of Mindful Journal of Ethics, 2018 – 2019. Writing on ethical issues is no easy task: it requires the identification of a gap, a discrepancy, a divisive unfairness in one discipline or another, and it attempts to make a compelling case for why or how we can work towards its repair. Ethics as a field of intellectual inquiry demands that we can ‒ and must ‒ continuously do better. This issue highlights a diversity of critical ethical topics currently being researched by students at the University of Toronto. From a global framework, Wu addresses the effectiveness of international humanitarian law enforcement in multinational operations. Narrowing in on Canada, Khalid provides an analytical assessment of Canadian regulations of indefinite arbitrary detention, while Hoffman and Qiu follow with interrogations on the failure of Bill C-14 and the precarity of Temporary Foreign Worker Programmes, respectively. Similarly focused on the healthcare sector, Smith discusses the ethical implications of two proposed solutions to the “10/90 gap” of spending. Turning next to theoretical analysis, Zufelt argues for a reclamation of “gratitude” as moral in the context of William Godwin’s utilitarian theories. Lastly, Attarzadeh locates an “ecological ethics” of reading through the close analysis of two poems, asking us to recognize and appreciate the radical wildness of the other. Scattered throughout our academic content is “Words from the Wise,” a new integration to Mindful in which student editors interview alumni of the Ethics, Society, and Law program on their post-university career paths. We are grateful to alumni Tarik Bacchus and Anthony Morgan for their participation. Thank you to editors Chris Sims and Nicholas Slawnych for their work in conducting these interviews. I would like, finally, to thank the integral workers behind this year’s issue, which marks the inaugural edition of Mindful in print as well as digital: the editorial masthead, the Trin One peer-reviewers, our design editor Calahan Janik-Jones, Professor Simone Davis, Professor John Duncan, and Professor Michael Kessler. And a huge thank you to our faculty advisor, Professor Stephanie Silverman, whose dedicated guidance has been the single lighthouse helping me navigate the stormy waters of academic journal editing — this year’s issue of Mindful would not have come to life without your mentorship. — Emmy Fu Editor-in-Chief, 2018 – 2019
Senior Editors Alex Côté Rinna Diamantakos Susha Guan Andrew Irwin Shamurad Lodhi Natalia Majda Ethan Raymond Christopher Sims Nicholas Slawnych Gregory Venizelos Junior Editors Rebeca Ancer Kathryn Mannie Andrew Park Henry Rhyu Nichole Shi Nicole Vucemilo Trin One Peer Reviewers Isabella Giancola Hikmat Jamal Yiyao (Wenny) Jin
Table of Contents
The Challenges of Legal Interoperability: Enforcing International Humanitarian Law in Multinational Operations BY CINDY WU
Indefinite Arbitrary Detention: Detention Review in Canada BY ALMEERA KHALID
Words from the Wise: Tarik Bacchus 21
The Failure of Bill C-14 BY KATHERINE HOFFMAN
Health, Access, and Managed Migration Schemes BY YU (RAINNY) QIU
Mediated-Markets and the Health Impact Fund BY OLIVIA SMITH
Words from the Wise: Anthony Morgan 43
Overlooking the Imperative: William Godwin’s “Of Justice” and the Importance of Gratitude BY BRADEN ZUFELT
“On the Strange Power of Speech”; Or, Outlining an Ecological Ethics of Reading in Henry Vaughan’s “The Book” and Rilke’s “Archaic Torso of Apollo” BY MARAL ATTARZADEH
The Challenges of Legal Interoperability Enforcing International Humanitarian Law in Multinational Operations BY CINDY WU ARIO
Articles on Responsibility of International Organizations
International humanitarian law
North Atlantic Treaty Organization
Private military companies
UN Status of Force Agreements
Troop contributing countries
Multinational operations are playing a growing role in situations of armed conflict. Equipped with more forceful mandates, peacekeeping or peace enforcement missions under the auspices of the United Nations (UN) or the North Atlantic Treaty Organization (NATO) are undertaken in novel contexts that can obfuscate the application of international humanitarian law (IHL).1 Additionally, multinational forces are increasingly being deployed into armed conflict situations because the benefits of cooperative efforts are seen as a way to offset the economic and political risks incurred in taking part in hostilities.2 In light of the increasing prevalence and complexity of multinational operations, the legal community has called for a review and improvement of the enforcement of IHL in this context. This paper will argue that the scope of IHL enforcement in multinational operations is imprecise, largely uncoordinated, and reactionary, leading to a sense of impunity amongst participants. The first section of this paper will discuss the challenges that legal interoperability, to be defined and discussed below, presents to the prevention of IHL violations in multinational operations. The second 1 Daphna Shraga, “UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage,” The American Journal of International Law 92, no. 2 (2000): 65; Torsten Stein, “Coalition Warfare and Differing Legal Obligations of Coalition Members under International Humanitarian Law,” in Legal and Ethical Lessons of NATO’s Kosovo Campaign, ed. Andru E. Wall (Newport: Naval War College, 2002), 315. 2 Marten Zwanenburg, “International Humanitarian Law Interoperability in Multinational Operations,” International Review of the Red Cross 95, no. 891 – 892 (2014): 682.
Mindful Journal of Ethics 2018–2019
section will review both methods currently in use, as well as proposed methods to overcome these challenges. The third and final section will focus on the accountability of various actors – international organizations (IOs), member states, and private military companies (PMCs) – in the event of a violation of IHL, and the need for clarity in the rules surrounding legal responsibility and remedies.
Legal Interoperability: Defining the Scope of the Problem Though the legal community generally agrees on the applicability of IHL to multinational operations, disagreement still exists surrounding the prevention of IHL violations, and how to ensure accountability in the case of such violations. Under Common Article 1 of the Geneva Conventions of 1949, all powers must respect IHL and ensure respect for IHL amongst other powers.3 Implementing adequate training programs for military forces prior to their deployment usually satisfies this dual responsibility, as IHL principles are often embedded in the rules of engagement and military codes of armed forces.4 However, this picture becomes more complicated when multiple troops are operating in the battlefield together, each armed with their own unique IHL training, rules of engagement, and practices. It is at this juncture that legal interoperability becomes key. Legal interoperability is understood to be the “ability of the forces of two or more nations to operate effectively together in the execution of assigned missions and tasks and with full respect for their legal obligations, notwithstanding the fact that nations concerned have varying legal obligations and varying interpretations of these obligations.”5 Also referred to as “unity of effort”, legal interoperability is essential to the success of all multinational operations, but is difficult to achieve because of several differences in each force’s interpretation and application of IHL. Troop contributing countries (TCCs) must first deal with disparities in concrete legal obligations under various IHL treaties. Take, for example, Operation Allied Force, the 1999 NATO Kosovo bombing campaign: all participating members except France, the United States, and Turkey ratified Additional Protocol I to the Geneva Conventions of 1949, and Turkey was the only TCC who was not party to the UN Conventional Weapons Convention.6 These differences are present in every multina3 Nachama Rosen, “How are Multinational NATO Operations Responsible for International Humanitarian Law Violations?” The Fletcher Forum of World Affairs 37, no. 3 (2013): 167. 4 Ola Engdahl, “Compliance with International Humanitarian Law in Multinational Peace Operations,” Nordic Journal of International Law 78, no. 4 (2009): 519. 5 Zwanenburg, “Interoperability in Multinational Operations,” 684. 6 Stein, “Differing Legal Obligations of Coalition Members,” 316.
The Challenges of Legal Inoperability
tional operation, as each TCC must reckon with other states operating under the constraints of treaties to which they may not be signatories. States also interpret IHL obligations differently during multinational operations in at least four areas, making it difficult to enforce IHL in a coordinated and unified manner. These four areas are: the determination of conflict status amongst international and localized conflicts;7 the status of troops;8 when civilians are considered to be directly participating in hostilities, thereby losing their combatant immunity and other protections;9 and the status and treatment of detainees.10 With a lack of coordination in these four areas of IHL, legal, operational, and political consequences often stem from multinational operations. Legal consequences include the inconsistent protection and accountability of individuals under IHL. For example, the ability to attribute responsibility to a member state will be impeded by claims by the state that they were operating under a specific IHL framework that did not include the act or omission in question. Operationally, the lack of a harmonized legal approach can lead to “national caveats”, wherein an international commander deploys a certain nation’s troops because this military action is permissible under that nation’s legal framework, whereas it would be considered a blatant contravention of IHL for other TCCs.11 When an operation is undertaken to uphold human rights or establish the rule of law, IHL violations by the multinational forces contradict their very purpose, thus weakening the public and political legitimacy of the op7 International Commission of Jurists, “The Legality and Consequences of a ‘War on Terror’,” in Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (Geneva: International Commission of Jurists, 2009), 49. 8 The 1994 Convention on the Safety of United Nations and Associated Personnel sets out protections for UN personnel, so long as these personnel are not engaged as “combatants against organized armed forces and to which the law of international armed conflict applies.” Thus, there is a clear incentive amongst TCCs to deny the status of forces as ‘combatants’ to protect their forces from the increasingly unstable and dangerous situations their troops are being deployed into (Katarina Grenfell, “Perspective on the Applicability and Application of International Humanitarian Law: The UN Context.” International Review of the Red Cross 95, no. 891 – 892 (2013): 651). 9 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. International Committee of the Red Cross, 2009: 46–60. 10 Geoffrey S. Corn, “Multi-National Operations, Unity of Effort, and the Law of Armed Conflict,” Humanitarian Policy and Conflict Research Working Paper Series (2009): 19. 11 Corn, “Multi-National Operations, Unity of Effort, and the Law of Armed Conflict,” 25; Vicki McConachie, “Coalition Operations: A Compromise or an Accommodation,” in International Law and Military Operations, ed. Michael D. Carsten (Newport: Naval War College, 2008), 246.
Mindful Journal of Ethics 2018–2019
eration, and perhaps IHL on the whole. These legal, operational, and political consequences of unclear IHL obligations demonstrate the need to improve legal interoperability during their missions.
Three Promising Approaches to Strengthening IHL in Combat Situations Observers have suggested at least three ways to solve some of these issues: (i) clarifying documents that establish the scope and purpose of the operation; (ii) education and knowledge-sharing between troops; and (iii) a maximalist policy approach. On the (i) point, founding documents for the multinational operation should be clear and explicit so as to reduce the possibility of any TCC overstepping the boundaries of the mission, and possibly violating IHL. One example of a clear founding document that bolsters legal interoperability is the use of UN Status of Force Agreements (SOFAs). These are documents agreed upon by UN forces and the host state that lay out the responsibilities of the mission. SOFAs are now following the example of the United Nations Assistance Mission in Rwanda, where IHL principles were invoked for the first time in a SOFA. To strengthen the legal foundations of the mission, SOFAs now explicitly invoke IHL principles, often stating that the operations will be conducted in a manner fully consistent with the four Geneva Conventions and the Additional Protocols.12 Because declarations that clarify legal interpretations are likely to be seen as infringements on the sovereignty of TCCs that may preclude them from participating,13 simply clarifying the purpose and scope of the mission in resolutions and mandates may be a more realistic first step towards achieving legal interoperability. On the (ii) point, TCCs must have complete knowledge of not only their own IHL framework, but also those of every other TCC.14 IHL lawyers working for each TCC, national military commanders, and coalition commanders should be aware of the IHL policy and law frameworks of each force, which can be facilitated by knowledge-sharing between national troops. The force can achieve legal interoperability and encourage continual cooperation throughout the operation to resolve legal differences. In the absence of clarifying declarations or knowledge-sharing ef12 Marten Zwanenburg, Accountability of Peace Support Operations, (Boston: Martinus Nijhoff Publishers, 2005), 166. 13 Gary Wilson, “The Legal, Military and Political Consequences of the ‘Coalition of the Willing’ Approach to UN Military Enforcement Action,” Journal of Conflict & Security Law 12, no. 2 (2007): 305. 14 Neil Brown, “Issues Arising from Coalition Operations: An Operational Lawyer’s Perspective,” in International Law and Military Operations, ed. Michael D. Carsten (Newport: Naval War College, 2008), 225; David Graham, “Commentary,” in Legal and Ethical Lessons of NATO’s Kosovo Campaign, ed. Andru E. Wall (Newport: Naval War College, 2002), 380.
The Challenges of Legal Inoperability
forts, a broader (iii) approach means that multinational operations can simply take a minimalist or maximalist policy approach to IHL interoperability. Under the former, a multinational operation sets as a baseline the lowest common denominator legal framework – that of the participant who has the least constricting obligations under IHL.15 While this approach may be preferred by states, it suggests a reluctance to be bound by the principles of IHL and does nothing to overcome legal differences of multinational troops. Therefore, the maximalist approach should be applied instead, wherein the baseline of IHL to be followed mirrors the obligations of the most legally restrained participant. Here, if Additional Protocol I bound other TCCs, the United States would have to abide by the protocol as a matter of policy for the duration of the mission.16 Achieving legal interoperability can ensure that a coherent approach is taken in regards to respecting IHL. The three methods discussed above – clearer mandates, inter-troop knowledge sharing, and a maximalist policy – all help to ensure that participating states are actively working to prevent violations of IHL before and during their mission.
Transparency and Accountability for IHL Unfortunately, these preventative efforts are not always successful, bringing us to our second area of inquiry: accountability for UN, NATO, their respective member states, and PMCs working within multinational operations. While the rules of state responsibility are clearly demarcated in international law and practice, the attribution of responsibility to other bodies remains contentious. In 2011, the International Law Commission adopted draft Articles on Responsibility of International Organizations (ARIO). However, these rules have not yet been codified, so in evaluating the attribution of responsibility to IOs, ARIO principles must be considered in conjunction with customary international law, as well as past judicial rulings.17 The first question to be addressed is the prudence of holding IOs as a whole responsible for IHL violations, rather than holding just the relevant member states accountable. In her analysis of NATO operations, Nachama Rosen finds that holding IOs responsible is beneficial for both the victim of the violation, as well as the perpetrating IO. From the perspective of the IO, evading blame as an entire organization can create a culture of distrust that erodes cooperative efforts, as only select members will be held accountable for violations that could very well have been products of decisions made by consensus.18 For the victim of an IHL violation, it can be challenging to pinpoint which particular state is responsible for the violation. Often, this information is not public15 Zwanenburg, “Interoperability in Multinational Operations,” 702. 16 Ibid., 700. 17 Zwanenburg, Accountability of Peace Support Operations, 69. 18 Rosen, “How are Multinational NATO Operations Responsible?” 168.
Mindful Journal of Ethics 2018–2019
ly available, or is difficult to understand without a comprehensive understanding of the command structures of multinational operations.19 Though there is little case law to rely upon in this area, holding IOs responsible for breaches of IHL can streamline the enforcement process and provide more accessible remedies for victims, while protecting the stability of IOs. There are two elements to consider when attributing responsibility for IHL violations in multinational operations: whether or not the entity has an international legal personality, and the command and control structure of the operation. Only entities with an international legal personality possess rights and obligations under international law.20 The International Court of Justice confirmed the UN’s international legal personality in 1949. The Court held that IOs can be subjects of international law if it is necessary for them to fulfill their mandated functions.21 NATO’s legal personality, however, is not clear, prompting third states involved in NATO missions, such as the former Yugoslavia, to direct legal claims towards NATO member states rather than the IO.22 On the latter question of command and control, the general rule of attribution holds that entities are solely responsible for the actions of their agents or organs,23 but this has been questioned at the ECtHR which instead has substituted a standard of ‘”effective control”.24 In Article 7 of the ARIO, the International Law Commission similarly adopted the ‘effective control’ test, which recognizes that multinational forces authorized by IOs are simultaneously acting on behalf of the IO, as well as on their own national directive.25 Dual attribution for “effective control” is a related concern. It may be common during UN operations: while the UN often holds operational command and control over TCCs, TCCs still retain a portion of authority over their respective national troops.26 Furthermore, states can also voice reservations when volunteering their troops, thereby restricting 19 Rosen, “How are Multinational NATO Operations Responsible?” 168. 20 Jean d’Aspremont, “Abuse of the Legal Personality of International Organizations and the Responsibility of Member States,” International Organizations Law Review 4, no. 1 (2007): 93. 21 Zwanenburg, Accountability of Peace Support Operations, 53. 22 Stein, “Differing Legal Obligations of Coalition Members,” 330. 23 Paolo Palchetti, “The Allocation of Responsibility for Internationally Wrongful Acts Committed in the Course of Multinational Operations,” International Review of the Red Cross 95, no. 891 – 892 (2013): 729. 24 In the case of Stichting Mothers of Srebrenica and Others v. Netherlands, the ECtHR used the ‘ultimate authority and control test’ and found the IO leading the mission to be the only responsible party (Palchetti, “The Allocation of Responsibility,” 724). 25 Murphy and Wills, “United Nations Peacekeeping Operations,” 595. 26 Tristan Ferraro, “The Applicability and Application of International Humanitarian Law to Multinational Forces,” International Review of the Red Cross 95, no. 891 – 892 (2013): 589.
The Challenges of Legal Inoperability
the purview of the UN to hold ultimate authority over these troops.27 Attempts to apply the dual attribution principle to NATO violations of IHL have been less successful, in part because their international legal personality still remains to be recognized. As it stands currently, it is an established rule of law that states can be held responsible for IHL violations committed during multinational operations. As for IOs, there are principles in place that could find them solely or jointly liable, and as these principles develop, the law in this area will become clearer. IOs and their member states are not the only actors participating in multinational operations. TCCS are increasingly relying upon Private military companies (PMCs) for their expertise and support services, raising questions of who is to be held accountable for violations of IHL by PMCs. Again, command and control structures are essential to understanding the distribution of responsibility. If PMCs are acting under direct authority and control of the IO, then dual attribution of responsibility may be applicable to the IO as well as the PMC, or even triple attribution to the IO, the member state contracting the PMC’s services, and the PMC. The degree to which an IO or state has control over the PMC can be expressed in SOFAs or memorandums of understanding that set out the nature of the relationship between PMCs and the contracting state or IO, as well as the PMC’s authority to act independent of IO command.28 States or IOs can also be held accountable for PMC violations under the principle of due diligence. If the state or IO contracts a PMC which is blatantly unqualified to fulfill its mandate, or if the contracting party fails to oversee the actions of the PMC under its command, then the state or IO can be held responsible for any transgressions committed by the PMC.29 Because PMCs are often not directly part of the operational command structure, it is of the utmost importance that contracting states and IOs ensure that these companies are acting in accordance with the IHL standards of the operation. Without a clear understanding of the PMCs legal obligations and possibilities for the attribution of legal responsibility to PMCs, IHL enforcement in multinational operations will become increasingly fraught with inconsisten27 Murphy and Wills, “United Nations Peacekeeping Operations,” 596. For example, the Rapid Reaction Force, composed of French, British, and Dutch soldiers, was deeply integrated within the United Nations Protection Force command structure during the Yugoslav wars, but the individual TCCs could still act on directives issued by their national governments, independent of UN command (Daphna Shraga, “UN Peacekeeping Operations: Applicability of International Humanitarian Law and Responsibility for Operations-Related Damage,” The American Journal of International Law 92, no. 2 (2000): 73). 28 Chia Lenhardt, “Peacekeeping,” in Private Security, Public Order: The Outsourcing of Public Services and its Limits, ed. Simon Chesterman and Angelina Fisher (Oxford: Oxford University Press, 2009), 212. 29 Lenhardt, “Peacekeeping,” 216.
Mindful Journal of Ethics 2018–2019
cies and a lack of clarity. This could lead to states using PMCs to commit actions that would violate IHL, so as to evade any legal accountability for the state for these violations.
Legal remedies after the conflict The most ambitious path to pursue legal remedies post-conflict is to seek justice through national or international tribunals or courts. However, national courts have proven to be generally reluctant to prosecute their own military personnel for their transgressions in multinational operations. Enforcement in courts becomes even more challenging when trying to prosecute IOs. The three main international judicial bodies – the International Court of Justice, the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the International Criminal Court – do not have judicial authority to hear claims against IOs, as their jurisdiction is limited to cases concerning “states” or “individuals.”30 Because of the challenges of seeking legal remedy through national tribunals or courts, victims of IHL violations have often found more success in seeking financial compensation from TCCs. Article 91 of Additional Protocol I holds that parties to a conflict are liable to pay compensation if they violate the Protocol or the Geneva Conventions.31 The UN may set up post-conflict claims commissions to receive, investigate, and ultimately provide compensation to victims. However, claims review boards have been criticized by legal scholar Marten Zwanenburg as biased, as they are staffed entirely by UN personnel, and as such are “acting as their own judge.”32 In a rare successful case, the UN provided lump sum payments to the Belgian, Greek, Italian, Luxembourg, and Swiss governments for damages to person and property during the United Nations Operation in the Congo.33 While the agreement signed between the UN and these countries did not expressly mention IHL, the Secretary General separately reinforced that the decision to provide lumps sum payments was driven by “principles set forth in the international conventions concerning the protection of the life and property of the civilian population during hostilities.”34 Zwanenburg suggests that to make the process of obtaining compensation more regularized, permanent claims commissions under the UN and NATO should be established, rather than setting up new commissions at the end of each multinational operation.35 Moreover, these claims commissions should be given the resources to conduct more expansive investigations. Final30 Rosen, “How are Multinational NATO Operations?” 171. 31 Frits Kalshoven and Liesbeth Zegveld, Constraints on the Waging of War, 4th ed. (New York: Cambridge University Press, 2011), 159. 32 Zwanenburg, Accountability of Peace Support Operations, 283. 33 Ibid., 88. 34 Ibid., 162. 35 Ibid., 288.
The Challenges of Legal Inoperability
ly, they should have jurisdiction over IOs, as well as troop contributing states, to provide victims with a wide range of possibilities to seek redress. Because of the limited remedies available under IHL, many victims of violations of IHL have turned to international human rights enforcement mechanisms to seek legal remedy, as was evidenced in the ECtHR’s hearing of many IHL cases related to multinational operations. Moreover, many national human rights ombudspersons also increasingly deal with IHL violations in their practice, such as the Peruvian and Colombian ombudspersons.36 The use of international human rights machinery for IHL purposes has raised contention, however, as some claim that these bodies lack ratione materiae jurisdiction over IHL violations.37 To remedy this, Zwanenburg suggests establishing a standing international humanitarian ombudsperson to investigate and process accusations against multinational forces for IHL violations.38 An improvement that could be made to all of these remedies – national and international tribunals, claims commissions, and human rights enforcement mechanisms – is their inclusion in agreements and discussion pre-deployment. Resolutions or mandates should include clear regulations that lay out procedures in the case of IHL violations, detailing how international legal responsibility is to be attributed, and what enforcement mechanisms shall be available to the respective victims. Legal interoperability does not cease to be a concern when a multinational operation is convened; rather, it is arguably even more imperative to ensure that legal interoperability is effective post-conflict. Questions of prevention and accountability are indivisible when considering the effective enforcement of IHL, and should be seen to reinforce each other. Moreover, the same political, operational, and legal consequences that necessitate legal interoperability pre-deployment hold true for accountability post-conflict. Multinational operations should be proactive in ensuring that IHL principles are upheld for the entirety of the mission.
Conclusion In conclusion, this paper has argued that IHL enforcement in multinational operations is in need of clarification in pre- and post-conflict scenarios. Disagreements necessarily arise when national legal frameworks of TCCs operate in tandem with one another on the battlefield. To prevent confusion and conflicting interpretations, the application of IHL to the multinational operation should be clarified pre-deployment. Three options were suggested to improve this: including IHL provisions in the mission’s mandate or rules of engagement, promoting knowl36 Zwanenburg, Accountability of Peace Support Operations, 298. 37 Ibid., 284. 38 Ibid., 292.
Mindful Journal of Ethics 2018–2019
edge-sharing amongst troops, and a policy-based maximalist approach that enforces the legal framework of the country most restrained by its obligation under IHL. Post-conflict, the enforcement of IHL requires the attribution of legal responsibility which can be jointly or separately attributed to IOs, TCCs, or in some cases PMCs. However, these rules still require further clarification, as do the legal remedies available to victims of IHL violations – the jurisdiction and obligations of national and international tribunals, claims commissions, and international human rights mechanisms. As states more frequently turn to multinational operations to carry out their military or peace objectives, the framework enforcing IHL requires further study and coordination.
Indefinite Arbitrary Detention Detention Review in Canada BY ALMEERA KHALID While the use of immigrant detention cannot legally be prohibited, international law restricts the use of indefinite detention. Despite advocating for human rights on a global scale, Canada’s immigration detention review system does not align with international standards. Absent a universal legal definition, detention can be understood as “the deprivation of liberty of non-citizens related to their immigration status.”12 There is no formal international convention regulating the practice of detention. However, there are human rights standards declaring a person’s right to liberty.3 This analytic review will elaborate on international human rights pertaining to immigration detention and Canadian laws on immigration detention. I will not address the negative consequences of immigration detention or concerns regarding detention conditions; rather, my primary focus is centered on discrepancies between what Canadian law stipulates versus how it is enacted on the ground. I will conclude with ethical considerations of the failures of immigration detention reviews.4 International legal principles on detention relate to the primacy of liberty and freedom from arbitrary incarceration. According to the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights furthering the American Declaration on the Rights and Duties of Man (American Declaration), one has the right to “liberty and freedom from arbitrary detention.”Accord1 “‘Immigration detention’ is understood as referring to the detention of migrants (in the broadest sense, to include all individuals entering or present in the territory of a state other than their own, be it as refugees, asylum-seekers, stateless persons, irregular migrants, or regular migrants) either upon seeking entry to a territory or pending deportation, removal, or return from a territory.” (Costello, C. (2015), Immigration Detention: The Grounds Beneath our Feet. Current Legal Problems 68(1), 143 – 177). 2 Flynn, Michael J. & Flynn, Matthew B. (Eds.), Challenging Immigration Detention: Academics, Activists, and Policy-makers, (United Kingdom: Edward Elgar Publishing, 2017), 266. 3 See also: International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (ICCPR and ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), the Convention on the Rights of the Child (UNCRC), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW). 4 See Everyday injustices: Barriers to access to justice for immigration detainees in Canada. Refugee Survey Quarterly, 35(1), 109 – 127.
Mindful Journal of Ethics 2018–2019
ingly, international human rights principles on immigration detention lead to a framework that requires that immigration detention be “reasonable, necessary, and proportional” in order to comply with international human rights obligations.56 Gillman (2013: 274 – 279) outlines the framework’s 6 primary features: detainees must be informed of the legal reasons for their detention; deprivation of liberty must be justified; detention is must “meet the goals of the state and be proportionate to those goals”; the government must establish each detention on an “individualized” basis; detention is always undertaken for the shortest reasonable time, and according to a proportionality component; and every detainee must be able to seek review. My primary focus will be on the fifth and sixth requirements as they relate to time, proportionality and the capacity to seek review. In Canada, according to s. 55.1 of the 2001 Immigration Refugee Protection Act (IRPA), immigration officers can arrest a foreign national or permanent resident if they have reasonable grounds to believe that the individual is “inadmissible to Canada, is a danger to the public, or is unlikely to appear for an examination, admissibility hearing, or removal from Canada.”78 The detainee is entitled to a review of their detention by a member of the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) within forty-eight hours. If detention is continued, the detainee has a review within seven days then every thirty days until the case is resolved either through release or deportation.9 Yet, behind this veneer of efficiency, there is a disconnect between what the law stipulates versus how it is enacted on the ground. 5 Gilman, Denise, “Realizing Liberty — The Use of International Human Rights Law to Realign Immigration Detention in the United States.” Fordham International Law Journal, 36, no.2 (2013): 267. 6 The UN working group on Arbitrary Detention and the UN Special Rapporteurship on the Human Rights of Migrants concluded that detention of migrants should be used as a last resort (Gilman 2013, 271). 7 Silverman, Stephanie J., Molnar, Petra, “Everyday injustices: Barriers to access to justice for immigration detainees in Canada”, Refugee Survey Quarterly, 35, no.1 (2016): 115. 8 See also Section 55.2 of IRPA: an officer may also arrest and detain a foreign national (other than a protected person) who the officer has reasonable grounds to believe is inadmissible, a danger to the public, unlikely to appear for examination, and in addition if the officer is not satisfied with the identity of the foreign national in the course of any procedure under the Act. Section 55.3 of IRPA also allows for detention without a warrant upon entry to Canada, if an officer considers it necessary to detain the person for an examination to be completed or has reasonable grounds to suspect that the permanent resident or foreign national is inadmissible on grounds of security for violating human or international rights. Further, inadmissibility (s.33 – 43 of IRPA) can range from participating in war crimes, crimes against humanity, health or financial reasons. 9 Silverman & Molnar, “Everyday Injustices: Barriers to access to justice for immigration detainees in Canada, 116.
Indefinite Arbitrary Detention: Detention Review in Canada
To demonstrate this issue, this article will examine ethical and legal failures in two recent and high-profile detention cases (Ali and Scotland) as well as the 2017 – 2018 External Audit (Detention Review).10 Kashif Mohammed Ali, claimed to be of Ghanaian descent, was found to be inadmissible in Canada on the basis of “serious criminality” due to “petty crimes.” His birthplace could not be confirmed because it was never registered. Immigration authorities attempted to deport Mr. Ali, but, due to his lack of documents (i.e. birth registration), his country of citizenship could not be determined conclusively. Without a country to deport to, and with the Canadian Border Services Agency refusing to release him, Mr. Ali was detained from 2010 – 2017 when his legal counsel successfully lodged a writ for habeas corpus. An instrument of the provincial criminal courts, the habeas corpus writ is a foundational tool for individuals to challenge deprivation of liberty by the state. Mr. Ali’s legal counsel argued that his more than eighty detention reviews were futile and had lost legitimacy as a check on the rightness of his incarceration.11 Upon certifying his habeas corpus writ, Justice Nordheimer found that “detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control.”12 Scotland v. Canada also concerns a habeas corpus writ for a longterm immigration detainee. In certifying Mr. Ricardo Scotland’s writ after 17 months of futile immigration detention in a maximum-security correctional centre, Justice Morgan found no substantive reason to continue to detain Mr. Scotland: “thus, if he is not a danger or a flight risk today, he was not a danger or a flight risk when he was [last] imprisoned.”13 Although the ID pursuant to IRPA reviewed his detention on a monthly basis, Mr. Scotland was trapped in an “endless circuit of mistakes, unproven accusations, and technicalities.”14 Once a decision is reached at the first review, the Canada Border Service Agency has fulfilled its requirements; in spite of subsequent decisions, it becomes harder to overturn the first ruling. Each ID decision is relied on and replicated. Nonetheless, “the detention review process becomes a closed circle of self-referential and circuitous logic from which there is no escape.”15 Contrary to expectations, perhaps, Scotland and Ali are not outliers as confirmed in the September 2017 External Audit of the ID’s recent record of long-term detention. The Audit examined 312 detention review hearings from twenty randomly selected files for eighteen indi10 Ali v. Canada, 2016 and Scotland v. Canada, 2017. 11 At each review, the ID found him to be a “danger to the public and unlikely to appear for removal” — with Mr. Ali being given little time to plead his case (Ali para 15). 12 Ali v. Canada, 2017, para 26. 13 Scotland v. Canada, 2017, para 41. 14 Ibid., para 3. 15 Ibid., para 74.
Mindful Journal of Ethics 2018–2019
viduals to determine whether detention hearings abided by Canada’s standard of fairness.16 The Audit found that the IRB relied heavily on CBSA’s past submissions, including CBSA’s evidential interpretation without “independently assess[ing] credibility to critically examine the factual circumstances.”17 Members of the IRB rotate through a detention file, meaning that every 30 days most likely a different member will chair the hearing review. Although a review occurs in a timely manner, the role of the receiving officer and the deference given to earlier review decisions can lead to ID decisions to be “cumulative, without constituting a fresh review of the legality in detention”.18 The onus of proving grounds for release reverses from the criminal justice context and here rests with the detained person who is “almost always unrepresented and powerless to articulate a fresh argument for release.”19 Detainees face barriers to participating in their hearings. For example, the detainee does not always have the opportunity to hear evidence and depose his or her own witnesses. The detainee also relies on their memory for what was discussed at a previous hearing. This devalues their participation and discourages those unrepresented from further participating in future hearings.20 The audit also emphasized the harms in the use of rigid statutory interpretations — which fails to take into account individual circumstances. If decisions are through a formulaic application, then there is no detailed individual consideration.21 As seen in Scotland, Ali and the audit, “circulatory” logic and deference to the CBSA displays the inefficiency behind detention reviews. Monthly detention reviews in Canada do not meet the international legal standards previously outlined specifically the failure of a proper detention review allows for arbitrary and indefinite detention that is not necessary to the government’s goal. The procedural safeguard is the right to review detention but this falls short in Canada. Through the use of prolonged detention reviews and deference to the CBSA, it is clear that the IRB does not have legitimate and clear objectives for those detained for long periods of time. As seen in Scotland, what was not made clear in the initial review may not be clear in the future. As previously discussed, the more unsuccessful detention reviews a detainee has, the more unlikely it is for them to be released.22 Where 16 The audit included Ebrahim Touré v. Minister of Public Safety; China v. Canada; Ali and Scotland. 17 Immigration and Refugee Board of Canada, 2017. 18 Ibid. 19 Ibid. 20 Ibid. 21 In order to conform to international standards on detention, individual circumstances should be considered. Detention should not be issued for broad interpretations of the law. 22 See Chaudhary v. Canada to the effect that after 18 months of detention,
Indefinite Arbitrary Detention: Detention Review in Canada
there is no reasonable possibility that the detention of immigration-related purposes will be achieved within a reasonable time, continued detention may violate the detainee’s s.7 (life, liberty, and the security of the person) and s.9 (the right not to be arbitrarily detained) Charter rights and will no longer be legitimate.23 Due to the inefficiency of monthly reviews in immigration detention, I hold that there should be legal time limits imposed on the use of immigration detention. There is a need for additional safeguards to ensure that liberty is protected.24 Without any outer-time limits, immigration detention is unjustifiable. In Scotland, Justice Morgan challenged the idea of defining a time limit on detention. Ultimately, putting a “finite number of months or years” is not relevant.25 What is relevant is if there has been a miscarriage of justice. To substantiate his point, he explains that, if a detainee, instead of facing indefinite detention, was facing a maximum of 45 years awaiting removal from Canada — unethical temporal issues still exist. He adds, “if the length of time is sufficiently long to be a miscarriage of justice, then a determinate term is no different than an indeterminate term of detention”.26 I disagree with Justice Morgan because there would be no miscarriage of justice in the first place if detention reviews were properly conducted. Detention reviews are structurally in place to prevent arbitrary, disproportionate, and unreasonable detention. If this procedural safeguard is cannot identify miscarriages of justice, setting a time limit could work as a possible remedy. Just as there is a statute of limitations to ensure fairness and due process in a criminal proceeding, the same principles should be applied to immigration proceedings. It does not make sense to assume more evidence will appear after initial reviews, especially after putting detainees in detention for prolonged periods of time. If there is not enough evidence to justify detention, then members should more robustly consider alternative arrangements, including release. As seen in the audit, many sources of delays are administrative and not the fault of the detainee. By setting a time limit, it will ensure the onus is on the IRB and the CBSA, instead of the detainee, to justify why the detainee should be detained. Interestingly, the audit not only raised issues within the immigration detention reviews, but also gave suggestions on how to make the process fairer for detainees so that their right to liberty is not infringed. To conclude, this paper argued that Canada’s detention review system does not conform with international human rights law. Canada needs to realign its detention practices with international stanrelease seems to become “less likely at each successive review.” 23 Scotland v. Canada, 2017. 24 Costello, Cathryn, “Immigration Detention: The Grounds Beneath our Feet”, Current Legal Problems 68, no.1 (2015). 25 Scotland v. Canada, 2017, para 57. 26 Ibid., para 58.
Mindful Journal of Ethics 2018–2019
dards — liberty and due process need to be protected for all. As seen in the legal record, there are issues in the way detention review is structured. I also argued that the current system can no longer provide agency or procedural safeguards for the detainee. Ali, Scotland, and the audit display how detention is no longer an effective means for the purpose of immigration. Time in detention is not proportional to the “crime” committed — this is a form of state violence. The detention review system exhibits the problems that develop when there is a gap between the letter versus the spirit of the law. Arguably, detention reviews work as a procedural symbol masking indefinite detention. Moving forward, a possible consideration is the universal abolishment of immigration-related detention where states should find alternatives to detention. Ultimately, more research is required on the use and practicality of the recommendations given by the audit. What is clear, however, is that the current detention review model is unjust. Imposing time limits is one way to ensure detention is more reasonable, proportionate, and necessary. Arbitrary detention, as a result of inefficient detention reviews, not only deprives an individual of their liberty, but also raises an ethical concern of state violence against migrant bodies.
Words from the Wise: Alumni Interview with Tarik Bacchus Nicholas Slawnych is a third-year student studying Ethics, Society, and Law, Philosophy, and Russian Language at the University of Toronto. He is especially interested in ethical representation in the literature of Gogol, Dostoevsky, and Melville. Tarik Bacchus graduated from Ethics, Society, and Law and Criminology from the University of Toronto in 2006, and has since worked with various non-profits with foci on poverty, employment, food security, homelessness, and harm reduction. Tarik is currently the Vice-Chair of the Board of the Toronto Hostels Training Centre and the shelter manager at University Settlement’s Out of the Cold emergency shelter in downtown Toronto. In a wide-ranging discussion, Nicholas and Tarik focused on the intersection of ethical theory and practice, the moral reasoning employed in responses to Toronto’s housing needs, and the value of interdisciplinary education. N: How did you discover your current line of work? T: I was raised with some concepts of equity and political consciousness and all that kind of stuff. My father was an immigrant and my mother was born here. Her family lived here for many generations, so seeing that blend gave me a unique perspective. Through U of T and ES&L specifically there were a lot of courses that allowed me to have more of a critical lens on a lot of structures. After I graduated there weren’t a lot of ethicist jobs posted and I needed to earn some money. At that time, the plan was to take a year, earn some money and write the LSATs and you know, do the normal thing. I ended up taking a job at a non-profit working in the employment department, and just through a series of fortunate of steps, absences and gaps and things like that, starting out there from employment services I got into homelessness and hunger. In general, I was thinking of doing probations and parole as one avenue, law as another, but again I was young and idealistic, I was thinking legal aid law, or some sort of advocacy. I worked a lot in poverty but not in homelessness per se, so precarious housing and things like that were up there, but they had never occurred to me as a potential career path. So I spent a couple of nights seeing how things ran there, and I realized that was what I’m supposed to be doing.
N: What does an average day in your line of work look like? T: “Out of the Cold” was a little more wild west. It was a part-time shelter and I was the only full-time staff with a very dedicated team of part-timers who came to staff ships. It was extremely low barrier; many of the individuals who used it were reluctant to access more traditional shelters because of safety concerns, or they weren’t ready to cooperate with case management, or they weren’t ready to work on housing from their perspective, so we were just a comfortable place where people felt safe. Along with that came some behaviours, a fair amount of alcohol use and drug use, and other self-medicating options that people take, but it was a very tight-knit community after all that. All of the residents and the staff felt very strongly about the program and its value. Shelter services are structured because they’re better resourced by the community. In most cases there are people whose job it is to undertake each task, as opposed to “we gotta figure out how to get this done.” The structure is good, but you do sacrifice some seat of the pants capacity building. Again, great dedicated staff, still a good community of clients, although it is different, because in the shelter there is strong case management support and a lot of engagement with that process, but, also, a lot more housing getting done, a lot more people getting into housing. On an average day I’ll review what happened over the past 24 hours, I’ll look at any incident reports, and if there are clients who are on the radar for any particular reasons — either they’re close to housing, or they’re not working on their housing. I’ll look at case notes, follow up with staff on any outstanding issues. There’s a lot of work that isn’t just at the shelter level as well: working on policy development, trying to create better processes for things like staffing and training. Most of the policies that I’d be working on day-to-day would typically be at the level of sites that I supervise, but in some cases, at the divisional level — things that we want to apply across the board. I provide a lot of escalation training for the staff as well. N: What role do you see ethics playing in your current work? T: There’s an antiseptic character to academia in general which you are confronted by when you enter the work environment, although there is ethical content every day in my work. When we transition people into other shelters because they’re not working on case plans and things like that, there are times when we are putting them at greater risk, so we have to balance that with who is going to be benefiting from the spot that is now created in the program, and just in general, ethics is very important in understanding the effect of homelessness in a wealthy country. I think what ethics theory gave me is the ability to take 10 steps back and look at the repetition and recapitulation of inequity throughout society, whether it’s within a corporate structure, within in 19
Words from the Wise: Tarik Bacchus
economics, within housing and homelessness, within racial dynamics ... ethics is there everywhere. There’s an element of trying to make sure that people have access to the program from which they will reap the greatest benefit at any given time. Sometimes a particular program, which may have very similar structure to another program, will be a greater benefit to one person than another, and we respond to that benefit. We start with “nobody sleeps outside,” and then try to accommodate individual needs as best we can after that. N: If there’s one piece of advice that you could give to current ES&L students, what would it be? T: Don’t marry your path too hard. There are a lot of paths, and a lot of them are serendipitous. Small avenues you’ll take, large avenues you’ll take, there is a lot that you can’t predict. Don’t be sad about that.
The Failure of Bill C-14 BY KATHERINE HOFFMAN CO-SUPERVISORS: THOMAS MATHIEN, FRANK WAGNER Within the context of Canadian experience with Medical Assistance in Dying (MAID), considerations of mental illness give rise to many serious ethical dilemmas. However, the complexity of this subject does not excuse Parliament’s failure to provide comprehensive and thoughtful law on MAID. In this paper, I intend to focus on the barriers impeding access to patients who make a request on the sole basis of mental illness. I argue that Bill C-14 has not followed the Supreme Court’s ruling in Carter v. Canada and consequently violates the Canadian Charter of Rights and Freedoms. I recommend Parliament amend Bill C-14 to provide a resolution that is not oppressive and cruel for Canadians who suffer from a mental illness that creates a “grievous and irremediable medical condition.” MAID legislation must not require patients to choose between either a life of suffering or suicide by their own hand but must treat Canadians who possess a “grievous and irremediable medical condition” with dignity in life and in death.
Background As part of the Constitution of Canada, all other laws must conform to and be consistent with the principles set out in the Canadian Charter of Rights and Freedoms. There are important limitations in Section 1: “the rights and freedoms set out in it are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”1 When called upon, the Supreme Court of Canada’s role is to interpret the relevant law and the Charter of Rights and Freedoms. If a law does not conform to the Charter and is not deemed a ‘reasonable limit,’ as outlined in Section 1, the Court expects Parliament to amend the law. In the 2015 Supreme Court case Carter v. Canada, the Court ultimately ruled that without MAID as an option, the “choice is cruel” – leaving patients with little option but to consider suicide by their own hand, which can often be by, “violent or dangerous means” or, in cases of physical illness, be, “condemned to a life of severe and intolerable suffering” until the patient “dies from natural causes.”2 Proceeding this, Bill C-14 was enacted, which legalized MAID in its amendment of Sections 14 and 241, validating the ability to consent to death; however, only in cases deemed appropriate under Bill C-14 wherein a patient is required to meet all its outlined criteria. 1 Charter of Rights and Freedoms, section 1, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 2 2015 SCC 5, para 1.
The Failure of Bill C-14
Analysis I argue Bill C-14 has fundamentally failed to respond to the Supreme Court’s direction. Regardless of the rationale behind criteria in 241.2, it ultimately infringes on the Charter rights of Canadians, specifically those individuals who possess non-terminal illnesses, such as those with mental illnesses. I identify two issues in 241.2 (2). The first is the straightforward, egregious violation of the Supreme Court’s judgment; the part of the definition of “grievous and irremediable medical condition,” found in Section 241.2 (2) (d) that requires a patient’s “natural death” to be “reasonably foreseeable.” The second issue is less straightforward because it relates to the frequent and commonly marketed misunderstanding of mental illnesses as necessarily recoverable. If a universal conception of “recovery” is maintained and patients who request access to MAID solely on the basis of mental illness are denied on this basis, physicians themselves may be understood to violate Charter rights. My third objection to Bill C-14 targets criteria 241.2 (2) (e), which requires patients to provide informed consent to MAID. I argue this criterion fails to adequately reflect the complexity surrounding mentally ill patients’ capacity to consent. As such, it creates a risk of painting all mentally ill patients with the brush of incompetency and can serve to uphold the stereotype that mentally ill patients lack the capacity to consent. Criteria 241.2 (2) (d): Assistance in Death is Prohibited Unless Patients Lay on Their Death Bed In defining a “grievous and irremediable medical condition,” criterion (d) requires a patient’s “natural death” to be reasonably foreseeable. This criterion stands in direct opposition to the direction of the Supreme Court’s ruling. The “Special Joint Committee on Physician-Assisted Dying,” a Committee appointed by the Trudeau government, found the Court ultimately left open the possibility for non-terminally ill patients to access MAID, stating: “the Committee …does not interpret Carter as limiting MAID to terminally ill individuals.”3 Moreover, they concur with the Court that “limiting MAID in this way would result in Canadians with grievous and irremediable conditions faced with enduring and intolerable suffering having to continue suffering against their will.”4 Thus, denying MAID on the basis of terminal illness alone is ethically and legally wrong. Its result is cruel and unnecessary suffering. Patients in this position are condemned either (1) to a life of immense suffering, or (2) forced to commit suicide by their own hand, which can 3 Special Joint Committee on Physician-Assisted Dying. “Medical Assistance in Dying: A Patient-centered Approach.” Report of the Special Joint Committee on Physician-Assisted Dying. 42nd Parliament, 1st Session. Feb, 2016, 11. 4 Ibid., 12.
Mindful Journal of Ethics 2018–2019
often be by “dangerous means,”5 and as the Centre for Suicide Prevention describes, can be “violent and carried out alone.”6 The Court’s ruling makes clear the wholly unethical nature of limiting access to MAID on the basis of requiring a patient to have a terminal prognosis. The Court’s sentiment reflects fundamental principles of justice in health care; mainly, the principles of beneficence and non-maleficence. In requiring patients to meet criterion (d) to be eligible for MAID, Parliament has ignored the Court’s judgement and direction; instead, it has implemented a Bill that violates Charter rights. In condemning patients to choose either option (1) or (2), Bill C-14 violates the same rights Plaintiffs in Carter argued were violated by the original Criminal Code provisions. First, in withholding MAID, Bill C-14 denies patients the right to “life, liberty and security of the person…”7 Further, in disregarding the Court’s judgment and limiting access to MAID on the basis of terminal illness, Bill C-14 violates patients’ rights to be treated “equal before and under the law,” including a right to “equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”8 I suggest that particularly in the context of mental illness, Bill C-14 241.2. (2) (d) may be motivated by the view that a request to end one’s life is invalid. This criterion finds its origins in bias and discrimination against those with mental illness and I suggest this misguided interpretation devalues the suffering of the patient who would request MAID. Thus, Bill C-14 fails to uphold the spirit of the Supreme Court’s ruling in Carter v. Canada by prohibiting MAID from being accessed by Canadians who lack a clearly defined terminal illness. Consequently, it prohibits MAID from being accessed by those who make a request on the sole basis of mental illness. In this way, Bill C-14 discriminates against patients with mental illness and is an unjustifiable infringement of Section 7 and 15 Charter rights. As such, it appears that Parliament has maneuvered an “end run” of the Supreme Court and ultimately has disrespected the system of judicial review, established to protect Canadians’ rights and freedoms. Criteria 241.2 (2), (a) through (c) Without due consideration or evidence, physicians may determine their 5 2015 SCC 5, para 1. 6 Road to Mercy Team, “IF SUICIDE IS LEGAL IN CANADA, WHY DO WE NEED MAID?” September 21, 2016. 7 Charter of Rights and Freedoms, Section 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. 8 Charter of Rights and Freedoms, Section 15, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
The Failure of Bill C-14
patients do not meet criteria (a) through (c) as a result of the view established by this model. This would effectively block eligibility for MAID in all cases where mental illness is the sole reason for request. The American Psychiatric Association (APA) provides a broad understanding of the “recovery model” and defines it as resting on core principles such as, patient responsibility, self-direction, hope and empowerment.9 Further, the Canadian Mental Health Association (CMHA), in their position paper on MAID, state: “As a recovery-oriented organization, CMHA does not believe that mental illnesses are irremediable, though they may be grievous. We recognize that people with mental illnesses can experience unbearable psychological suffering as a result of their illness, but that recovery is possible. The idea that someone with a mental illness could be eligible for MAID is difficult, in part because psychological suffering and a wish to die can be symptoms of a mental illness.”10 Accordingly, the CHMA puts forward the position that a mentally ill person’s request for MAID is considered a symptom of their illness which has yet to be healed. An Examination of Section 241.2 (1) (e) Criterion (e) requires patients to, “give informed consent” to receive MAID, as such, requires a physician to evaluate the capacity for a patient to consent. I argue that criterion 241.2 (2) (d), although clearly discriminatory and against the Court’s judgment, has been used to block the eligibility of patients who make a request on the sole basis on mental illness. In so doing, it also blocks legal challenges to the language of “remediation” and “consent” in order to forgo the complexity surrounding these situations.
Ethical Considerations and The Call on Parliament to Provide a Compassionate Option If patients are deemed incompetent to make treatment decisions, specifically regarding MAID, a host of ethical considerations arise to ensure that these patients not suffer cruelly. I will not attempt to explicate these, leaving these considerations outside the scope of this paper. As the Special Joint Committee on Physician-Assisted Dying finds, eligibility for MAID must be left open to non-terminally ill patients, because 9 American Psychological Association, “Recovery principles,” APA, vol. 43, no. 1 (January 2012): 55. 10 “Canadian Mental Health Association’s Position Paper on Medical Assistance in Dying (MAiD),” Canadian Mental Health Association, September 7, 2017, 1.
Mindful Journal of Ethics 2018–2019
“limiting MAID in this way would result in Canadians with grievous and irremediable conditions faced with enduring and intolerable suffering having to continue suffering against their will”11 or forced to take their life at their own hand. Neither option avoids placing patients in a cruel position. Keeping in mind the Court’s spirit of preventing a cruel outcome for patients and also recognizing the need to protect patients deemed “vulnerable,” I suggest the biggest ethical question is: Is society doing enough to support Canadians with mental illness? A brief review suggests there needs to be more attention given to providing accessible and affordable support for Canadians suffering from mental illness.12 Since government does not fund many mental health supports, such as psychotherapy, patients may not be able to get the treatment they require because they lack appropriate funds. Research that indicates socio-economic status can be tied to rates of mental illness, suicide rates and recovery supports this view.13 For example: specific populations, such as Aboriginal Canadians, have been shown to exhibit an above average population suffering mental illness and suicide rates (Liu, et al., 1), and these Canadians have very limited access to resources which would help them alleviate their suffering. Ultimately, MAID cannot be used as an alternative to caring properly for marginalized individuals suffering from mental illness. Bill C-14 puts patients in an unethical and cruel position where they must choose between a life of anguish or suicide by one’s own hand. Considering mental health supports may not be fixed overnight, Bill C-14 must be reformed to allow patients the possibility of a “good death”. and the means to die with dignity. Jumping in front of a subway train does not fulfill a notion of “dying with dignity.” It is fundamental in that in respecting the right to life we must respect the right to die — to do this we must uphold the right for those to die with dignity. I call on Parliament to investigate how patients can be provided with the means of a “good death” so they may die with dignity.
Bill C-14 Failed Adam Maier-Clayton Ultimately, in deeming all patients who request MAID on the sole basis of mental illness ineligible, Bill C-14 fails to consider the lived reality of mental illness and provide patients living with extreme suffering a compassionate option. A helpful illustration is the illness that Lancet 11 Special Joint Committee on Physician-Assisted Dying, “Medical Assistance in Dying: A Patient-centered Approach,” Report of the Special Joint Committee on Physician-Assisted Dying, 42nd Parliament, 1st Session. Feb, 2016, 2. 12 Anderssen, Erin, “How to fix Canada’s mental health system,” The Globe and Mail. June 1, 2015 (updated June 5, 2017), 2. 13 Lau, E., Hamzah, S., et al, “Suicide and socioeconomic determinants in Canada: beyond morality and philosophy,” Qual Quant, 2017, vol. 51 (1843), 2.
The Failure of Bill C-14
Psychiatry describes as “functional neurological disorder,” also known as “conversion disorder,” as “psychiatry’s blind spot”14 in that it, “remains under-researched, despite being common and highly disabling.”15 As such, the treatments of this condition are largely experimental and may not affect every patient the same, as is the case for many mental illnesses. Although “somatic symptom disorder” is classified as a mental illness, since its origins are determined as psychological, it can cause serious and enduring physical pain.16 27-year-old Adam Maier-Clayton, from Windsor, Ontario, committed suicide late 2017. Adam Maier-Clayton was diagnosed with “conversion disorder” after he began presenting symptoms, which in an interview with CTV NEWS, he likened to being internally “burned with acid.”17 Adam had several diagnoses, including depression and anxiety; however, this disorder presented the most severe effects on Adam’s quality of life. In the same interview he noted his place on over a yearlong waitlist for two Ontario pain clinics. Adam was thoughtfully aware of his illness and, at least from a glance, it seems if his competency to consent was tested, he would have passed. Adam attempted to relieve his pain via numerous medications and extensive therapy. However, his attempts failed to alleviate his suffering to a degree in which he was able to deem his life “worth living.”18 Thus, from Adam’s perspective, he possessed a “grievous and irremediable medical condition,” yet did not meet the criteria to access MAID. In requiring patients meet criterion 241.2 (2) (d), Bill C-14 failed Adam Maier-Clayton, and others like him. Thus, Adam was given the choice between either living out his life in suffering or taking his own life.
Conclusion In the construction of Bill C-14, Parliament used criteria 241.2 (2) (d) to impose limitations on Canadians access to MAID. Criterion (d) limits all non-terminal patients, including all those who request is made on the sole basis of mental illness from accessing MAID. This criterion violates the Supreme Court ruling and, as such, mentally ill patients are discriminated against based on biased assumptions. Moreover, 241.2 (2) on the whole invalidate the suffering of Canadians who have a mental illness. Our societal taboos and prejudices about suicide and mental illness must not get in the way of providing a compassionate option for those living with a “grievous and irremediable medical condition.” This paper 14 Keynejad, R., et al, “Functional Neurological Disorder: Psychiatry’s Blind Spot,” Lancent Psychiatry, vol. 4, no. 3 (2017): 2 15 Ibid., 3. 16 Stone, Jon et al, “Issues for DSM-5: Conversion Disorder.” Psychiatry Online, 2010, 2. 17 Unknown author, “‘No cure’: Young Ont. man wants mental illness included in assisted-dying law,” CTV News. February 23, 2017. 18 Ibid.
Mindful Journal of Ethics 2018–2019
has shown the restrictions outlined in Bill C-14 in criteria 241.2 (2), cannot be categorized as Charter Section 1 “reasonable limitations.” As such, Bill C-14’s infringement on the rights and freedoms of Canadians is not justified.
Health, Access, and Managed Migration Schemes BY YUJING (RAINNY) QU Temporary Foreign Worker Programmes (TFWPs) in Canada showcase circular or cyclical migration schemes in action, allowing potential workers to gain access to employment opportunities in host countries for temporary periods of time before returning to their original countries upon the completion of the work period. This scheme is, in theory, a symbiotic relationship between host countries in need of employees for sectors with low domestic employee supply, and potential migrants and workers in search of employment. However, the imbalanced power dynamics inherent in such programs instead foster an environment in which temporary foreign workers (TFWs) are subject to potential health hazards, leading to detrimental mental and physical health on the part of the workers that TFWPs neglect to adequately address or remedy. TFWPs follow the Canadian conventional thinking to manage immigration based on economic purposes, both in a macro sense of creating international labor markets that theoretically benefit all parties involved, and in a micro sense of individuals theoretically having greater accessibility to potential residence and citizenship through participating in TFWPs.1 This paper will showcase the ways that and extent to which TFWP work environments2 compromise their employees’ physical and mental health. It will analyze how current frameworks to accessing healthcare systems in TFWPs are lacking, with a regional focus on Ontario. It will then conclude with the considerations that these flaws in accessibility contributes to the coercive nature of TFWPs, and so access to healthcare, or lack thereof, in TFWP workplaces is symptomatic of larger inequalities inherent in Canada’s managed migration schemes. Salami and Meharali’s review of research on the health of TFWs in Canada reveals a number of health risks that workers are subject to upon participating in TFWPs. In Preibisch and Otero’s studies on agricultural temporary foreign workers, they point to prevalent health risks that agricultural TFWP environments place on workers, including “exposure to [chemical and climate hazards]; hazards posed by machines, vehicles, and confined spaces; and repetitive and stressful ergonomic positions.”3 These risks both puts workers in danger of immediate phys1 Austina J. Reed, “Canada’s experience with managed migration: the strategic use of temporary foreign worker Programs,” International Journal, 63 no. 2 (2008): 484. 2 Mostly focusing on the Live-in Care program (LCP) and Seasonal Agricultural Worker Program (SAWP). 3 Kerry Preibisch and Gerardo Otero, “Does Citizenship Status Matter in Cana-
Mindful Journal of Ethics 2018–2019
ical harm, as well as increases their risks for long-term disabilities. TFWs are subject to high risks in work environments often because they lack the proper training and education to handle their jobs safely. Workers have claimed that “throughout [their] agricultural career, [they] haven’t received much training from [their] different bosses. In agriculture, you learn from your coworkers and through experience.”4 Furthermore, language barriers place even more strain on foreign workers, making even existing safety training less helpful and making it difficult for TFWs to follow supervisor instructions accurately, leading to more safety risks. Apart from workplace dangers, a lack of adequate sanitation and safe housing place TFWs at risk. Salami and Meharali’s 2015 review reveals poor hygiene and housing conditions to be key contributors to failing health among TFWs in Canada.5 Hennebry’s 2010 article, as well as Carlos and Wilson’s 2018 research, also point out that, beyond physical health, TFWs also face significant mental health risks in their precarious work situations. TFWs are separated from their families and often isolated in their work environments; this leaves them prone to feelings of stress and social exclusion.6 Moreover, workers also suffer under the fear of repatriation and being barred from future employment opportunities. This fear jeopardizes mental health and contributes to a reluctance to seek healthcare through employers. Importantly, these sufferings are co-constitutive:, the stresses of not getting sufficient treatment and fear of repatriation and loss of future employment lead to exacerbated health problems and workers being reluctant to seek even the aid that is available to them;, in turn, their exacerbated and insufficiently treated health issues lead to repatriation and being unable to return to Canada.7 In Ontario, the Ontario Health Insurance Programme (OHIP) grants access to healthcare after workers have worked in their place of employment for a minimum of three months, before which healthcare is at the employer’s discretion.8 This gap between the beginning of a TFW’s employment and their ability to access healthcare renders dian Agriculture? Workplace Health and Safety for Migrant and Immigrant Laborers,” Rural Sociology, 79, no. 2 (2014): 180. 4 Preibisch and Otero, 190. 5 Bukola Salami, Salima Meharali, et al, “The health of temporary foreign workers in Canada: A scoping review,” Canadian Journal of Public Health, 106, no. 8 (2015): 548. 6 J. L Hennebry, “Not Just a Few Bad Apples: Vulnerability, Health and Temporary Migration in Canada,” Canadian Issues/Thèmes canadiens (2010): 74; Jessica Krystle Carlos and Kathi Wilson, “Migration among temporary foreign workers: Examining health and access to health care among filipina live-in caregivers,” Social Science & Medicine, 209 (2018): 121. 7 Salami, Meharali et al, “The health of temporary foreign workers in Canada,” 551; Preibisch and Otero, “Does Citizenship Status Matter in Canadian Agriculture?” 181. 8 Carlos and Wilson, “Migration among temporary foreign workers,” 121.
Health, Access, and Managed Migration Schemes
workers vulnerable to health risks, as well as exacerbates their stress due to a fear of injury while being denied healthcare.9 Programs such as the Live-in Caregivers Program (LCP) places the onus of responsibility onto employers to provide private, third-party healthcare to workers. However, Carlos and Wilson found that 76% of LCP workers did not receive initial health coverage, of whom 75% were not told that they were owed health insurance from their employers.10 Moreover, in a context where 25 seasonal agricultural workers have been sent back to their home countries due to mental illness between 2001 – 2011, a power balance subverts workers’ willingness to confront employers about their lacking services. There are invisible, additional costs of healthcare that mean that workers often must negotiate the necessities and consequences of accessing healthcare rather than using it as needed. Carlos and Wilson reveal that long hours and lack of accessible transport render farmbased TFWs unable to access health resources in a timely manner..11 Likewise, Preibisch and Otero find that access to healthcare is limited due to “employers and supervisors who did not respond immediately or at all to farmworkers’ concerns.”12 The isolated nature of many TFWPs means that workers are increasingly dependent on their employers for access to healthcare.13 Transportation and missing work hours place increasing financial burdens on workers: for example, high public transportation fares, especially for workers in awkwardly located and distant locations, can be prohibitive. If approaching employers for a ride, employers must make time for workers around their personal schedules and availabilities, leading to them frequently failing to address worker’s health concerns within a reasonable time.14 These barriers of access generate “feelings of despair, hopelessness, and having been discriminated against — factors identified by researchers as stressors for higher rates of mental distress and psychiatric difficulties among migrants,” which feeds into mental health issues and exacerbates risks of repatriation, as previously mentioned.15 The issues that arise when considering health and access to health9 Salami, Meharali et al, “The health of temporary foreign workers in Canada,” 549. 10 Carlos and Wilson, “Migration among temporary foreign workers,” 121. 11 Ibid. 12 Preibisch and Otero, “Does Citizenship Status Matter in Canadian Agriculture?” 191. 13 Miya Narushima and Ana Lourdes Sanchez, “Employers’ paradoxical views about temporary foreign migrant workers’ health: a qualitative study in rural farms in Southern Ontario,” Journal for Equity in Health, 13 no. 65 (2014): 3. 14 Preibisch and Otero, “Does Citizenship Status Matter in Canadian Agriculture?” 192; Narushima and Sanchez, “Employers’ paradoxical views about temporary foreign migrant workers’ health,” 3. 15 Preibisch and Otero, 192.
Mindful Journal of Ethics 2018–2019
care in relation to TFWPs illuminate broader inequities in Canada’s foreign worker programs related to sacrifices workers make in order to maintain their visas in Canada. As Ethel Tungohan points out, the TFWP’s structure binds workers to their sponsored employer, denying them the right of mobility in the workforce and therefore the right to leave vulnerable situations when they are at risk.16 Live-in caregivers or seasonal agricultural workers often reside at their worksite and depend on their employers for housing and hygiene.17 Others are coerced into renting apartments owned by their employers.18 Some temporary foreign workers are labouring in order to seek permanent residence through the Provincial Nominee Program (PNP). This pathway is the most popular among those who are employed under the Low-Skill Pilot Program.19 The PNP necessitates an employer’s nomination for permanent residence, which incentivizes workers to endure workplace hazards rather than risk losing their chance at transitioning into permanent residents.20 In other cases, such as the LCP program, workers have the ability to apply for permanent residence after working as a caregiver for two years, a process which nevertheless encourages them to stay in their workplaces regardless of environmental hazards in order to be eligible for permanent residency.21 Even without such incentives and consequences pressuring workers to remain compliant, the socialization process inherent in the TFWP recruitment process also plays a part in TFWs largely being reluctant to seek help despite poor health conditions. Recruiters and presenters frame the worker’s relationship with their employer that workers should be ‘‘grateful” to the Canadian government for giving them “permission to work for these Canadian employers.’’22 These conditions create what Silverman and Hari describe as an environment in which “consent becomes indistinguishable from coercion,” as workers are being both incentivized to accept substandard working conditions in order to get a position, and are made aware that their disobedience 16 Ethel Tungohan, “Temporary foreign workers in Canada: Reconstructing ‘Belonging’ and remaking ‘Citizenship’,” Social & Legal Studies, 27 no. 2 (2018): 238. 17 Stephanie J. Silverman and Amrita Hari, “Troubling the Fields: Choice, Consent, and Coercion of Canada’s Seasonal Agricultural Workers,” Int Migr, 54 (2016): 94. 18 Ethel Tungohan, “Temporary foreign workers in Canada,” 246. 19 Yuqian Lu and Feng Hou, “Transition from Temporary Foreign Workers to Permanent Residents, 1990 to 2014,” Analytical Studies Branch Research Paper Series, 11F0019M no. 389 (2017): 18. 20 Geraldina Polanco, “Consent behind the counter: aspiring citizens and labour control under precarious (im)migration schemes,” Third World Quarterly, 37 no. 8 (2015): 1336. 21 Lu and Hou, “Transition from Temporary Foreign Workers to Permanent Residents,” 17. 22 Polanco, “Consent behind the counter,” 1337.
Health, Access, and Managed Migration Schemes
may jeopardize both their financial and social prospects that are offered to them by the TFWP.23 Lenard and Straehle find in their 2011 article that TFWs are entitled to certain rights but are not allowed other rights, the combination of which often serves to seemingly undermine the purpose of granting workers rights in the first place. For example, they point out that “[TFWs] are entitled to a safe work environment, for example, but are not permitted the right to change employers.”24 The latter barring of rights seems to make granting the former right meaningless, as workers who find themselves in an unsafe work environment are helpless to seek compensation or aid without making themselves vulnerable to deportation. In the context of TFWPs, the worker’s agency is often inescapably intertwined with the inherently coercive nature of the structure of the programs, as “it [would be] misleading to conceive the current preferences of guest-workers as the choice they would make given other options.”25 Silverman and Hari present a similar reading of agency and consent in the context of TFWPs, arguing that certain TFWs in Canada “make choices, but they remain subject to coercive working and living conditions.”26 In the case of TFWPs, a lack of meaningful choices renders the question of consent meaningless. How, then, should the TFWP in Canada be reformed? Building on Joseph H. Carens’s moral argument that migrants can gain access to citizenship based on length of residence, Lenard and Straehle suggest that temporary foreign workers could “accumulate residence” in their host country in order to “earn” permanent residence.27 This idea does not address how to ameliorate the fear of workers that health issues could lead employers to remove them or deny them the right to return for work. In light of this, the paper supports reforms that more directly address the structural issues confronting workers about healthcare and accessibility. Preibisch and Otero suggest in their paper that an example of such a reform would be to offer TFWs “untied, sectoral work permits to enable their mobility within the agricultural labor market,” so that they are better able to access the rights that have been given to them regarding safe employment, without bumping into the issue of mobility.28 Likewise, Silverman and Hari argue for spreading information to workers so that they are better able to self-advocate. To do this, they 23 Silverman and Hari, “Troubling the Fields,” 97. 24 Patti Tamara Lenard and Christine Straehle, “Temporary labour migration, global redistribution, and democratic justice,” Politics, Philosophy & Economics, 11 no. 2 (2012): 213. 25 Lenard and Straehle, 214. 26 Silverman and Hari, “Troubling the Fields,” 97. 27 Lenard and Straehle, “Temporary labour migration, global redistribution, and democratic justice,” 217 – 8. 28 Preibisch and Otero, “Does Citizenship Status Matter in Canadian Agriculture?” 195.
Mindful Journal of Ethics 2018–2019
suggest increased transparency in the recruitment process, as well as translating documents.29 This paper has been utilizing the lens of TFWPs’ negative impacts on workers’ mental and physical health to demonstrate how impeded access to healthcare ties into issues of consent, agency, and migrants’ rights that lie at the heart of TFWPs as a whole. To address these issues, reforms must consider the reasons that workers continue to participate in these programs on a micro level: they must be able to achieve their financial and social goals in an environment where they face minimal risks from participating. By reforming existing processes in the TFWP structure in order to allow workers to better be able to ascertain and stand up for their rights with minimum personal risks, the looming fear of repatriation and denied access to employment may subside enough for TFWs to access healthcare without putting their livelihoods on the line.
29 Silverman and Hari, “Troubling the Fields,” 98.
Mediated-Markets and the Health Impact Fund An Ethical Analysis of Two Solutions to the 10/90 Gap BY OLIVIA SMITH The ‘10/90 gap’ refers to the fact that though ninety per cent of the world’s preventable deaths occur in the developing world, only ten per cent of research and development spending in the health-sector actually targets the needs of developing countries.1 The causes of the gap are co-constitutive and numerous: lack of state capacity to deliver healthcare; poverty, insofar as it makes individuals more likely to fall ill and renders most treatments prohibitively expensive; and a global intellectual property regime, enforced under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which grants pharmaceutical companies twenty-year price-setting monopolies on the treatments they develop.2 The 10/90 gap is profoundly unethical and results in countless annual deaths. It is also indicative of deep, systemic inequities inherent to the present global political and economic system. Its redress is therefore an incredibly pressing issue. In this paper, I discuss two proposed solutions to the 10/90 gap:  a mediated-market approach to intellectual property protections as well as  the proposed Health Impact Fund. I investigate the ethical arguments for and against each proposed solution, concluding that the Health Impact Fund is ethically — and practically — superior to the mediated-market approach. However, I then argue that the Health Impact Fund is flawed insofar as it does not address the fundamental ethical issue underpinning the 10/90 gap: the rendering of the right to life contingent upon the profit motives of pharmaceutical companies. A mediated-market model would allow pharmaceutical companies to achieve profits within a certain range, with excess profits obligating a company to reduce its prices or pay a rebate to the government.3 In addition, governments would retain rights to lower prices in certain ex1 Udo Schuklenk and Anita Kleinsmidt, “North–South Benefit Sharing Arrangements In Bioprospecting And Genetic Research: A Critical Ethical And Legal Analysis,” Developing World Bioethics, 0, no. 0 (2006): 123. 2 Mihail-Valentin Cernea and Radu Uszkai, “The Clash between Global Justice and Pharmaceutical Patents: A Critical Analysis,” Public Reason 4 (2012): 210. 3 Joan Buckley and Seamus O. Tuama, “International Pricing and Distribution of Therapeutic Pharmaceuticals: An Ethical Minefield,” Business Ethics: A European Review 14, no. 2 (2005): 137.
Mindful Journal of Ethics 2018–2019
traneous cases.4 Buckley and Tuama argue for the adoption of such a scheme internationally, with price harmonization across states. They note that the pharmaceutical patent licensing process under a mediated-market model could be oriented towards public good concerns, providing publicly funded financial incentives for companies conducting research of “public concern.” Buckley and Tuama argue that a mediated-market model would reduce the incentive and ability of pharmaceutical companies to egregiously inflate the prices of their drugs, resulting in the production and fair pricing of essential treatments, striking a balance between the public good and corporate interests.5 Generally, the central moral arguments in favour of the mediated-market approach can be classified as either utilitarian or focussed on the right to intellectual property, and will be discussed in that order. In defence of the high-prices they set — an ability possessed in virtue of monopoly granting patents — pharmaceutical companies have argued that they would have no incentive to develop treatments if prices were forced lower or monopolies were not guaranteed.6 This would be a bad outcome; in the absence of radical systemic changes, pharmaceutical companies are vital in ensuring the continued development of treatments for diseases. However, pharmaceutical companies’ profits generally exceed the level necessary to incentivize drug production, and much of their research and development spending is directed towards improving pre-existing drugs, or developing non-essential treatments.7 Thus, the benefits consequent to the mediated-market approach would be two-fold. First, pharmaceutical companies would continue to profit from their developments and retain patent-protections,. This would preserve their incentive to develop treatments, while simultaneously lowering drug prices. Second, due to publicly-funded incentives, pharmaceutical companies would focus more on the development of new, lifesaving treatments. Furthermore, the costs to the pharmaceutical industry would be minimal. Corporations would still be able to reap profits, and participation in the scheme, voluntary or in-voluntary, could stand to improve public perception of the company and the pharmaceutical industry more broadly.8 Thus, on a classical utilitarian cost-benefit analysis — which conceives of actions as right insofar as they produce happiness, or benefit, and wrong insofar as they produce 4 Joan Buckley and Seamus O. Tuama, “International Pricing and Distribution of Therapeutic Pharmaceuticals: An Ethical Minefield,” 137. 5 Ibid, 138. 6 Ross Brennan and Paul Baines, “Is There a Morally Right Price for Anti-retroviral Drugs in the Developing World?” Business Ethics: A European Review 15, no. 1 (2006): 35. 7 Ibid. 8 Joan Buckley and Seamus O. Tuama, “International Pricing and Distribution of Therapeutic Pharmaceuticals: An Ethical Minefield,” Business Ethics: A European Review 14, no. 2 (2005): 138.
Mediated-Markets and the Health Impact Fund
unhappiness, or harm9 — it would be right to implement a mediated-market model. The second line of moral justification for the mediated-market model rests on the importance of preserving property rights, though in recognition of their non-absolute nature and the fact that they often conflict with public good concerns. The right to property is often considered a natural right, and underscores the global intellectual property law regime.10 John Locke held that property arises through the exercise of one’s labour upon the world through an original act of appropriation or creation.11 This right entitles the creators of products the right to control the use of their products, and under what circumstances (e.g., for what price) the rights to them are transferred to others. These principles extend to the realm of intellectual property: creations of the mind. Patent protection is intended as a means to protect the intellectual property rights of creators—in this case, pharmaceutical companies. However, intellectual property law recognizes that property rights are not absolute in the face of public good concerns; this is why pharmaceutical patents lapse after twenty years, enabling the production of lower-cost generics. The mediated-market model thus protects intellectual property rights by maintaining patent-protection, while furthering the precedent of balancing the right to intellectual property with public good concerns. An objection to the mediated-market model employs the same utilitarian reasoning as the first argument in its favour. The mediated-market model would result in more equitable outcomes then the current unregulated price monopoly scheme for drug-pricing. However, several considerations challenge the degree of benefit consequent to the scheme’s adoption, rendering the mediated-market model insufficient to combat the ethical and practical issues underpinning and arising out of the 10/90 gap. First, an element of the model is publicly-funded incentives for research on issues of public concern—i.e., serious diseases for which treatments are not yet available. However, the states which would benefit most from research and development on neglected diseases are precisely those states with the least financial ability to incentivize pharmaceutical companies to conduct that research. Second, many developing countries have very low per capita health budgets, rendering even treatments sold at-cost prohibitively expensive; by allowing pharmaceutical companies to continue to make profits, the mediated-market model excludes the poorest states and individuals from the market. It appears, then, that the mediated-market model would do little to close the 10/90 9 John Stuart Mill, Utilitarianism (Johnathan Bennet, 2017), 5. 10 J. Millum, “Are Pharmaceutical Patents Protected by Human Rights?” Journal of Medical Ethics 34, no. 11 (2008): 1. 11 Ibid., 4.
Mindful Journal of Ethics 2018–2019
gap. Thus, its benefits are minimal. What of the costs? The utilitarian justification for the model focusses on the minimal cost to corporations. However, it ignores the counterfactual costs to the individuals who suffer and die each day due to the 10/90 gap. While the mediated-market model is certainly better than nothing, this is a forlorn avenue of justification. Indeed, there is a certain degree of cost consequent to adopting the mediated-market model instead of a more rigorous scheme that will do more to ensure that all who need treatment receive it. Thus, on a more comprehensive utilitarian analysis, the mediated-market model is ethnically insufficient to combat the 10/90 gap. The Health Impact Fund (HIF), proposed by Thomas Pogge of Yale University, is, potentially one such more rigorous scheme. The HIF is a pay-for-performance mechanism intended to incentivize the development of pharmaceuticals based on their health impact.12 The aim of the Fund, to which all states would contribute based on their GDP, is to provide a financial incentive to develop treatments, sold at-cost, for the ailments that affect the most individuals globally, the majority of whom are poor and cannot access treatment for their illness, either because they cannot afford treatment, or because no treatment has been developed. Patent-holders would register with the Fund, agreeing to distribute their products globally at-cost, thereafter receiving financial rewards proportional to their annual contributions to lowering the global disease burden.13 On the basis of the utilitarian logic employed thus far in this paper, the HIF ought to be adopted, as it has the potential to produce benefits greatly exceeding the mediated-market model. Medicines registered under the Fund would be sold at the lowest possible prices, as lower prices would mean a higher health impact, and so higher rewards.14 In addition, the greatest health impact would lie in treatments for diseases most prevalent amongst people who are poor, thereby incentivizing the development of treatments for the most historically neglected diseases.15 Ultimately, of the two models considered in this paper, the HIF would save the most lives. In addition to its superiority on a utilitarian account, another powerful moral argument supporting the HIF concerns the Fund’s potential to provide a means of historical redress for the systemic injustices suffered by poor countries. This argument rests on two foundational premises: (1) that we ought to do what we can to remedy the harms we commit and (2) the greater our ability to remedy a harm or to help someone, the greater the force of our obligation to do so. The poverty experienced in many developing countries is largely a result of colo12 Mihail-Valentin Cernea and Radu Uszkai, “The Clash between Global Justice and Pharmaceutical Patents: A Critical Analysis,” Public Reason 4 (2012): 212. 13 Ibid. 14 Ibid. 15 Ibid.
Mediated-Markets and the Health Impact Fund
nialism and neo-colonial financial regimes imposed by the world’s most powerful states, reinforced by the political and consumptive choices of citizens. Legacies of colonialism and the continued imposition of powerful interests upon developing states through damaging conditional loans requiring developing countries to impose punishing austerity measures, unfettered capitalism, arms sales, systemic health issues due to intellectual property laws on pharmaceuticals, etc., are responsible in no small part for the poverty experienced in many developing countries. Indeed, the existence of poor nations and people is not a politically neutral fact or an inevitability. Rather, their poverty is the product of the social and economic system in which we live, and of which powerful states play an instrumental role in creating and reinforcing. By having states contribute to the Fund on the basis of their GDP, the most wealthy and powerful would contribute the most to the fund; those with the greatest ability to help would contribute the most. The Fund therefore provides a powerful means of redressing the structural inequalities for which powerful states, and their citizens, are significantly responsible, and therefore should be adopted. The HIF, still but a concept, has been criticized on the basis of doubts regarding its practical ability to be implemented. However, the most sustained moral criticism originates from the libertarian camp of philosophers. Robert Nozick argues that society ought to be organized on the basis of a libertarian political philosophy — which advocates for a ‘minimal state,’ and which conceptualizes the protection of individual rights as the most pressing and fundamental ethical imperative — and that taxation on earnings is tantamount to forced labour; taxing earnings is equivalent to forcing an individual to work however many hours correspond to the taxed amount.16 On this view, it would be wrong to implement the HIF. Presumably, the HIF will be funded at least in part by tax payer dollars. Given that the collection of tax dollars is wrong, the state has no right to possess the means to contribute to the HIF. Furthermore, the HIF will force taxpayers to contribute money towards the needs of others against their will (compounding the wrongness of the original sin: taxation). Presumably some, if not many, individuals would rather their money either was not taken by the state in the first place, or was put to use closer to home, instead of being collected within the HIF. Thus, on a libertarian view, the HIF is morally wrong, and so ought not be implemented. These considerations aside, I am of the conviction that, of the two options considered, the HIF ought to be implemented to address the 10/90 gap. It provides a means of redress for structural inequalities, will save the most lives, and places the interests of the poorest and most marginalized at the centre of the deliberations of pharmaceutical com16 Mihail-Valentin Cernea and Radu Uszkai, “The Clash between Global Justice and Pharmaceutical Patents: A Critical Analysis,” 213.
Mindful Journal of Ethics 2018–2019
panies. And certainly, if we accept foundational tenets of negative responsibility and acknowledge that individuals are, to varying extents, morally responsible for the things that they do not do, then the libertarian objection is seriously wounded. Which harm is worse: paying a small amount of tax, or the sum total of millions of lives worth of preventable death and suffering? These considerations aside, however, much of the Fund’s desirability arises from how it redirects the objectives of pharmaceutical companies. These companies remain motivated by financial incentives, but the Fund’s structure incentivizes them to do something they otherwise would likely not do: work to aid the world’s poorest and most marginalized. Thus, the even Fund does not address the fundamental issue enabling the 10/90 gap: the fact that the realization of the right to life is made contingent upon the financial motives of pharmaceutical companies. Pharmaceutical companies are responsible for the development and production of life saving and life-altering treatments, and the ways in which they price and distribute these treatments determine who can access them, and therefore who lives and who dies when they experience a certain illness. Thus, though the right to life itself is not contingent upon the profit-seeking activities of pharmaceutical companies, the actual realization of the right is largely contingent upon their activities. The following example helps to illustrate the distinction: the right to freedom of speech would not vanish if a state sought to silence a citizen unconstitutionally, but the realization of this right would certainly be impeded. The right to life is not something that should be contingent on market trends or financial incentives. It is not a situation befitting of the seriousness of the individual right to life to have its realization depend on the changeable motives of pharmaceutical companies; under these circumstances, the right to life is not respected as it ought to be, and it is also not sufficiently safe-guarded. Thus, though the HIF is morally preferable to most conceivable solutions to the 10/90 gap, it fails to remedy one of the fundamental moral issues underpinning not only the global sale of pharmaceuticals, but global capitalism itself: the rendering of the realization of the individual right dependent upon one’s place in the economic order, and upon the profit seeking motives of powerful interests. In this paper, I have discussed the moral arguments for and against two proposed solutions to the 10/90 gap: the mediated-market model proposed by Buckley and Tuama, and Thomas Pogge’s Health Impact Fund. Ultimately, I found the Health Impact Fund to be ethically superior to the mediated-market model, as it fares better on a utilitarian analysis and also provides a means to redress historical injustices committed against developing states and their citizens. Though the Health Impact Fund is ethically and pragmatically superior to the mediated-market approach, a serious moral issue remains, concerning its failure to sufficiently respect and protect the individual right to life. 39
Words from the Wise: Alumni Interview with Anthony Morgan Chris Sims is a third-year student in Economics, Philosophy, and Mathematics with a deep interest in ethical issues. Anthony Morgan is a lawyer and the Training & Development Consultant in the City of Toronto’s Confronting Anti-Black Racism Unit. Prior to joining the City, Anthony was an Associate at Falconers LLP, specializing in the areas of civil, constitutional and criminal state accountability litigation. He holds an L.L.B. and B.C.L from McGill University, Faculty of Law. In a wide-ranging discussion, Chris and Anthony focused on what working on an anti-black racism unit looks like, issues surrounding communication and justification, and the importance of writing effectively. C: What does your everyday work life look like? A: My everyday work life consists of either arranging or delivering training and development seminars to City of Toronto workers identify and address anti-black racism in service delivery and colleague interactions. I could be meeting with, say, the head of a Parks and Recreation division to discuss ways to make public spaces more inclusive for black Torontonians or delivering a training session to paramedics, police, or public health workers to discuss ways in which they can be mindful of the needs of black Torontonians while delivering services. C: After your undergrad, you went to law school and then practiced as a lawyer for several years – what kinds of similarities do you see between your current work and your years as a lawyer? A: You have to be an effective communicator in both roles. Even if you’re a solicitor, you have to convey a level of confidence that your client can trust the work you’re doing and that you have the expertise to provide the legal services they need. Here at the City, we’re often engaging in very challenging conversations and people need to know that I’m not there to berate them – I’m there to help them recognize and respond positively to instances of racism. Of course, in law you’re working in adversarial situations whereas now I find myself in more of an exchange with others and a teaching role. C: What role do you see ethics, broadly considered, playing in your current work? A: It shapes everything you do in the sense that you have to have a frame40
Mindful Journal of Ethics 2018–2019
work for engaging with questions about what is right or wrong. We always have to think about what kinds of benefits we want: do the ends justify the means, or should we think in more Kantian terms? There are also notions like Rawls’ overlapping consensus – when you have tensions and questions surrounding the fact that we have disparate outcomes for one community compared to more privileged communities, it’s important to think of how we can create a frame policies to address that disparity in way that’s persuasive and appeals to specific ethical norms. So many questions about intervention in various ways are ethical in nature. For instance, when we think about homelessness and how the City should respond, we need to recognize that resources are finite and that some people are going to have to lose a bit to help others gain a bit more. You need some kind of ethical framework to both shape your point of entry and be persuasive when trying to change and shift policy. C: Do you find there are often issues with justifications when you’re discussing with others? A: One of the challenges is having a targeted focus on black communities. While people are generally supportive, there are sometimes questions about why we can’t work towards equity and inclusivity more generally. And while we support those sorts of initiatives, they still don’t get you there. There’s a history of marginalization and exclusion that’s the result of conscious and unconscious decisions to harm this particular community, and it’s difficult to get to those discussions from more general notions of equity. Somewhat separately, I also hear people ask me about why we focus on anti-black racism when so many other groups still face discrimination — a sort of “All Lives Matter” approach. Of course that’s true, but often the most ready solution people suggest, colour-blindness, doesn’t fix the underlying problems even though it may be a good thing to do from a personal perspective. C: How does Toronto fare in comparison to other cities when it comes to addressing anti-black racism? A: I think I can comfortably say that the City of Toronto is more advanced than the vast majority of municipalities across the Western world, with the caveat that the bar is quite low. We have the advantage of being a very diverse city which allows for a richness of ideas to be exchanged even if it doesn’t directly translate to policy. Still, the City of Toronto is the only municipality I know of that has a permanent office addressing anti-black racism, even if that is more a recognition that there’s still so much further to go than anything else. C: If there is one piece of advice that you could give to current ES&L students, what would it be? A: Don’t underestimate how important your ability to communicate 41
Words from the Wise: Anthony Morgan
your thoughts in writing is. Throughout undergrad, law school, and my professional life I’ve known many people who are brilliant thinkers but can’t write very clearly, so their brilliance just doesn’t translate across the written page. I’ve joked with John Duncan before that I don’t think I would have gotten into the program today if I had applied given how much the calibre of the ES&L cohort has increased. With social media, the engagement with different people and ideas is far and beyond what was possible when I was going through. Nevertheless, when I talk with university educators a lot of them discuss how the level of writing is often weaker than the level of intelligence of their students. Even though our society is in many ways a very visual one, the most important and long-lasting ideas tend to be the ones that are written down.
Overlooking the Imperative William Godwin's "Of Justice" and the Importance of Gratitude BY BRADEN ZUFELT William Godwin, an eighteenth-century English philosopher, defends a strictly utilitarian conception of morality. Assessing his view not only provides insight on the fundamental principles of utilitarianism, but also highlights the bonds necessary for ensuring the coherence of society and enabling its stable continuity. In Godwin’s perspective, moral actions directly or indirectly result in the enhanced welfare of society.1 As a result, Godwin proposes that a hierarchy exists which differentiates persons into categories of greater and lesser moral worth. He posits two criteria under which an individual can be considered of greater value; the second of which requires that the individual’s well-being is more conducive to the good of the whole.2 In establishing this view, Godwin states that the tendency of people to confer greater value on an individual for reasons other than his benefit to greater society is due to gratitude – a sentiment Godwin believes to have no bearing on morality.3 From a utilitarian perspective, Godwin is entirely correct in suggesting that the moral worth of some people is greater than that of others. He is, however, mistaken in his view that decisions based on gratitude are immoral. As I argue in this paper, gratitude, as Godwin defines the term, is necessary for society to exist; disregarding its importance strays from the strict utilitarian principles which govern Godwin’s thinking. In demonstrating this claim, I begin by defining Godwin’s conceptions of morality and gratitude, following this with an explanation of his hierarchy of moral worth and argument for the immorality of gratitude. I then demonstrate that, given Godwin’s definitions of both gratitude and morality, to dismiss gratitude is to overlook a crucial part of society’s foundation. It undermines the utilitarian perspective on which Godwin bases his claims. Early in his account, Godwin establishes that all moral duties, which he refers to as “justice,”4 are rules of conduct that originate in the connection between two percipient beings.5 The role of this justice, once it has been established, is to contribute everything possible to the 1 William Godwin, “Of Justice,” in An Enquiry Concerning Political Justice, vol. 1 (London: G.G. J. and J. Robinson, 1793), 50. http://oll.libertyfund.org/ titles/godwin-an-enquiry-concerning-political-justice-vol-i. 2 Ibid., 51. 3 Ibid., 52. 4 Ibid., 50. 5 Ibid.
Overlooking the Imperative
benefit of the whole of society – an inherently utilitarian notion.6 Given this meaning, Godwin believes that a hierarchy of moral worth exists between persons. In his opinion, an individual is of greater worth if he either 1) “is capable of a more refined and genuine happiness,”7 or 2) has a well-being “more conducive to the general good.”8 The first criterion is based largely on a conception of a civilizational hierarchy: a human possesses greater cognitive faculties than an animal, so is capable of more refined and genuine happiness.9 A human is thereby of greater moral worth. To Godwin, this equates to an individual in a position like that of the Archbishop of Cambray enjoying greater worth than a chambermaid, as the former is further removed from an animalistic state than the latter.10 If a situation arose in which the lives of both the Archbishop and chambermaid were in danger, and a third party had the option of saving only one of them, the third party would, therefore, be morally obliged to save the Archbishop.11 In Godwin’s second criterion, one enjoys greater moral worth if one’s well-being is of more substantial benefit to the whole of society.12 Although Godwin, as previously described, believes that justice is formed in the relationship between two percipient beings, he acknowledges that our relationships surpass this initial stage; they extend into societies and nations, contributing to what he calls the entire “family of mankind.”13 As a result, moral obligations are and ought to be to the greater welfare of this family.14 Again using the personalities of the Archbishop and chambermaid, Godwin establishes that the Archbishop is of greater moral worth than the chambermaid due to the greater overall welfare he brings, or has the potential to bring, to the whole.15 In the event that a third party is compelled to choose between saving the life of the Archbishop and saving the life of the chambermaid, Godwin argues that the third party is morally obliged to save the Archbishop, even if the chambermaid happens to be the mother of the third party.16 The intuitive drive responsible for one’s tendency to choose personal relations over those of greater benefit to society is, Godwin concludes, a result of gratitude – a concept he defines as “a sentiment, which would lead me to prefer one man to another, [from some] other consideration than that of his superior usefulness or worth: [that is], which would 6 William Godwin, “Of Justice,” 50. 7 Ibid. 8 Ibid., 51. 9 Ibid. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid. 16 Ibid.
Mindful Journal of Ethics 2018–2019
make something true to me, which cannot be true to another man, and is not true in itself.”17 Godwin, therefore, is using the word “gratitude” in reference to anything conventionally considered to influence decision-making other than strict utilitarian principles, including cultural or familial ties. In his view of gratitude, Godwin is quite clear: it plays no role in justice.18 It is in this view of gratitude that Godwin is mistaken. In dismissing it, he digresses from his utilitarian foundation, threatening the fabric of the society he seeks to improve. As Godwin believes that justice originates in the relationships between persons, and this justice aims at bettering the whole, then it must be the case that if these relationships were weakened, there could be no justice nor society to be enhanced. At the very least, the society would be more fragmented than it ought to be under utilitarian ideals. In other words, if these relationships were weakened or otherwise nullified, the utilitarian basis on which Godwin bases his claims would be entirely undermined. Gratitude, in Godwin’s definition, is necessary for the strength and stability of these relationships. The blind preference given by some people to others for reasons unrelated to the good of the whole, like that of love, is what makes their relationships so strong. This inevitable tendency to favour some over others, like those of one’s own kin, is shown by Godwin when he poses the possibility of the chambermaid’s maternal status in relation to the third party. These preferences may not always conform to the commonly considered definition of gratitude (that of gratefulness), but they do adhere to Godwin’s loose definition of the term. The mere fact that one would sacrifice the good of the whole, or perhaps simply neglect to consider it, specifically due to the love of an individual is a testament to the strength of this relationship. Suggesting that one morally ought to disregard these features compromises the intimacy and stability of relationships – a factor which hinders the establishment of justice as Godwin sees it and threatens the integrity of the whole. While it may not always be immediately utility-maximizing to act according to gratitude, this gratitude enhances utility in the long-term due to maintaining the whole. Gratitude, therefore, is central to justice and Godwin’s notion of utilitarianism. In response to this observation, two objections can be made. The first is rather fantastical, but given Godwin’s dismissal of the tendency of individuals to give preference to some people due to a better acquaintance with their moral actions as a mere imperfection of human nature,19 it is worth considering. Godwin’s characterization of human nature as imperfect can be extended to argue that any society based on relationships forged through gratitude is imperfect, rendering grat17 William Godwin, “Of Justice,” 52. 18 Ibid. 19 Ibid.
Overlooking the Imperative
itude negligible in a hypothetically superior society more conducive to utilitarianism. Godwin’s conception of justice, however, is that one should pursue the benefit of the whole – the whole as it is, not as it could be. This is shown with Godwin’s statement that just actions are those which are advantageous “to the mass of individuals… because individuals are parts of the whole.”20 As individuals are inherent to the whole as Godwin has described it, recreating society on hypothetical foundations in which gratitude is unnecessary does not do what is best for society. To do so would again digress from the utilitarian principles which form the basis of Godwin’s theory. Despite any theoretical forms a society may take, gratitude remains a crucial part of the societal structure and its subsequent welfare as it has been established both by Godwin and the evolutionary process. The second potential objection is that it may be possible for the necessity of gratitude in forging relationships to become extinguished once justice and society are firmly established. This objection concerns Godwin’s conception of the creation of justice through relationships, and permits utilitarianism to both be maintained and its demands to evolve with the progression of time. Godwin’s criteria for one possessing greater moral worth would thereby only take affect once the broader society concretely materialises, allowing for his definitions and theorization to remain true. This is a realistic possibility due to the inevitable continuation of society’s evolution, and with it, the evolution of factors which contribute to society’s overall welfare. This being said, it is important to note that as society changes, the progression of time results in population changes due to nativity and mortality – arguably the fundamental reasons for shifts in what contributes to overall welfare. Relationships strengthened by gratitude would thereby continue to play a crucial role in maintaining the integrity of this society. To better understand this point, it is useful to imagine this metaphorical depiction: society is a single wheel rolling over a wooden bridge symbolic of the progression of time. The planks in this bridge are the relationships which permit society to remain upright and in motion. As the wheel rolls over the bridge, passing through time, more planks must be fashioned and placed before the wheel. If they are not, the wheel will fall and crash into ruin. As gratitude, in Godwin’s definition of the term, refers to any sentiment causing one to make decisions for reasons other than superior worth,21 and these reasons are essential for formulating strong relationships, Godwin’s notion of gratitude is required to ensure that planks are continuously fashioned – enabling society to continue existing with some degree of strength. To ignore the importance of gratitude even once society has been established, therefore, still digresses from the principles of utilitarianism. 20 William Godwin, “Of Justice,” 50. 21 Ibid., 52.
Mindful Journal of Ethics 2018–2019
I have not objected to Godwin’s two criteria concerning the hierarchy of moral worth as they generally adhere to utilitarian principles. This being said, Godwin’s account of the second criterion pertaining to one being more favourable to the general good is problematic in its exclusion of gratitude. Gratitude, according to Godwin’s own views on justice and the creation of society, is central to the welfare of the whole. To dismiss it as irrelevant to justice compromises the strength of the relationships integral to society both as it is and as it will come to be. A proper utilitarian perspective, therefore, requires an endorsement of gratitude; its centrality to forming relationships is the factor which facilitates the importance of other factors in benefiting the whole. To accurately reflect the structure of society (both moral and otherwise), Godwin’s criteria must be revised. Although it is not necessarily the case that a third criterion allowing for gratitude must be added, the existing second criterion must allow for more liberality in interpretation. This will ensure that Godwin’s hierarchy of moral worth accurately supports utilitarianism as the basis of moral law.
On the “Strange Power of Speech” Or, Outlining an Ecological Ethics of Reading in Henry Vaughan’s “The Book” and Rilke’s “Archaic Torso of Apollo” BY MARAL ATTARZADEH In “The Origin of the Work of Art,” Martin Heidegger describes a Greek temple, which he considers to be an example of a great artwork: “Standing there, the temple work opens up a world while, at the same time, setting this world back onto the earth.”1 Heidegger’s categories of “world” and “earth” roughly correspond to the more common binary of “culture” and “nature”: the world consists of all that is conceptually accessible to and classifiable for human beings, while earth is made up of what remains outside of the mind’s appropriating and instrumentalizing grasp. Heidegger’s formulation of the work of art and its mediating role between world and earth is helpful in discussions about the ethics of representing nature in literary works, and about nature poetry in particular. The distinction between world and earth, however, is subject to many of the same questions raised by the categories of “natural” and “cultural”: about the arbitrariness of these categories, about the place or existence of borders between them, and about the ethics of reading and representing the nonhuman environment in an artistic or literary work firmly rooted in its allegiances to “culture” and to cultural modes of being and knowing. This essay locates an ecological ethics of reading in two poems that engage cultural objects while reflecting on their “thingliness”2 and belonging to the natural world: “The Book” by Henry Vaughan, and “Archaic Torso of Apollo” by Rainer Maria Rilke. Employing Don McKay’s definitions of “wilderness” and “poetic attention” as well as Gary Snyder’s concept of “Natural Language” as theoretical frameworks, its aim is to underscore each poet’s use of “wild” poetic language and his focus on materiality of his subject and its place in nature. It suggests that this practice of ecological reading allows for an ecological ethics of encounter – one that calls on the subject to take inspiration from the poetics of the natural in order to gesture, “with an extended palm,” outside itself and towards the radical wildness of the other.3 1 Martin Heidegger, “The Origin of the Work of Art,” In Off the Beaten Track, trans. Julian Young & Kenneth Haynes (Cambridge University Press, 2002), 21. 2 Ibid., 13. 3 Don Mckay, “Baler Twine,” In Vis a Vis: Field Notes on Poetry & Wilderness (Gaspereau Press, 2001), 23.
Mindful Journal of Ethics 2018–2019
Wilderness, Poetic Attention, and Natural Language In “Baler Twine,” his essay on the ethics of representing the natural, the Canadian poet Don McKay offers a new definition of “wilderness” that echoes many of Heidegger’s concerns about the self’s instrumentalization of its environment and of the other. “By ‘wilderness,’” writes McKay, “I want to mean not just a set of endangered spaces, but the capacity of all things to elude the mind’s appropriations... the sudden angle of perception, the phenomenal surprise which constitutes the sharpened moments of haiku and imagism.”4 McKay defines wilderness as the aspects of every object that exist outside of the reach of cultural categories, earth that resists becoming world. He identifies art, and particularly poetry, as media that have the unique ability to gesture towards this wilderness because of their rearrangement, defamiliarization, and strange-making of the world and of language, allowing for “the momentary circumvention of the mind’s categories to glimpse some thing’s autonomy.”5 It is “poetic attention,” McKay claims, that makes this glimpse of the other possible – “a sort of readiness, a species of longing which is without the desire to possess.”6 This readiness for open and creative reception in poetry presents itself as an alternative to the primordial grasp, and McKay explores its capabilities and limits in his discussion of “anthropomorphic play.”7 While language cannot help but to grasp at the world, it can do so with the “extended palm” of poetic creativity. The “slight deformation” of cultural categories of which poetic language is capable gestures outwards from these categories, allowing the self to approach the autonomous other with attentive language, as if “with a gift from home.”8 In his essay “Language goes Two Ways,” Gary Snyder, an American poet, essayist, and environmental activist, offers another view of the possibilities of wild representation through his discussion of what he defines as Natural Language. Much like the poets whom I will be discussing later in this essay, Snyder attends to the position of his subject “in nature,” exploring the embeddedness of language in larger systems and processes outside of human control and cultural organization, and identifying it as part of the “natural world.”9 “Patterns and syntaxes” of language, Snyder writes, “were not invented or created by anyone”; they are “organically evolved wild systems whose complexity eludes the descriptive attempts of the rational mind.”10 In this assertion, the Heideggerian distinction between world and earth has already start4 Don Mckay, “Baler Twine,” 21. 5 Ibid., 21. 6 Ibid., 26. 7 Ibid., 31. 8 Ibid., 31. 9 Gary Snyder, “Language Goes Two Ways.” In Laurence Coupe, ed.. The Green studies Reader: From Romanticism to Ecocriticism (Routledge, 2002), 127. 10 Ibid., 127.
On "The Strange Power of Speech"
ed to blur – language, that primary tool of categorization, instrumentalization, and of the primordial grasp of world-making begins to emerge as wild, to gesture toward a possible allegiance with the ungraspable earth. Like McKay, Snyder advocates for a playful, creative, and open use of language which makes room for “overlooked connections, tensions, resonances, shadows, reversals, retellings” “brought forth from deeps of language.”11 Together with McKay’s formulations of wilderness and poetic attention, Snyder’s Natural Language emerges as a helpful theoretical category as we attempt to understand Vaughan and Rilke’s use of language in their nature poems about cultural objects.
“Our treasures in earthen vessels”: Henry Vaughan’s ‘The Book’ Published in 1655 as part of the second, extended volume of his collection Silex Scintillans, Henry Vaughan’s poem “The Book” is a meditation on the material origins of its subject. That the book in the poem has been interpreted to be both the Bible and the volume in which the poem itself appears attests to the close affinity between Vaughan’s attempt to recuperate the natural history of a cultural object and his explorations of different modes of knowing God in the poem. The manner in which he blends the two subject matters is innovative in itself – as Alan Rudrum points out, “To see the world of nature as a book was a Medieval and Renaissance commonplace, Vaughan’s originality is to see the world of nature in a book.”12 Vaughan continues this creative “reading” of his book in the first three stanzas of the poem, where his use of Natural Language – – pun, repetition, patterning, and double meaning – – reflects his descriptions of the natural origins of the book as both are processed, recycled, and transformed: the grass is first “dressed” and, “when made linen,” “worn;”13 the “lives,” “thoughts,” and “deeds” of the people who wore the linen are like “good corn or fruitless weeds;”14 the tree, “covered” by a green shade is “since a cover made;”15 the animal skin on the cover of the book “clothed” the “harmless beast when he/Did live.”16 There is also a dialogue between the “green shade” covering the tree, and the “harmless beast” feeding “On each green thing”: when it was alive, the tree “flourished, grew, and spread,” and the skin of the dead animal “now lies spread / A covering o’er this aged book.”17 These puns and double meanings work to bind, again and again, the material parts of 11 Gary Snyder, “Language Goes Two Ways,” 128. 12 Alan Rudrum, Henry Vaughan (University of Wales Press, 1981), 641. 13 Henry Vaughan, “The Book,” In John P. Rumrich & Gregory Chaplin, eds., Seventeenth-Century British Poetry 1603 – 1660 (W.W. Norton & Company, 2006), 612, l. 7 – 8. 14 Ibid., l. 9 – 10. 15 Ibid., l. 11 – 12. 16 Ibid., l. 18; 15. 17 Ibid., l. 11; 17; 13; 17 – 18.
Mindful Journal of Ethics 2018–2019
the book to their living, natural origins, highlighting not just the “natural past” of the book but the “vegetable origins of metaphors inscribed on textual materials,” the natural and material origins of language.18 In these lines, Vaughan’s use of Natural Language in his description of the book allows for an outward gesture toward the “resistant, inarticulable materiality” of the book and a backward gesture in time toward the similarly ungraspable past inhabited by the plants and animals which now make it up, and of the people who produced or used its materials.19 In the final lines of the third stanza, however, another doubling of language allows for a striking gesture inward, and for the first appearance of the first person in the poem: ...this skin, which now lies spread A covering o’er this aged book; Which makes me wisely weep and look On my own dust; mere dust it is, But not so dry and clean as this. Thou knew’st and saw’st them all and though Now scattered thus, dost know them so.20 Contemplating the natural origin of the book’s cover and creating (or recognizing, as Gary Snyder might argue) the doubling between the animal’s skin and his own, Vaughan’s narrator reflects on the materiality of his own body. He frames himself as “not so dry and clean” as the book in relation to God, whom he recognizes as the perfect reader of the “scattered dust” of the world. This, then, is the key outward gesture of the poem – toward God, whose Otherness seems to level the differences between animal and human, between nature and the book, and between the book and Vaughan’s narrator himself. This levelling of the human, natural, and representational, however, is not an act of effacement – to the contrary, together with the linked double descriptions of the earlier stanzas, this moment makes possible the radical restoration Vaughan describes in the final stanza of the poem, where “trees” and “beasts” are restored along with “men.”21 In Vaughan’s centering of their materiality, of their past and present embeddedness in their environment, the trees and beasts that make up the book are recuperated and restored in his imagined future. This reading of the poem poses a challenge to interpretations that assume and enforce a strict divide between nature and culture, between material and meaning in the poem. William West, for example, argues 18 Joshua Calhoun, “The Word Made Flax: Cheap Bibles, Textual Corruption, and the Poetics of Paper,” PMLA (vol. 126 no. 2, 2011), 340. 19 William N. West, “Less Well-Wrought Urns: Henry Vaughan and the Decay of the Poetic Monument,” ELH (vol. 75 no. 1, 2008), 207. 20 Vaughan, l. 18 – 24. 21 Ibid., l. 26.
On "The Strange Power of Speech"
that Vaughan’s centering of materiality in the poem is an attempt to find the “lowest kind” of commonality and community for the religiously isolated Vaughan; that in the absence of a religious community, he retreats “below and before” language and, focusing on the “material fact” of the representational object, attempts to delineate a common place in which a conversation and a community might be ultimately possible.22 Making a very different claim through a similar framework as West, Joshua Calhoun argues that Vaughan’s “itemization of the ecological composition of the Bible draws a reader’s attention beyond – – and at times away from – – transcendent religious ideas and toward its mundane matter.”23 Both readings rely on a strict separation between “material fact” and language, between “mundane matter” and “transcendent religious ideas.” They ignore the connection that I have aimed to underscore between the Natural Language of the poem, the natural origins of the book, and the radically and ecologically democratic vision of restoration that Vaughan presents in the poem. This connection, I would suggest, blurs the distinctions between representations of “low” materiality and “high” religious transcendence, and demonstrates the ability of wild language to gesture out toward the nonhuman world while resisting the urge to categorize it as squarely natural or cultural. The poetics of the material and the natural help us with this reaching out, and, as Vaughan himself is aware, “We that are yet in the body, and carry our treasures in earthen vessels, have need of these helps.”24
The Wild Gaze of Rilke’s “Archaic Torso” Rainer Maria Rilke’s “Archaic Torso of Apollo,” written in 1918, advocates for the ecological ethics of reading that we have traced in “The Book” in striking terms, and records the failure of the primordial grasp in the face of the wild autonomy of the nonhuman world. It describes, from the second-person point of view, the experience of encountering a cultural object which is wild, dynamic, and profoundly powerful precisely because it is illegible and alienated from the “world” and its categories of meaning, because of its decayed and fragmented materiality. Through creative distortions of the language of nature poetry, the poem presents the possibility of a transformative experience of encounter that can occur when we are confronted with the nonhuman world outside of the bounds of cultural and artistic legibility. The poem opens with an assertion of the literal and fundamental unrecognizability of its subject: “We will not know his fantastic head/ Where his apple-eyes ripened.”25 The statue is faceless, and, without 22 West, 211 – 212. 23 Calhoun, 338. 24 Henry Vaughan, “To the Reader,” in Mount of Olives, or Solitary Devotions (William Leake, 1652). 25 Rainer Maria Rilke, “Archaischer Torso Apollos,” Accessed at http://rain-
Mindful Journal of Ethics 2018–2019
eyes, it evades the spectator’s direct gaze.26 The rest of the poem responds to this initial illegibility of the torso by narrating the strikingly powerful effect of the statue on the spectator despite (or in light of) its effacement. Its wild and sublime quality begins to emerge already from this opening line of the poem, where Rilke employs the neologism “Augenäpfel” (“apple-eyes”) to describe the statue’s “ripening eyes” in its “fantastic head.”27 Rilke continues his description of the torso, centering its arresting materiality. In the absence of his “apple-eyes,” the gaze of the statue still remains, “only pulled back now,” in his torso, which Rilke sets up as an analogue of the face – the “bow” of the breast recalls a forehead, while a “smile” runs “through the soft twist of the loins.”28 The statue remains ungraspable even in this metaphor, however, as Rilke keeps the analogy of the torso as a face open and unfulfilled. The torso’s “smile” runs “into that low centre which/Once bore fertility” – we see that the statue is sexless as well as headless.29 An effaced and impotent object in anthropocentric terms, the statue still “glows like a candle-tree” and “dazzles” the viewer; in its castration, the sensuality of its form is not destroyed but transformed into something less familiar, and the language of the poem seems to insist on the power and allure of this otherness.30 The next section of the poem is another assertion that the statue, though headless, still has a “gaze”: “Else this stone would stand, a disfigured stub/Under the shoulders’ translucent drop/And would not gleam and glisten like a wild beast’s fur.”31 The torso is an incomplete, fragmented, and damaged representation of the human body, but it is not disfigured. With its legibility as a human figure withered away, the spectator encounters the torso as a wild, alive, “glistening” thing, the allusion to “a wild beast’s fur” evoking a sense of the Sublime, characteristic of descriptions of wilderness in romantic nature poetry.32 Rilke places this mention of animal skin (“felle” can also be translated as “skin,” “pelt,” or “hide”) in the poem’s penultimate sentence, which unfolds and intensifies over two stanzas before the arrival of the poem at its striking final command: Else this stone would stand, a disfigured stub er-maria-rilke.de/090001archaischertorso.html, l. 1 – 2. (Translation mine). 26 The facelessness of the statue could be said to already undermine, in a sense, the spectator’s attempts at the primordial grasp, since Levinas’ theorization of the primordial grasp is rooted in his formulation of the primary “face-to-face” encounter. 27 Ibid., l. 2. 28 Ibid., l. 2; 4; 5; 7. 29 Ibid., l. 6. 30 Ibid., l. 3; 6. 31 Ibid., l. 10 – 12. 32 Ibid., l. 12.
On "The Strange Power of Speech"
Under the shoulders’ translucent drop And would not gleam and glisten like a wild beast’s fur And would not burst from its every border Like a star: for there is not a spot here That does not see you. You must change your life.33 Placed at a moment of rhetorical intensification and assisting the shift of the poem’s narrative from an outwards gesture towards a nonhuman object to a striking self-reflexive turn, this mention of animal skin in “Archaic Torso of Apollo” echoes the mention of animal skin in “The Book” – both poems seem to register the simultaneously wild, other, and familiar quality of animal skin, and to employ it similarly as they reflect on the consequences of encountering the nonhuman world for the Self. In Rilke’s poem, the comparison of the torso with a wild animal also works to assert that the statue’s decay, a result of its embeddedness in its physical and temporal environment, has led to it becoming wild, autonomous, and alive. Even though the spectator cannot “know” the statue’s head and eyes, the poem insists, an encounter with it is still possible wherein what appears as a disfigured, broken statue within our given aesthetic categories demands to be read as something else; that through poetic attention to its materiality and “thingliness,” the spectator can see the statue returning their gaze – not from its head or its “centre,” but from its every point. The final sentence of the poem raises the stakes of this encounter beyond a reciprocated gaze. The torso does not only resist the primordial grasp: it makes its own claims on the spectator, demanding that “You must change your life.”34 The open, wild, and attentive reading practice that allows Vaughan’s narrator to imagine a radical restoration while examining an old manuscript confronts the spectator of Rilke’s poem with an object that resists the primordial grasp of world-making; an object which does not only evade the categories of cultural and natural, but seems to view and judge the spectator based on its own categories — categories which remain inaccessible and illegible to her.
Conclusion: Towards an Ecological Ethics of Encounter This paper has outlined what I call an “ecological reading practice,” which endorses an ethics of encounter engaged with Heidegger and McKay’s concerns about the instrumentalization of the Other through its representation. This reading practice responds to the two ways in which a focus on the nonhuman world is often read and interpreted in poetry: either as occurring “outside” (below, before, beyond) language 33 Rainer Maria Rilke, “Archaischer Torso Apollos,” l. 10 – 15. 34 Ibid., l. 15.
Mindful Journal of Ethics 2018–2019
and cultural categories and systems of meaning, or as an instrument “through” which meaning, transcendence or the Divine make themselves known. With its acknowledgement of the “wildness” of language, an ecological reading of the same texts seeks to underscore the connection, rather than opposition, of the “natural” and “cultural” in them, and to demonstrate the ways in which material and meaning are often constitutive of each other. It resists the notion that an encounter with the otherness of the nonhuman world is merely a means of arriving at human formulations of meaning and transcendence. Instead, it attends to the strange beauty of language bent to gesture outwards: the vision of trees restored in the afterlife, of the torso of Apollo bursting “from its every border/Like a star.”35 In light of recent debates in literary and ecological studies about the merits and limitations of the aesthetics of the natural, this ecological reading practice underscores the enduring value of a poetics of the natural. Employed creatively, mindfully, and with “an extended palm,” the broadly accessible and affectively compelling language of nature poetry can allow for an encounter with the nonhuman world that opens up imaginative and representative space for the Other, honouring its autonomous, ungraspable wildness.
35 Rainer Maria Rilke, “Archaischer Torso Apollos,” l. 13 – 14.
In association with the Ethics, Society & Law Program at Trinity College, University of Toronto
Mindful Journal of Ethics is an undergraduate academic journal affiliated with the Ethics, Society & Law Program at Trinity College, Univers...
Published on Apr 16, 2019
Mindful Journal of Ethics is an undergraduate academic journal affiliated with the Ethics, Society & Law Program at Trinity College, Univers...