University of Leeds Human Rights Journal - Volume 7, Issue 1

VOLUME VII SUMMER 2019

IN FOCUS:

THE BORDER

Cover Art

‘When we blur borders, things come together and give us a sense of peace’ Bachittar Singh ISSN 2631-9993

LEEDS HUMAN RIGHTS JOURNAL A Multidisciplinary Undergraduate Journal

Human Rights Journal Team Volume VII Summer 2019

Hugo Jones BA International History and Politics Managing Editor 2018/19

Abhaya Ganashree LLB Law (3 years) Editor-in-Chief 2018/19

Lauren Smith BA Graphic Communications Design Graphic Designer 2018/19

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Mailies Fleming BA English Literature and Sociology Managing Editor 2018/19

Nathan Olsen BA Politics Online Editor 2018/19

Peer Reviewers Zenab Khan Law, Final Year Ed Cunningham History, Final Year Richard Griffin History, Final Year Kane McLaughlin Economics and Politics, Third Year Stephanie Bennett English and History, Third Year Muhammad Zulkilfi Law, Final Year Azhar Iqbal Politics and Social Policy, First Year Hawwa Iqbal Medicine and Surgery, Final Year Sotiris Pafitis Law, Second Year Feisan Minin Law, Final Year Andrew Robbins Politics, Final Year Jemima Hegerty-Ward English, Final Year

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Letter from the Editor Dear Readers, Welcome to Volume VII of the Leeds Human Rights Journal!

Having been a part of the Editorial Team through all the years of University, this Journal has been an integral part of my time at Leeds. I have an immense belief in the Journal’s potential as the only one of its kind in the country and this academic year has brought us a few steps closer to realising it. Needless to say, this Journal or any of the minor achievements along the way would not have been possible without the Editorial Team consisting of my Managing Editors, Online Editor, the Peer Reviewers, and our Graphic Designer.

Working with my Managing Editors, Mailies Fleming and Hugo Jones, has been an incredibly fruitful experience. The team was truly committed to its goal and both of them brought a great amount of creativity, enthusiasm and dedication to the job. Without their ideas and input the Journal would not be of the quality that it is. At the start of the year, we agreed that we wished to increase the Journal’s reach both within the University and the wider community as well as promote its research culture centred around human rights issues. Adding to the work the Journal had accomplished in the previous year, we were able to organise panel discussions and fundraising events.

Our online editor Nathan Olsen, another very important member of our team, has taken the initiative to develop the Human Rights Blog that we set up last year. By hiring columnists and setting up a weekly meet-up at Old Bar, he’s helped raised the profile of the Blog.

His web designing skills have been an asset to our team in helping set up the blog as well as run our social media accounts.

To connect with the wider university and promote research culture, we continued our collaboration with various research groups. Our panel discussion, which we ran in collaboration with the European Centre for R2P, helped us reach out to students across the University and promote a healthy discourse asking the question ‘are human rights a western concept?’. Striving to get more students involved across various disciplines, we struck up a unique collaboration with ‘Changing the Story’. We are grateful to them for a large share of our funding this year and I am hopeful of what this collaboration could bring about in the future.We also strived to strengthen our ties with the local community.

This included getting in touch with PAFRAS and RETAS, two incredible charities working towards seeking asylum and rehabilitating refugees in Leeds. I would like to thank both these communities for sharing in our vision and helping us host what promises to be a wonderful event on May 15th at Wharf Chambers. These organisations do some truly wonderful work to help the Leeds Community and I hope that future Editorial Teams strive to strengthen these ties.

Thanks to our dedicated social media team, we succeeded in raising the profile of the Journal and received a record number of submissions this year - academic as well as creative. I would like to thank the Peer Reviewers for painstakingly reviewing each submission

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that came through. It was a pleasure to get to know such like-minded individuals at the social events as well. With the support of Rosa Morahan, our previous Managing Editor, this year we launched the HRJ Prize for the best academic submission. I would like to thank our Academic Panel for helping us shortlist and award the prize. I would also like to thank Lauren Smith, our graphic designer for designing this edition of the Journal. Her dedication and superb graphic design skills helped us create this wonderful edition of the Journal and get it to print on time.

The funding for this year’s Journal was provided by the Department of ESSL, the School of History and ‘Changing the Story’. I would like to thank Professor Jeremy Higham, Professor Stuart Taberner, Professor Paul Cooke and Dr. Iona McLeery for their support of the Journal. We’re also immensely grateful to the Footsteps Fund for their belief in the Journal’s potential and for the Leeds for Life Award. This letter would be incomplete without expressing our gratitude to Tess Hornsby Smith for acting in her capacity as our finance manager and as a panellist. She shared in our enthusiasm and gave our ambition a direction.

I am proud of how far the Journal has come in these three years and am confident that it will only grow in the years to come. And lastly, I would like to thank Dr. James Souter for his contribution to the Journal. Considering ‘the border’ from academic and empirical perspectives, this edition aims to bring us closer to a world that is ‘less “perfect” and more free.’

Applications for next year’s editorial positions open on May 15th.

Editor-in-Chief, 2018-19

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Academic Contributors Dr James Souter Lecturer in International Relations Sara Green Third Year, History (BA) Sophie de Groot Third Year, International Relations (BA) Joseph A Cumbo* Fourth Year, Chinese and French (BA) Connie Lawfull Third Year, English and Comparative Literature (BA) Samuel Miller Fourth Year, Philosophy, Politics and Economics (BA)

Sotiris Pafitis Second Year, Law (LLB) Abhaya Ganashree Third Year, Law (LLB) Josie Canham Wiliams Graduate, French Studies (BA) Isabel Becker Fourth Year, English Literature (BA) Joshua House Third Year, Theology and Religious Studies (International) (BA) Feisan Minin Third Year, Law (LLB) Jessica Fowler Third Year, Religion, Politics and Society (BA)

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*pseudonym

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Creative Contributors Eleanor Little* Fouth Year, International History and Politics Alina Wahab Third Year, Medicine (MBChB) AM* Final Year, English Literature (BA) Peter Turley Final Year, Creative Writing (MA) Martha Adebambo Final Year, Politics Brianna Calderon* Final Year, Philosophy, Politics and Economics

Academic Panel The Panel independently chose the best original submission to win the inaugural Leeds Human Rights Journal Prize.

Dr Javier Garcia Oliva Senior Lecturer at the University of Manchester (specialising in Law, Religion and Human Rights) Dr Sam Jarvis Teaching Fellow at the University of Southampton (specialising in the Normative Foundations of International Relations) Wayne Ramwell Doctoral Candidate at the University of Leeds (specialising in Human Rights and Constitutional Law) Tess Hornsby Smith Learning and Teaching Enhancement Officer in the Faculty of Arts, Humanities and Cultures at the University of Leeds Rosa Morahan Former Managing Editor of the University of Leeds Human Rights Journal

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Contents Foreword Mailies Fleming, Hugo Jones and Nathan Olsen

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Leading Article Forced Migration and State Responsibilities Across Borders Dr James Souter

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In focus : The Border

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Winning Article HRJ Prize for Best Original Research: Between Borders in Jerusalem. Israel, Infrastructure and Issawiya; a Case Study Joshua House

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The Hijras of India: Colonial Epistemology, the ‘Deviant’ Native Sexuality and Postcolonial Legacies Sara Green

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Stranded at the Border: the Rohingya Crisis and the Responsibility to Protect Sophie de Groot

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NGOs and the Plight of North Korean Refugees in China Joseph A Cumbo

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‘Portals to Each Other and to the World’: Storytelling as the Door to Cosmopolitan Sympathy in Mohsin Hamid’s Exit West Connie Lawfull

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National Sovereignty and Human Rights in Just War Theory Samuel Miller

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Ble wyt ti’n byw?

Brianna Calderon

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Ürümqi, Xinjiang Eleanor Little

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Cyprus, An Island Split in Two: The Dangers of the Creation of a Permanent Border Sotiris Pafitis

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Ajnabia Alina Wahab

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Borderless Networks and Disappearing Front Lines: Human Rights and Cyber Warfare Abhaya Ganashree

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A State of Controlled Instability: The Restrictive Impact of Institutional Discourse on Refugees in France Josie Canham-Williams

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Etymology and Geology: Problematising the Abstracted Concept of ‘State’ for Refugees in Giorgio Agamben’s ‘Beyond Human Rights’ and Anne Michaels’ Fugitive Pieces Isabel Becker

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Crossing Borders: Critical Analysis of the Effectiveness of Regional Human Rights System Through the Eyes of Disabled People Feisan Minin

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The Impact of Human Rights Being Developed in a Western Christian Context: Does a Unified Global Human Rights Discourse Provide a Useful Framework for Global Political and Ethical Conversations?

Jessica Fowler

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Leeds Uni Protests Martha Adebambo

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Absent Seeds AM and Peter Turley

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Foreword It has been a tumultuous year for the world’s many borders. National borders have featured prominently in political rhetoric across the globe and, with the media here in Britain fixated on the border being haphazardly erected between ourselves and Europe, it can be easy to lose sight of the broader picture. Today, around 25 million people find themselves refugees outside the borders of their home countries, whilst a further 40 million are internally displaced within. We hope this issue offers a nuanced and expansive view of how borders impact people’s lives.

Following the success of last year’s theme of ‘The Forgotten’, this year we asked undergraduates to focus their academic and creative talents around the theme of ‘The Border’.The call for submissions returned an overwhelming number of essays and artistic pieces of an excellent standard. We were also pleased to see many new names who had no prior involvement with the journal, and some who have never published their work at all. To us, this reflects the principal aim of the journal: to encourage confidence in undergraduates and to provide a platform for their fantastic work.

The scope of the many disciplines through which our contributors tackled ‘The Border’ offers a variety of perspectives and arguments on the issue. As well as excellent case studies on the Rohingya crisis in Myanmar, North Korean refugees in China and the fragile border in Cyprus, some authors have also challenged the Border on a more conceptual level. Sara Green interpreted borders in the sense of gender binaries, using this perspective to analyse the relationship between British colonialism and the historical formation of a ‘third gender’ category in India. Connie Lawfull and Isabel Becker respectively used close analysis of particularly poignant novels to imaginatively illustrate the conceptual and material limits of human rights discourses. Discourse analysis was also a primary tool used in pieces which critiqued the impact of institutional discourse on refugees in France and questioned ethics of the Western Christian influences underpinning global human rights discourses.

Our Editor-in-Chief, Abhaya Ganashree, has tackled ‘The Border’ from another perspective. Her essay on the potential of cyber-warfare and its place in international humanitarian law is a stand-out piece of research that gives a nuanced understanding of the twenty-first century border.

One of the pieces we’re proudest of this year is Ajnabia, by Alina Wahab; a short graphic novel depicting her life as a young girl growing up in Saudi Arabia.The inspiration taken from Marjane Satrapi’s comic ‘Persepolis’ is clear, but Wahab has used her own experiences to make a beautiful and candid creative piece unlike anything published before in the Journal.

This piece exhibits the true value of being a multidisciplinary journal, as Wahab illustrates real emotion with both humour and heart. Likewise, the journal this year shares the moving poetry of Aimen Mahmood and Peter Turley, as well as a reflective piece written

by Brianna Calderon. We feel these creative pieces complement the academic work of our undergraduates well.

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This year, for the first time, the journal is delighted to award a prize of £100 to one undergraduate’s piece of work. The prize for best original research was decided by an independent panel and goes to a contributor who spent their year living on one of the most contested borders today. Joshua House’s essay gives an in-depth analysis of Israeli policy in the neighbourhood of Issawiya, in Jerusalem. He merges his research with firsthand knowledge the prohibitive policies he’s seen implemented in the area.

We also brought a renewed focus to the HRJ Blog, moving all of the blog contents to the main HRJ site and recruiting four Study Abroad Columnists. Each of these columnists wrote one blog per month, meaning that we were able to publish a regular column every week. In Europe, we had Tilly Brogan in Barcelona and Georgina Davis in Budapest.

Further afield, we had Sara Green in Rabat, Morocco and Briony White in Talca, Chile.The addition of columnists to our team was invaluable as they brought different perspectives to human rights issues in the countries in which they were living.These contributions ranged from a personal blog concerned with sexual harassment to the Hungarian government’s censorship of musical theatre. Alongside regular contributions from our columnists, we also received an unprecedented number of contributions from both undergraduate and postgraduate students alike. These articles included reviews of art installations and TV shows alongside our usual fare of posts concerning international politics and social issues.

None of this work would have been possible without the efforts of our Online Editor, Nathan Olsen, and our two Blog Editors, Millie Goslyn-Jones and Elysia Sun. In addition to the blog being a platform to widen the scope of our contributors and audience, we hope that the incoming Editorial Team will continue to engage with a wide audience by building on the success of the public lecture we hosted this year. The panel discussion between three leading academics from the University of Leeds (Dr Adriaan van Klinken, Dr Adrian Gallagher and Dr Kingsley Edney) celebrated the 70th Anniversary of the Universal Declaration of Human Rights whilst problematizing its western focus and relevance today.

Dr. James Souter generously contributed the leading article to this edition. Given his expertise and focus on the border, not only is it fitting but also brings a more considered perspective to the discussion. Addressing the narrow definition of ‘refugees’, Dr. Souter focuses on where the blame might fall and in turn the responsibility of taking refugees in.

We hope that this issue of the Journal encourages you to engage with human rights issues in the spirit of informed critique, to question and challenge the received order, and to consider the many ways in which borders construct our contemporary world. We are incredibly pleased to welcome you to another successful edition of the Leeds Human Rights Journal and hope you gain new insights into human rights issues from engaging with the outstanding work of our undergraduate contributors.

The Editorial Board, 2018-2019

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Leading Article: Forced Migration and State Responsibilities Across Borders Dr James Souter

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Abstract International borders have profound consequences for the safety, opportunities and life chances of human beings in the modern world. In this article, I draw on arguments put forward by contemporary political theorists to examine the various trans-border responsibilities that states can be said to bear towards one category of person left particularly vulnerable to such borders: the forced migrant. After briefly considering arguments for addressing these vulnerabilities by either abolishing or opening borders, I turn to consider what responsibilities states bear towards forced migrants within the current system of borders. Suggesting that states’ current responsibilities towards refugees and forced migrants under international law do not exhaust what is owed to them, I sketch some of the wider ethical responsibilities of states towards these persons, such as their humanitarian, reparative and condemnatory responsibilities. This, I suggest, can start to give us a fuller account of what states owe to forced migrants in a world of borders.

In a global context of widespread human rights abuse and staggering international inequality, international borders have profound human consequences. Millions of people find themselves within impoverished and violent states from birth – divided by these borders from those who generally enjoy a vastly higher standard of living1 – and have highly limited opportunities to seek safety and improved life prospects by crossing them.

Those who do flee such situations by crossing borders often have no choice but to do so irregularly, take grave personal risks, and place themselves at the mercy of border guards, smugglers and immigration officials as they embark on risky and frequently fatal journeys across land and sea. The movement of imperilled people from Africa and the Middle East across the Mediterranean towards Europe in recent years provides a stark example of the deadly nature of contemporary borders, as over 3,500 refugees and migrants lost their lives during the crossing in 2015.2 Although international borders can limit the freedom and opportunities of the world’s better-off citizens as well, certain people – known variously as refugees, forced migrants or ‘survival migrants’3 – are most vulnerable to their effects, often experiencing borders as a life-and-death matter.4 Facing serious harms such as generalised violence, persecution, socio-economic deprivation, or environmental change in their states of origin, they have an urgent need to cross borders to seek safety. Put simply, such people need to move to meet their basic needs, but borders can make this difficult, or even impossible, leaving them trapped in danger. What responsibilities do other states have towards these individuals, given the vulnerabilities created by the borders which these states erect and maintain? In this article, I explore some of the responses given to this pressing question 1 World Health Organization, ‘World Health Statistics 2014’, WHO <https://www.who.int/mediacentre/news/ releases/2014/world-health-statistics-2014/en/> [Accessed: 8 April 2019]: One illustration of this is the large gap in life expectancy between wealthy and poor states: as of 2012, the citizens of some affluent states had a life expectancy of over eighty years, whereas life expectancy for citizens of nine sub-Saharan states remained below fifty-five.

2 International Organization of Migration ‘IOM Counts 3,771 Migrant Fatalities in Mediterranean in 2015’, IOM <https://www.iom.int/news/iom-counts-3771-migrant-fatalities-mediterranean-2015> [Accessed: 5 April 2019].

3 A. Betts, Survival Migration: Failed Governance and the Crisis of Displacement (Ithaca and London, Cornell University Press, 2013).

4 The term ‘refugee’ is one that is subject to varying and conflicting definitions. As I explore below, while political theorists tend to use the term broadly as synonymous with the forced migrant – most basically, viewing the refugee as an individual forced from his or her home by the threat of serious harm – international law defines the refugee more narrowly.

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by contemporary political theorists.

To begin, there are two very radical responses to this question. The first is that international borders should simply be abolished, and the current international system should ideally be replaced by some form of borderless world government, allowing global citizens to move as they please. If borders limit human freedom, and imperil forced migrants in particular, then a wholesale scrapping of these borders may seem to be the optimal solution. However, while the idea of world government has been advocated by some political theorists,5 it is not clear that the abolition of borders would necessarily guarantee any improved prospects of protection for forced migrants. This is because, if such a world government turned nasty, then those whom it persecuted would have nowhere to run. As Hannah Arendt6 pointed out, a world government ‘could easily become the most frightful tyranny ever, since from its global police force there would be no escape, until it finally fell apart’. At least within the current system of international borders, there are safer states to which forced migrants can flee in order to seek sanctuary.

The second more radical response is to argue that, while states and borders can legitimately remain, the vulnerabilities imposed on both forced and voluntary migrants by border regimes should be addressed by opening them up, through recognition by states of a right to international freedom of movement. This alternative would allow forced migrants to move freely to secure their basic rights, without potentially jeopardising their right of exit from their political community by introducing some form of world government.

Some political theorists have argued that liberal values of freedom, equality of opportunity and human rights require that borders be open as a matter of justice7. While such arguments do not apply only to the case of forced migrants, it is clear that open borders would significantly reduce the current vulnerabilities of this group in particular as, instead of being forced to undertake perilous journeys, they could cross borders in order to seek asylum through safe, legal channels. Nevertheless, the prospects of achieving open borders (let alone any form of world government) in current political conditions – characterised by increasing nationalist sentiment in liberal-democratic states – seem dim, for states and their citizens very often view the maintenance of territorial borders as an integral expression of their national sovereignty.8 If, then, borders seem to be here to stay, at least for the foreseeable future, then the 5 See for an overview of recent debate over the prospects of world government: L. Cabrera, ‘Review Article: World Government: Renewed Debate, Persistent Challenges’, European Journal of International Relations, 16.3 (2010), 511-530.

6 H Arendt, Crises of the Republic (Orlando, Harcourt Brace & Company, 1972), p. 230.

7 J.H. Carens, ‘Aliens and Citizens: The Case for Open Borders’, Review of Politics, 49.2 (1987), 251-273; J.H. Carens, ‘Migration and Morality: A Liberal-Egalitarian Perspective’, in Free Movement. Ethical Issues in the Transnational Migration of People and of Money, ed. by B. Barry and R. Goodin (Hemel Hempstead, Harvester Wheatsheaf, 1992), 25-47; K. Oberman,‘Immigration as a Human Right’, in Migration in Political Theory: The Ethics of Movement and Membership, ed. by S. Fine and L.Ypi (Oxford, Oxford University Press, 2016).

8 D. Miller Strangers in our Midst: The Political Philosophy of Immigration (Cambridge, MA, Harvard University Press, 2016), pp.113-5: Some political theorists also argue that borders can be morally legitimate, as an expression of the national self-determination of citizens of particular states.

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question before us shifts slightly: what responsibilities do states bear towards forced migrants within the current system of borders? My starting point for reflection on this question is, again, that suffering and death are utterly foreseeable consequences of a state’s decision to erect and maintain territorial borders, even if they operate a reasonably inclusive asylum and immigration policy at the same time. Dramatic reports of such suffering and death in the waters of the Mediterranean,9 and of ‘caravans’ of refugees and migrants moving towards the border of the United States (US),10 make this fact even harder to ignore. If states can clearly anticipate these grave consequences, then we might think that they have a clear responsibility to work to prevent them. Relatedly, Joseph Carens11 has argued,

Because the state system assigns people to states, states collectively have a responsibility to help those for whom this assignment is disastrous. The duty to admit refugees can thus be seen as an obligation that emerges from the responsibility to make some provision to correct for the foreseeable failures of a social institution.

To develop this point, we can draw on the following analogy: one consequence of society dividing itself up into discrete family units is that some number of children in each generation will – due to parental death, neglect, incapacity or even malice – not have their basic needs met, and this gives rise to a responsibility on the part of that society to ensure surrogate care to them, through measures such as foster parenting schemes or support from social services.12 Just as the state can have responsibilities to children ‘in loco parentis’ (in place of a parent), it may also have similar responsibilities to forced migrants ‘in loco civitatis’ (which could be translated as ‘in place of a state’.13 This, then, might seem to move us naturally towards a humanitarian understanding of states’ trans-border responsibilities towards forced migrants.14 Humanitarianism can be understood as a moral imperative to relieve suffering where the costs of doing so are

9 United Nations High Commissioner for Refugees, ‘Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders, January – December 2018’, UNHCR <https://www.unhcr.org/ desperatejourneys/> [Accessed: 8 April 2019].

10 Amnesty International, ‘Americas: Stuck at the Door. The Urgent Need for Protection of Central American Refugees, Asylum Seekers and Migrants in the Caravans’, Amnesty International <https://www.amnesty.org/ download/Documents/AMR0194472018ENGLISH.PDF> [Accessed: 8 April 2019].

11 J.H. Carens, The Ethics of Immigration (Oxford, Oxford University Press, 2013), p. 196.

12 J.H. Carens, ‘States and Refugees: A Normative Analysis’, in Refugee Policy: Canada and the USA, ed. by H. Adelman (Toronto,York Lanes Press Ltd., 1991), 18-29, p.20.

13 D. Owen, ‘In Loco Civitatis: On the Normative Basis of the Institution of Refugeehood and Responsibilities for Refugees’, in Migration in Political Theory: The Ethics of Movement and Membership, ed. by S. Fine and L.Ypi (Oxford, Oxford University Press, 2016), 269-289; B. Harrell-Bond, ‘Can Humanitarian Work with Refugees Be Humane?’, Human Rights Quarterly, 24.1 (2002), 51-85: Although we should be cautious about comparing forced migrants to children – as the former are often subject to paternalistic policies from states and humanitarian organisations – the institution of international borders, like that of the family, seems to create similar responsibilities to remedy their harmful effects.

14 D. Owen, ‘In Loco Civitatis: On the Normative Basis of the Institution of Refugeehood and Responsibilities for Refugees’, in Migration in Political Theory: The Ethics of Movement and Membership, ed. by S. Fine and L. Ypi (Oxford, Oxford University Press, 2016), 269-289: However, it might be seen as pointing not only to a humanitarian view of asylum: as David Owen (2016) has argued, actions to correct for the foreseeable failures of the international system of states, such as forced migration, should be seen as condition of the legitimacy of this system.

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relatively low.15 A humanitarian approach to asylum has become the dominant way of thinking about states’ responsibilities towards forced migrants, and a key part of the international refugee protection regime which has developed since the end of World War Two.16 For instance, the United Nations refugee agency, the UN High Commissioner for Refugees (UNHCR), has conceived of its own work to assist refugees and secure them asylum in humanitarian terms, with its Statute characterising this work as being of a ‘humanitarian and social’ and ‘entirely non- political character’.17 Although states and humanitarian organisations are often silent about the impact of borders per se, this humanitarian approach can be seen as flowing from recognition of their effects: if states are going to insist on dividing the world up into territorial borders, then they must make arrangements to prevent that system from causing serious harm to human beings constrained by them. While borders may, for now, simply be part of political reality, their harmful effects should be mitigated by making exceptions for those at the sharp end of them. Indeed, this is partly how the institution of asylum has operated in liberaldemocratic states; as Matthew Price18 has put it, asylum functions as a humanitarian ‘loophole in otherwise restrictive immigration policies’.

Nevertheless, these humanitarian exceptions to border regimes enshrined in the international refugee regime have, despite saving many lives, suffered from some wellestablished flaws,19 mitigating the harms imposed by borders only partially and very imperfectly. For instance, various political theorists have criticised existing international refugee law for defining the refugee too narrowly, and excluding many other forced migrants who may be equally in need of protection.The key international legal instrument related to refugees, the 1951 Refugee Convention, defines a refugee as an individual who has a ‘well-founded fear’ of persecution. While this may have largely fit the realities of displacement in Europe during the period in which the 1951 Refugee Convention was framed, following the chaos of the Second World War, it now excludes very many forced migrants, who often find themselves in the crossfire of generalised violence, unable to eke out their basic subsistence or, increasingly, to cope as climate change begins to bite.20 While some regional legal instruments concerning refugees, in Africa and Latin America,21 have more expansive understandings of what it means to be a refugee, the entitlements of forced migrants in practice are patchy and inconsistent, depending upon which frameworks apply to them in the states or regions in which they flee, or whether they fall into the cracks between them.

Instead of this existing legal definition, various political theorists argue, our conception of the refugee needs to be expanded in order to include those who flee serious harm of whatever sort. For Andrew Shacknove,22 for instance, the refugee should be understood 15 M.J. Gibney, The Ethics and Politics of Asylum. Liberal Democracy and the Response to Refugees, (Cambridge, Cambridge University Press, 2004), p. 231.

16 M.E. Price, Rethinking Asylum: History, Purpose and Limits (Cambridge, Cambridge University Press, 2009), p.4.

17 United Nations High Commissioner for Refugees, ‘Statute of the Office of the United Nations High Commissioner for Refugees’, UNHCR <http://www.unhcr.org/3b66c39e1.html> [Accessed: 8 April 2019], p.6.

18 M.E. Price, Rethinking Asylum, p.3-4.

19 A. Betts and P. Collier, Refuge: Transforming a Broken Refugee System (London, Penguin, 2017).

20 A. Betts, Survival Migration.

21 For instance, the 1969 Convention on the Specific Aspects of Refugee Problems in Africa, and the 1984 Cartagena Declaration, go beyond the Refugee Convention’s narrow requirement of persecution.

22 A.E. Shacknove, ‘Who is a Refugee?’, Ethics 95.2 (1985), 274-284.

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as an individual whose relationship with their state has been severed, as a consequence of a fundamental breakdown of the social contract between state and citizen.From this perspective, it is morally arbitrary to privilege the persecuted when other forced migrants may be equally in need as a result of their estrangement from their state of origin.23 This is just one well-established reason why the current international refugee regime is not living up to its humanitarian rationale. States would be able to claim that they are genuinely remedying the foreseeable harms of their border regimes to a significantly greater extent if they were willing to expand the definition of the refugee.24 Nevertheless, even if states took this step, there is reason to think that there are other kinds of responsibilities borne by states towards forced migrants besides the simply humanitarian, which they must also fulfil if they are to do what justice requires in this context. In the remainder of this article, for reasons of space I focus on just two: states’ reparative and condemnatory responsibilities.

One reason for thinking that states’ responsibilites towards forced migrants go beyond the purely humanitarian comes into view when we look more closely at the causes of displacement in the contemporary world. While the humanitarian approach to asylum is, in practice, often indifferent to the causes of forced migrants’ flight and to assigning responsibility on this basis,25 it is not hard to see that many refugee crises are far from being purely local affairs, hardly produced in isolation from global dynamics. Huge numbers of forced migrants are generated as a result of external military intervention, whether we point to the Syrians uprooted by the Syrian regime’s onslaught against the civilian population, backed by Russia and Iran, as part of its brutal civil war, or the millions of Iraqis forced out by the upheavals following the US invasion of Iraq in 2003.

The forced migrants we can expect to be displaced by the effects of climate change will have been uprooted by a global process spearheaded by the excessive emissions of the world’s most affluent states. And we might also look to historical processes, which arguably may have contributed to, or set the stage for, contemporary forced migration crises. For instance, some aspects of colonial rule have arguably stoked ethnic tensions which persist to this day, and have encouraged conflict by placing previously selfdetermining groups within the same fragile state structures.

When these processes come more closely into view, we can more easily make the case that, as well as being a humanitarian matter of simply relieving suffering, states’ transborder responsibilities to forced migrants should also at times be understood as a matter

23 M.J. Gibney, ‘Refugees and Justice Between States’, European Journal of Political Theory, 14.4 (2015), 448-463; Nevertheless, some political theorists have sought to identify something special about persecution which renders the protection of the persecuted over other necessitous individuals morally justified. For such attempts, see for example: M.E. Price, Rethinking Asylum; J.C. Hathaway, ‘Forced Migration Studies: Could We Agree Just to “Date”?’, Journal of Refugee Studies, 20.3 (2007), 349-369; M. Lister, ‘Who Are Refugees?’, Law and Philosophy, 32.5 (2013), 645-671.

24 L. Ferracioli, ‘The Appeal and Danger of a New Refugee Convention’, Social Theory and Practice 40(1) (2014) 123-144; However, perhaps we should be cautious, given the current hostility towards refugees, about opening up international refugee law for reform, for this may run the risk of weakening the existing protections currently available to refugees.

25 J. Souter, ‘Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to Refugees?’, Journal of Refugee Studies, 27.2 (2014), 171-90, pp.171-2.

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of reparation.26 As the political theorist, Michael Walzer,27 has famously suggested,

Toward some refugees, we may well have obligations of the same sort that we have toward fellow nationals. This is obviously the case with regard to any group of people whom we have helped turn into refugees.

The injury we have done them makes for an affinity between us: thus Vietnamese refugees had, in a moral sense, been effectively Americanized even before they arrived on these shores.

If, in common moral thought, reparative duties are seen as stronger than humanitarian duties, then the responsibility to offer asylum as reparation should be seen as a highly stringent one.

Furthermore, there are other, more particular ways of thinking about states’ responsibilities to forced migrants across borders. If we look to the ways in which asylum has operated earlier in modern history, then its potential function as an expression of condemnation comes into view.28During the Cold War, the US saw asylum as a means of ideological ‘points-scoring’ against the Communist adversary; viewing the welcome of dissidents from Communist states as a way of discrediting Communism as a whole. While this had some highly inequitable consequences for forced migrants – with Cubans being more likely to gain asylum than Haitians fleeing non-Communist dictatorship, for instance29 – the use of asylum as a way of condemning other states may, if it avoids such consequences, have a sound moral basis. As Price30 has argued, asylum can act as ‘one element of a strategy to reform the abusive practices of the state of origin’, alongside others such as sanctions and even military intervention. It may contribute to wider improvements in human rights, beyond the immediate protection of individual forced migrants.

In conclusion, if borders are here to stay for the foreseeable future, then their often harsh consequences for the world’s most vulnerable people gives rise to a number of significant trans-border responsibilities on the part of states. Drawing on the resources of contemporary political theory, I have sketched a typology of these responsibilities: a humanitarian responsibility to correct for these consequences, which has only been very inadequately fulfilled in practice in the modern era; a reparative responsibility to make amends for actions which have created forced migrants; and a responsibility to condemn the actions of illegitimate refugee-producing states through grants of asylum.31 In this short article, I have not been able to examine how these responsibilities should be seen as fitting together, or to ask whether they are compatible in practice. If a state

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26 J. Souter, ‘Towards a Theory of Asylum as Reparation for Past Injustice’, Political Studies, 62.2 (2014), 326-342; D. Miller Strangers in our Midst: The Political Philosophy of Immigration (Cambridge, MA, Harvard University Press, 2016), p.113-5.

27 M. Walzer, Spheres of Justice: A Defence of Pluralism and Equality (New York, Basic Books, 1983), p.49.

28 M.E Price, Rethinking Asylum.

29 M.J. Gibney, The Ethics and Politics of Asylum, p.132.

30 M.E. Price, Rethinking Asylum, p.75.

31 M. Walzer, Spheres of Justice, p.49: This typology is not intended to be exhaustive: states may also, for instance, arguably bear special responsibilities towards forced migrants with whom it shares particular affinities, whether ideological, linguistic or religious, rendering grants of asylum a potential expression of solidarity with those particular forced migrants.

can genuinely only admit a few more forced migrants given limited capacity and is faced with the arrival of some for whose flight it is responsible, and some who are needier, then the state’s reparative and humanitarian responsibilities enter into conflict,32 creating a dilemma between them. However, this sketch of states’ responsibilities towards forced migrants nevertheless indicates the way states have to go if they are to truly address the human consequences of their border regimes in a deeply troubled world.

32 J. Souter, ‘Durable Solutions as Reparation’, p.171-190.

Bibliography Amnesty International, ‘Americas: Stuck at the Door. The Urgent Need for Protection of Central American Refugees, Asylum Seekers and Migrants in the Caravans’, Amnesty International <https://www.amnesty.org/download/Documents/ AMR0194472018ENGLISH.PDF> [Accessed: 8 April 2019) Arendt, H., Crises of the Republic (Orlando: Harcourt Brace & Company, 1972) Betts, A. and P. Collier, Refuge: Transforming a Broken Refugee System (London: Penguin, 2017) Betts, A., Survival Migration: Failed Governance and the Crisis of Displacement (Ithaca and London: Cornell University Press, 2013) Cabrera, L., ‘Review Article:World Government: Renewed Debate, Persistent Challenges’, European Journal of International Relations, 16.3 (2010), 511-530 Carens, J.H., ‘Aliens and Citizens: The Case for Open Borders’, Review of Politics, 49.2 (1987), 251-273 Carens, J.H., ‘Migration and Morality: A Liberal-Egalitarian Perspective’, in Free Movement.

Ethical Issues in the Transnational Migration of People and of Money, ed. by B. Barry and R. Goodin (Hemel Hempstead: Harvester Wheatsheaf, 1992), 25-47 Carens, J.H., ‘States and Refugees: A Normative Analysis’, in Refugee Policy: Canada and the USA, ed. by H. Adelman (Toronto:York Lanes Press Ltd., 1991), 18-29 Carens, J.H., The Ethics of Immigration (Oxford: Oxford University Press, 2013) Ferracioli, L., ‘The Appeal and Danger of a New Refugee Convention’, Social Theory and Practice, 40.1 (2014), 123-144 Gibney, M.J., ‘Refugees and Justice Between States’, European Journal of Political Theory, 14.4 (2015), 448-463 Gibney, M.J., The Ethics and Politics of Asylum. Liberal Democracy and the Response to Refugees, (Cambridge: Cambridge University Press, 2004)

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Harrell-Bond, B., ‘Can Humanitarian Work with Refugees Be Humane?’, Human Rights Quarterly, 24.1 (2002), 51-85 Hathaway, J.C.,‘Forced Migration Studies: Could We Agree Just to “Date”?’, Journal of Refugee Studies, 20.3 (2007), 349-369 International Organization of Migration ‘IOM Counts 3,771 Migrant Fatalities in Mediterranean in 2015’IOM <https://www.iom.int/news/iom-counts-3771-migrantfatalities-mediterranean-2015> [Accessed: 5 April 2019] Lister, M., ‘Who Are Refugees?’, Law and Philosophy, 32.5 (2013), 645-671 Miller, D. Strangers in our Midst:The Political Philosophy of Immigration, (Cambridge, MA: Harvard University Press, 2016) Oberman, K.,‘Immigration as a Human Right’, in Migration in Political Theory: The Ethics of Movement and Membership, ed. by S. Fine and L.Ypi (Oxford: Oxford University Press, 2016) Owen, D.,‘In Loco Civitatis: On the Normative Basis of the Institution of Refugeehood and Responsibilities for Refugees’, in Migration in Political Theory: The Ethics of Movement and Membership ed. by S. Fine and L.Ypi (Oxford: Oxford University Press, 2016) Price, M.E. Rethinking Asylum: History, Purpose and Limits (Cambridge: Cambridge University Press, 2009) Shacknove, A.E. ‘Who is a Refugee?’, Ethics, 95.2 (1985), 274-284 Souter, J., ‘Durable Solutions as Reparation for the Unjust Harms of Displacement: Who Owes What to Refugees?’, Journal of Refugee Studies, 27.2 (2014), 171-90 Souter, J., ‘Towards a Theory of Asylum as Reparation for Past Injustice’, Political Studies, 62.2 (2014) 326-342 United Nations High Commissioner for Refugees, ‘Desperate Journeys: Refugees and Migrants Arriving in Europe and at Europe’s Borders, January – December 2018’ UNHCR <https://www.unhcr.org/desperatejourneys/> [Accessed: 8 April 2019]

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HRJ Prize for Best Original Academic Research: Between Borders in Jerusalem. Israel, Infrastructure and Issawiya; A Case Study.

Joshua House

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Abstract In 1967 Israel sought to unify the city of Jerusalem and undertook the de facto annexation of East Jerusalem.Whilst seeking to unify the land of Jerusalem, Israel did not fully consider the impacts of adopting a sizable non-Jewish populous and since 1967 the Palestinian presence in East Jerusalem has been regarded as a demographic inconvenience. As a result of this East Jerusalemites were given residency, as opposed to citizenship, have been deprived of adequate infrastructure, and have been systematically oppressed. In this piece I will seek to investigate the contemporary impacts of these policies on the neighbourhood of Issawiya in East Jerusalem. Issawiya being unique both geographically and with regards to the specific issues faced by residents makes it an archetypical example of the oppression faced by Palestinians in East Jerusalem. By detailing current policies and issues we will be able to see how Issawiyans, as people between borders, are, and their presence in Jerusalem is, undermined, unwanted and denied dignity.

After the Six Day War in 1967, resulting in a decisive victory for Israel, Israel undertook the de facto annexation of East Jerusalem in a bid to merge East and West Jerusalem as the unified capital of the Jewish State. Despite considering the land necessary to the unity of Jerusalem, the Israeli Government did not extend the same considerations to its Arab residents. Rather they saw and, as we will note, continue to see the Arab presence as a demographic inconvenience. In return, the Arab Jerusalemites continue to consider the Israeli presence as an illegal and unjust presence – an opinion supported by International Laws and the international community.

As has been the situation for 52 years, the Israeli Government claims sovereignty over East Jerusalem and has continued its violation of the rights of East Jerusalemites. With imprudent revocation of residency rights, a severe lack of services and infrastructure, and discriminatory treatment of Jerusalemites, the Israeli government seeks to disempower Arab residents.These Jerusalemites have found themselves between borders.They reside in Jerusalem, are rooted in Jerusalem and have family histories that extend over centuries; however, they are considered occupants having no right to the land, dwelling on it whilst lacking any legitimate entitlement to it.

This essay will focus on the wide-ranging contemporary impacts of the annexation and occupation on the residents of East Jerusalem, before examining this reality for the neighbourhood of Issawiya, sitting in the far corner of East Jerusalem. Although Issawiya has not been the focus of extensive academic research, its unique geographical situation – cradled between the Hebrew University of Jerusalem’s Mount Scopus Campus, the first settlement of French Hill and the ‘separation wall’ – alongside the implementation of Israeli policies and lack of infrastructure makes it an emblematic case study of the array of discriminatory measures imposed on Jerusalemites.Without attempting to gauge all of the multi-layered complexities of the experiences of oppression in East Jerusalem I will, nonetheless, seek to evidence how these residents’ lives are impacted by some of the more destructive measures so to highlight ways that Israel seeks to undermine Palestinian human rights in Jerusalem.

East Jersualem from Occupation to Annexation 22

In 1947, the UN partition plan (Resolution 181) sought for an economic union between

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Israel and Palestine, and where Jerusalem was to ‘be established as a corpus separatum under a special international regime… administered by the United Nations’, in order to encourage a peaceful living situation between inhabitants and to ensure the protection of the religious sites. 1 In response to the resolution, Israel declared its independence as the State of Israel whilst neighbouring Arab countries Egypt, Transjordan, Syria and Lebanon refuted the partition, and military hostilities began.2 As a result of the war, Jerusalem was split between East and West; Israel administered the West, whilst Jordan the East.3 Running through the city was the 1949 Armistice line, a zone that allowed only for crossings of diplomats, Christian pilgrims on Christian holidays and bi-monthly crossings for Israeli convoys to the Hebrew University of Jerusalem on the Mount Scopus campus.4 Over the ensuing 18 years, with occasional clashes in Jerusalem, tensions held to with the neighbouring Arab countries to varying degrees. It was during mounting tensions over the closure of Straits of Tiran by Egypt, which rendered Israel’s access to the south of the Red Sea obsolete, that provoked pre-emptive strikes by Israel on Egypt’s Airforce bases in the Sinai which began the Six Day War.5 On the 5th of June, Egypt, Syria and Jordan launched an attack on Israel from numerous flanks, lasting for six days, unexpectedly resulting in the quick success of Israel, a move which astounded even her own military leaders.6 At the end of this war, Israel occupied the Golan Heights, the West Bank, East Jerusalem, Gaza and the Sinai Peninsula. Israel did not return the Sinai Peninsula to Egypt until 1982, and has maintained a presence in some form in the Golan Heights, West Bank, East Jerusalem and also Gaza.7 The shock success was interpreted by some Israelis as a sign from God of Israel’s right to exist, and a religious fervour gripped Israel. Even the most secular of military Generals, Moshe Dayan, attested ‘We have returned to all that is holy in our land.We have returned never to be parted from it again.’8 Empowered, Israel extended the municipal boundaries of Jerusalem by 70.5 km2 and Israel began its jurisdiction there.9 East Jerusalem had been de facto annexed.

There was no formal recognition of this move until 1980 when the Knesset declared, in the constitutional Jerusalem Basic Law, that ‘Jerusalem, whole and united, is the capital of Israel’.10 Despite not formally calling this an annexation, it was de jure.This action was the consolidation of Israeli jurisdiction and authority in East Jerusalem.

1 United Nations General Assembly (UNGA), Resolution 181/2: Future Government of Palestine, 27 November 1947 < https://unispal.un.org/unispal> [Accessed: 8 February 2019].

2 Henry Cattan, Palestine, the Arabs and Israel: The Search for Justice (London: Longman, 1969), p.36.

3 Benny Morris, 1948: A History of the First Arab-Israeli War (London:Yale University Press, 2008), pp. 386-387.

4 Raphael Israeli, Jerusalem Divided: The Armistice Regime 1949-67 (London: Frank Cass, 2002), pp.90-108.

5 Chaim Herzog, The Arab-Israeli Wars: War and Peace in the Middle East (London: Arms and Armour Press, 1982), pp.150-152.

6 Chaim Herzog, The Arab-Israeli Wars, p.189.

7 Israel has withdrawn from Gaza but controls its main borders. There is currently a humanitarian crisis in Gaza and the picture is far more complex than we could intend on entering here.

8 David Hulme, Identity, Ideology and the Future of Jerusalem (New York: Palgrave Macmillan, 2006), p.54 9 UN OCHA oPT, The Planning Crisis in East Jerusalem: Understanding the Phenomenon of Illegal Constuction (Jerusalem: UNOCHA, 2009), p.2.

10 Israel Knesset, Basic Law: Jerusalem, Capital of Israel (1967)

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Between Borders for East Jerusalemites and Infrastructure East Jerusalemites, although eligible for services and infrastructure, have been discriminated against and denied services over the past 52 years; denied the same opportunities and services afforded to citizens of West Jerusalem. Although not exhaustive, the following set of issues clearly expound ways in which Jerusalemites’ human rights go unconsidered; (1) their residency status as ‘permanent resident’ as opposed to ‘citizen’ of Israel, (2) no urban plan for the majority of hard infrastructure in East Jerusalem, and (3) a serious lack of services and provisions from the municipality.

i. Residency Rights Israel’s illegal annexation of East Jerusalem has had wide-ranging impacts on Jerusalemites.

Most notably, and illustrative of the current situation in East Jerusalem, is the residential status of Jerusalemites. Unlike Israeli-Arabs, who were within Israel upon the partition of 1948 and have full citizenship, East Jerusalemites who currently live within what Israel considers its borders, are holders of a ‘permanent resident status’. Jerusalemites are allowed to vote in municipal elections, but the majority do not in protest of Israel’s claimed sovereignty. East Jerusalemites lack entitlement to voting rights in national elections, cannot run for mayor in Jerusalem and, what we shall focus on, can have their residency revoked at the whim of the courts.11 Although able to apply for Israeli citizenship, an often long and arduous process of which only a negligible minority apply, most Jerusalemites continue to hold ‘permanent residency status’.12 In practice this means that Jerusalemites live in a precarious situation which leaves them vulnerable to the revocation of their residency status. The revocations have been deplored by NGOs and have become known as ‘silent transfers’, by the method in which they remove Palestinians from Jerusalem.13 Since 1967, 14,595 revocations have occurred, enabling a more suitable demography for a Jewish majority.14 There are two main cases where a person could have their residency revoked today through either their ‘centre of life’ failing to be in Jerusalem or, since 2015, revocation for who are loosely defined as ‘terrorists’. Both cases are subject to the interpretations of judges, the second being particularly problematic, being used for cases which question a resident’s ‘allegiance’ to the state of Israel, with revocations ranging from political affiliation to Hamas to throwing stones at soldiers.15

ii. Urban Planning (Hard Infrastructure) One of the greatest obstacles for East Jerusalemites is building sufficient housing for the population growth, a result of housing policy from the Jerusalem Municipality. Stemming from the British Mandate period (1920-1948), the British oversaw the expansion of the 11 Ir Amim, Permanent Residency: A Temporary Status set in Stone (2012), pp.7, 36 <http://www.ir-amim.org.il/ sites/default/files/permanent%20residency.pdf> [Accessed: 3 February 2019].

12 Dov Lieber, ‘Israel almost entirely halts citizenship approvals for East Jerusalemites’, The Times of Israel, 26 September 2016 <https://www.timesofisrael.com/israel-almost-entirely-halts-citizenship-approvals-for-eastjerusalemites> [accessed 6 February 2019]; Ir Amim, Permanent Residency, pp.33-35.

13 Ir Amim, Permanent Residency, p.38.

14 ACRI, East Jerusalem: Facts and Figures 2017 (2017), p.1 < https://law.acri.org.il//en/wp-content/ uploads/2017/05/Facts-and-Figures-2017-1.pdf> [Accessed: 3 February].

15 Tamara Tawfiq Tamimi, ‘Revocation of Residency of Palestinians in Jerusalem’, Jerusalem Quarterly, 72 (2017), 37-48 (pp.39-41).

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city from beyond the walls of the Old City and sought significant growth and urban planning in West Jerusalem, whilst ignoring that in East Jerusalem.16 The strict use of urban planning has been the foundation of Israeli policy in West Jerusalem, where urban planning is the prerequisite for development work. However, for the conglomeration of villages which now composes East Jerusalem there was no such plan, and as they are now consolidated into Jerusalem, their development is significantly stifled.

Overpopulation has become the norm in East Jerusalem, where Jerusalemites have been severely hampered in their endeavours to build new homes for their increasing families.17 The root of these issues can be found in a ‘shortage of area zoned for Arab residential construction’, a low floor area ratio compared to West Jerusalem, a ‘lack of public facilities’, of which Israeli law requires a minimum of infrastructure to be able build, and a ‘lack of detailed plans’ which, owing to the bureaucracy of Jerusalem Municipality can take beyond 20 years for approval.18 Alongside these practical considerations, there is significant difficulty in obtaining a building permit. The cost of a building permit is incredibly high, unachievable for the 60% or Arab families living below the poverty line.

Moreover, complications arise surrounding land registration, where the traditional forms of Arab land ownership are not recognised by Israel.19 Jerusalemites have two options, should they wish to expand: either build illegally or move beyond Jerusalem. But as mentioned, if Jerusalemites do move beyond East Jerusalem they can have their residency quickly revoked. Some Arabs who have remained within the Municipality, but in the parts removed from the city by the wall, in Shu’fat Refugee Camp or Kafr Aqab, are now threatened with removal from the city.The 2017 Greater Jerusalem Bill seeks to open the possibility of ‘conducting a massive transfer of Palestinian residents from Jerusalem’ and removing them from the Jerusalem municipality by redrawing the municipal boundaries.20 In order to support families, East Jerusalemites have resorted to illegal construction, because it is not feasible to create the space needed any other way.

The municipality regularly responds to these with house demolitions, creating a vicious cycle. Since 1967 the UN OCHA estimates that 2000 house demolitions have taken place in East Jerusalem.21

iii. Services (Soft Infrastructure) Despite East Jerusalemites refusing to recognise Israeli sovereignty, they should 16 Nicholas Roberts, ‘Dividing Jerusalem: British Urban Planning in the Holy City’, Journal of Palestine Studies, 42.2 (2013), 7-26, p.10.

17 Bimkom, Trapped by Planning: Israeli Policy, Planning and Development in the Palestinian Neighbourhoods of East Jerusalem (Jerusalem, 2014), p.85 <http://bimkom.org/eng/wp-content/uploads/TrappedbyPlanning.pdf > [Accessed: 5 February 2019].

18 Floor area ratio is the amount of land allocated for building. It is used to combat urban density by dictating how large the building can be without stipulating the exact dimensions; Francesco Chiodelli, ‘Planning illegality: The roots of unauthorised housing in Arab East Jerusalem’, Cities, 29 (2012), 99-106 pp.102-104; Bimkom, Trapped by Planning, pp.74-77.

19 Francesco Chiodelli, Planning Illegality, p.104; ‘traditional forms of Arab land ownership’ can refer to the ways in which historically land was owned by groups, rather than individuals.

20 Eir Amim, Destructive Unilateral Measures to Redraw the Borders of Jerusalem (2014), p.14 <www.ir-amim. org.il> [Accessed Online 9 February 2019].

21 UN OCHA oPT, The Planning Crisis, p.2.

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nonetheless be entitled to all of the same services. However, not only are Jerusalemites at a significant disadvantage with regards to the physical urban planning but they are also not afforded the same kind, nor standard, of services. In 2017 the Association for Civil Rights in Jerusalem released a report compiling the discrepancy of services between East and West Jerusalem.22 They noted that East Jerusalemites consisted of 37% of the population of Jerusalem; where 76% of them live under the poverty line compared to a poverty rate of only 21.7% in the whole of Israel. Welfare services have only 4 offices in East Jerusalem compared to 19 in the West; 6 ‘Infant Healthcare Clinics’ compared to 27 in West Jerusalem; 9 Post Offices in East Jerusalem compared to 34 in West Jerusalem.

The balance of services that East Jerusalemites receive shows a policy of deliberate discrimination by the Jerusalem Municipality. The picture is still more complicated but we are nonetheless able to glean an insight into the decisions that have been made in the municipality and to whom priority is given for these policies.

Life in Issawiya Combined with the aforementioned issues, Issawiya, in its isolated location, is at a particular disadvantage where its residents are denied dignified lives. Issawiya is fettered by a scarcity of approved infrastructure, and what is approved is cumbersome to Issawiyans.

Looking at the picture of Issawiya we will explore the impacts of its location and policies towards it; the impacts of its cradled location within Mount Scopus and the ‘separation wall’, lack of physical infrastructure, arbitrarily imposed checkpoints and closure of main roads through Issawiya, alongside attempts to expropriate the only suitable areas for expansion.

i. Land Loss: Settlements and the Wall When Israel began imposing its law, jurisdiction and administration upon the residents of East Jerusalem, its first measure was to manufacture a residential-bridge between West Jerusalem and the Hebrew University, out of concern for the isolated location of the Hebrew University’s Mount Scopus campus in East Jerusalem.23 This was the impetus behind the creation of the first two settlements of French Hill and Ramat Eshkol in 1969.

In the creation of French Hill and extensions of the Hebrew University, Issawiya saw the loss of 1.2km2 of land.24 It was one of the first areas to be impacted by this process of Israelization in East Jerusalem; setting the precedent for a future of undermining Issawiyans’ rights.

Similarly, upon the completion of the ‘Jerusalem envelope’ of the ‘separation wall’ in 2005, Issawiyans had access to their land severed, with 72% of their land extending far beyond 22 ACRI, East Jerusalem, pp.1-8.

23 Marshall Breger, ‘Understanding Jerusalem’, Middle East Quarterly, 4.1 (1997), <https://www.meforum. org/343/understanding-jerusalem> [Accessed: 4 February 2019].

24 Martina Rieker and Dalia Habash, ‘The Unmasking of Palestinian Neighbourhoods in Jerusalem: ‘French Hill’ in Focus’, Jerusalem Quarterly, 3 (1999), 35-39, p.38, <https://www.palestine-studies.org/sites/default/files/jqarticles/3_Unmaking_1.pdf> [Accessed: 6 February 2019].

25 Rami Nasrallah, ‘The Jerusalem Separation Wall: Facts and Political Implications’, in The Wall: Fragmenting the Palestinian Fabric in Jerusalem, ed. Robert D. Brooks (Jerusalem: International Peace and Cooperation Center Jerusalem, 2007), 13-27, p.18; ARIJ, ‘Isawiya Town Profile (2012), pp.10-13 <http://vprofile.arij.org/jerusalem/pdfs/ vprofile/isawyieh.pdf>, [Accessed: 7 February 2019].

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the wall, in this case, beyond the Municipality borders too.25 The wall has been a defining feature of the difficulties faced by Issawiyans. Many Jerusalemites have returned to their homes in order to retain their residency, which has in turn increased overpopulation in these areas, putting a strain on the already limited resources.26

ii. Restricted Movement: Entrances and Exits Alongside the loss of land, the infrastructure that has been built proves to be burdensome for Issawaiyans who are confined to only four main roads entering and exiting the neighbourhood.Two are main road which lead onto Highway 1 which encircles the village between to the wall. Of the remaining two roads one leads to, and through, French Hill and the other to through the Hebrew University campus. However, since the second intifada in 2005, the road through the Hebrew University has been closed. Accordingly, this means that the main routes out of the village are either through the already busy French Hill settlement or a significant detour at rush hour.The roads in Issawiya itself are not suited for purpose or the demands of the high levels of traffic. 27 Complicating the picture even more is the arbitrary imposition of checkpoints in Issawiya.

In 2015 the regular implementation of checkpoints was described by a researcher and campaigner based in Jerusalem for Amnesty International as a form of collective punishment for residents.28 As a result of these the village was essentially gridlocked with three checkpoints stopping any ease of access in or out of the village.29 To this day there is still the threat of checkpoints being placed on the main entrances of the village, at any point.30

iii. Nowhere to build: National Parks Finally, as Issawiyans seek to expand, they face more obstacles; the most suitable locations for expansion are in the process of being expropriated. To the east of Issawiya are the slopes of Mount Scopus where there are plans for a national park, and to the West an area that is looking to be made into a landfill site. Issawiya has been fortunate enough to be supported by local urban planning NGO, Bimkom, as well as other supporters, who have been able, with the help of the residents, to draw up plans and offer legal opposition for the creation of the national park. In 2014, Bimkom and the Issawiya Local Community group were successful in preventing the approval of this site and the plans for this national

26 Rami Nasrallah, The Wall, p.23.

27 Bimkom, Survey of the Palestinian Neighbourhoods of East Jerusalem: Planning Problems and Opporunities (Jerusalem: 2013), p.26 <http://bimkom.org/eng/wp-content/uploads/survey-of-the-Palestinian-neighborhoods-ofEast-Jerusalem.pdf> [accessed 3 February 2019]; ARIJ, ‘Isawiya Town Profile, pp.8, 22.

28 Jacob Burns, ‘What I saw in Issawiya was the collective punishment of thousands of people’, Amnesty International, 21 October 2015 <https://www.amnesty.org/en/latest/news/2015/10/what-i-saw-in-issawiya-wasthe-collective-punishment-of-thousands-of-people/> [Accessed: 5 February].

29 Esther Mack, ‘Watching Checkpoints’, All That’s Left Collective Blog, 18 November 2015 <https:// allthatsleftcollective.com/2015/11/18/20151115watching-checkpoints/> [accessed February 6 2019].

30 Nir Hasson, ‘The Murky Relations between the Hebrew University and its Neighbouring Palestinian Village’, April 12 2016 <https://www.haaretz.com/israel-news/.premium.MAGAZINE-the-view-from-the-other-side-ofmount-scopus-1.5428825> [Accessed: 2 February].

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park have been required to be redrawn and frozen, however not halted. 31 The threat of losing this land remains, and whilst it sits in a limbo without state intervention, this will be one of many battles for Issawiyans.

In 2015 a Landfill site was approved by the municipality in the Eastern area between the main road and the wall.32 Again this area could be used for growth, and combined with the national park area removed any space for expansion from this area. Finally, Issawiyans cannot build upwards due to ‘height limitations’ on buildings enforced from an IDF military base on the top of Mount Scopus.33

Concluding Remarks In East Jerusalem, Issawiyans are not unique in their plight. Issawiya, however, is unique geographically and in the specific instances where Israeli policy has embodied itself. Fiftytwo years after the annexation of East Jerusalem, Issawiya, like most of East Jerusalem, is yet to find any equality of infrastructure and basic services with its neighbours in West Jerusalem. Suffering from deprivation, over-population and a lack of security regarding residency, East Jerusalemites face the brunt of catastrophic policies which actively seek a Jewish majority. Today, the municipality’s attempts to maintain this balance through the weakening and undermining of the Palestinian presence in East Jerusalem is conducive to only the undermining of the human rights of East Jerusalemites.

In order to understand the difficulties faced by East Jerusalemites the case-study of Issawiya offers us the archetypical means through which Israel responds to the demographic concerns raised by the annexation of 1967. Yet to be relegated to history, Israel’s annexation of East Jerusalem is a complex and living issue which defines, shapes and characterises the lives of the Arab residents of East Jerusalem. Left unresolved, the issues from the annexation have resulted in a policy of systemic discrimination where human beings’ existences are marked by structural oppression and a civil status unequal to that of their Israeli peers. Whilst Israel seeks to disseminate the image of a modern and Western society in contrast to its Middle Eastern neighbours, and Jerusalem seeks an image of the harmonious convergence point of the three monotheistic religions, the reality offers a significantly contrasting picture.

Recent moves from the Knesset to begin engineering the demographics of Jerusalem leave the future for East Jerusalemites and Issawiyans even more unclear. And whilst peace talks have made no progress in the last decade, perhaps the time has come to move beyond international condemnation of Israel and to international action; action which requires Israel to address the Palestinians between borders and to resolve the issues raised from the Annexation, which, unlike Issawiyans, Israel has been privileged enough to leave unaddressed for the last fifty-two years.

31 Bimkom, Historic Decision to Freeze Controversial National Park Plan (2014) <http://bimkom.org/eng/wpcontent/uploads/Controversial-National-Park-Plan_historic-decision.pdf>; Ir Amim and Bimkom, Deliberately Planned: A Policy to Thwart Planning in the Palestinian Neighborhoods of Jerusalem, (2017), p.24 <http://www. ir-amim.org.il/sites/default/files/Deliberately%20Planned.pdf> [Accessed: 5 February 2019].

32 Ir Amim, Planning, Building and Settlements in East Jerusalem: 2015 Year End Review (2016), p.15 <http:// www.ir-amim.org.il/sites/default/files/Building%20and%20Construction%20Report%202015_0.pdf> [Accessed: 9 February 2019].

33 Bimkom, Survey of the Palestinian Neighbourhoods of East Jerusalem, p.26.

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Bibliography The Applied Research Institute: Jerusalem, Isawiya Town Profile (2012) <http://vprofile. arij.org/jerusalem/pdfs/vprofile/isawyieh.pdf> [Accessed: 7 February 2019] Association for Civil Rights in Israel, East Jerusalem: Facts and Figures 2017 (2017), p.1 <https://law.acri.org.il//en/wp-content/uploads/2017/05/Facts-and-Figures-2017-1.pdf> [accessed 3 February] Bimkom, Historic Decision to Freeze Controversial National Park Plan (2014) <http:// bimkom.org/eng/wp-content/uploads/Controversial-National-Park-Plan_historicdecision.pdf> Bimkom, Survey of the Palestinian Neighbourhoods of East Jerusalem: Planning Problems and Opportunities (Jerusalem: 2013), <http://bimkom.org/eng/wp-content/ uploads/survey-of-the-Palestinian-neighborhoods-of-East-Jerusalem.pdf> [Accessed: 3 February 2019] Bimkom, Trapped by Planning: Israeli Policy, Planning and Development in the Palestinian Neighbourhoods of East Jerusalem (Jerusalem, 2014), <http://bimkom.org/eng/wpcontent/uploads/TrappedbyPlanning.pdf> [Accessed: 5 February 2019] Breger, Marshall, ‘Understanding Jerusalem’, Middle East Quarterly, 4.1 (1997), <https:// www.meforum.org/343/understanding-jerusalem> [Accessed: 4 February 2019] Burns, Jacob, ‘What I saw in Issawiya was the collective punishment of thousands of people’, Amnesty International, 21 October 2015, <https://www.amnesty.org/en/latest/ news/2015/10/what-i-saw-in-issawiya-was-the-collective-punishment-of-thousands-ofpeople/> [Accessed: 5 February] Cattan, Henry, Palestine, the Arabs and Israel: The Search for Justice (Oxford: Clarendon Press, 1990) Chiodelli, Francesco, ‘Planning illegality: The roots of unauthorised housing in Arab East Jerusalem’, Cities, 29 (2012), 99-106 Hasson, Nir, ‘The Murky Relations between the Hebrew University and its Neighbouring Palestinian Village’, Haaretz, April 12 2016 <https://www.haaretz.com/israel-news/. premium.MAGAZINE-the-view-from-the-other-side-of-mount-scopus-1.5428825> [accessed 2 February] Herzog, Chaim, The Arab-Israeli Wars: War and Peace in the Middle East (London: Arms and Armour Press, 1982) Hulme, David, Identity, Ideology and the Future of Jerusalem (New York: Palgrave Macmillan, 2006)

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Ir Amim, Bimkom, Deliberately Planned: A Policy to Thwart Planning in the Palestinian Neighborhoods of Jerusalem (2017) <http://www.ir-amim.org.il/sites/default/files/ Deliberately%20Planned.pdf> [Accessed: 5 February 2019] Ir Amim, Permanent Residency: A Temporary Status set in Stone (2012) <http://www.iramim.org.il/sites/default/files/permanent%20residency.pdf> [Accessed: 3 February 2019] Ir Amim, Planning, Building and Settlements in East Jerusalem: 2015 Year End Review (2016) Ir Amim, Permanent Residency: A Temporary Status set in Stone (2012) <http://www. ir-amim.org.il/sites/default/files/Building%20and%20Construction%20Report%202015_0. pdf> [Accessed: 9 February 2019] Israel Knesset, Basic Law: Jerusalem, Capital of Israel (1967) <https://www.knesset.gov.il/ laws/special/eng/basic10_eng.htm> [Accessed: 5 February 2019] Israeli, Raphael, Jerusalem Divided: The Armistice Regime 1949-67 (London: Frank Cass, 2002) Lieber, Dov, ‘Israel almost entirely halts citizenship approvals for East Jerusalemites’, The Times of Israel, 26 September 2016, <https://www.timesofisrael.com/israel-almostentirely-halts-citizenship-approvals-for-east-jerusalemites> [Accessed: 6 February 2019] Mack, Esther, ‘Watching Checkpoints’, All That’s Left Collective Blog, 18 November 2015, <https://allthatsleftcollective.com/2015/11/18/20151115watching-checkpoints/> [Accessed: February 6 2019] Morris, Benny, 1948: A History of the First Arab-Israeli War (London: Yale University Press, 2008) Nasrallah, Rami, ‘The Jerusalem Separation Wall: Facts and Political Implications’ in The Wall: Fragmenting the Palestinian Fabric in Jerusalem, ed. Robert D. Brooks (Jerusalem: International Peace and Cooperation Center Jerusalem, 2007) 13-27 Rieker, Martina and Habash, Dalia, ‘The Unmasking of Palestinian Neighbourhoods in Jerusalem: ‘French Hill’ in Focus’, Jerusalem Quarterly, 3 (1999), 35-39 <https://www. palestine-studies.org/sites/default/files/jq-articles/3_Unmaking_1.pdf> [Accessed: 6 February 2019] Roberts, Nicholas, ‘Dividing Jerusalem: British Urban Planning in the Holy City’, Journal of Palestine Studies, 42.2 (2013), 7-26 Tamimi, Tamara Tawfiq, ‘Revocation of Residency of Palestinians in Jerusalem’, Jerusalem Quarterly, 72 (2017), 37-48

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United Nation Office for the Coordination of Humanitarian Affairs occupied Palestinian Territories, The Planning Crisis in East Jerusalem: Understanding the Phenomenon of Illegal Construction (Jerusalem: UNOCHA, 2009) United Nations General Assembly, Resolution 181/2: Future Government of Palestine, 27 November 1947 <https://unispal.un.org/unispal> [Accessed: 8 February 2019]

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The Hijras of India: Colonial Epistemology, the â&#x20AC;&#x2DC;Deviantâ&#x20AC;&#x2122; Native Sexuality and Postcolonial Legacies Sara Green

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Abstract This essay will explore the relationship between British colonialism in India and the formalisation and staticisation of a binary view of gender and sexuality. The Hijra are a historical ‘third gender’ category of the Indian subcontinent; referred to variably in colonial semantics as ‘eunuch’ or ‘hermaphrodite’, and more recently in relation to identifiers such as transgenderism or gender-nonconformity. Their liminal and fluid relationship to markers of ‘masculine’ and ‘feminine’ are viewed in both colonial and postcolonial contexts as having a destabilising effect on gender, biological sex, family and kinship. Using this case study within the framework of both Subaltern historiography and Postcolonial scholarship illuminates the contingency of colonialism on alienating the ‘deviant’ sexuality of the colonised, and how this permeates into the use of heteronormativity to construct a national ‘family’ in the postcolonial nations of India, Pakistan and Bangladesh. This highlights the merit of both a Subaltern focus on marginal ‘subjugated knowledge’ and Homi Bhabha’s concept of hybridity as negotiating the postcolonial condition; which may, in turn, aid in rearticulating or ‘queering’ collective memory, thus deconstructing the prescribed rigidity of gender and sexual binaries. In light of contemporary efforts by Hijra communities to advocate for their rights regarding issues such as sexual health and social inclusion, this deconstructivist approach could have profound implications for other binaristic modes of thought, such as the coloniality of ‘border thinking’ that undoubtedly continues to permeate the region through the conflict in Kashmir.1

The relationship between gender and coloniality has produced a prolific body of literature that has not only challenged hegemonic narratives of colonial histories, but offers a framework with which to approach contemporary postcolonial dynamics. This essay’s methodology will proceed from a culturo-historical perspective in situating the Hijra of the Indian Subcontinent in its precolonial and British colonial contexts. It will follow Subaltern historiographical lines of enquiry in questioning the location of ‘objective knowledge’ in the colonial archive, and attempt to synthesize sources of ‘subjugated knowledge’ into the analysis; not simply as a means to redress the hegemony of colonial epistemology and enabling the marginalised Subaltern to ‘speak,’ but to highlight the didactic and intertextual relationship between the coloniser and the colonized.2 Exploring the colonial marginalisation of ‘deviant’ bodies such as the Hijra and other queer, non-normative groups enables the emergence of a critical postcolonial analysis of the marginal status of ‘queerness’ in the postcolonial states of India, Pakistan and Bangladesh.

Within the context of the British colonial presence in India, Subaltern historiography has illuminated the deployment of masculinity and femininity as a means to perpetuate colonialism.3 Most seminal of these works is Gayatri Chakravorty Spivak’s analysis of Sati, the practice of ritual widow immolation, in late colonial India. She asserts that the moral outrage of colonial officials at the practice covertly perpetuated a chauvinistic narrative of ‘white men saving brown women from brown men.’ 4 This narrative had its pragmatic 1 Ramón Grosfoguel, ‘World-Systems Analysis in the Context of Transmodernity, Border Thinking, and Global Coloniality’, Review (Fernand Braudel Center), 29.2 (2006), pp.177-179.

2 Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak? Speculations on Widow Sacrifice’, Wedge, (1985) 120130, pp.120, 129.

3 Gyan Prakash, ‘Postcolonial Criticism and Indian Historiography’, Social Text, 31/32 (1992) 8-19.

4 Spivak, ‘Can the Subaltern Speak?’ , p.129.

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uses as a constructed reason to control, surveil and intrude on Indian private and domestic life.5 Yet its deeply ideological, and gendered narrative meant that it also represented both the hyper-masculine virility and heroism of the white coloniser, juxtaposed against the emasculated weakness, primitivism and moral adolescence of the Indian man.6 The way in which gender was used in the British colonial project was not just to racialise and infantilise the colonised subject, but also to impart rigid binary structures onto Indian society as part of the modernist, universalist efforts to ‘civilise’ India.7 Just as the colonial census made caste identities static and immutable, colonial birthing practices made biological sex a singular marker of a previously fluid conceptualisation of gender.8 Little explored in the discourse on coloniality and gender are the ‘Hijra’; a loosely defined ‘third gender’ category whose presence in the Indian subcontinent dates as far back as 3,000 years.9 Discourses on the ‘coloniality of gender,’ as outlined by philosopher María Lugones, identify the imposition of dualistic gender norms as intrinsic to colonial projects, through processes of epistemological violence that erase indigenous notions of gender.10 This theoretical framework will be deployed in this essay to explore the relationship between the marginality of the Hijras and the colonial legacies of the British in India; and indeed, how postcolonial and even ‘decolonial’ approaches may conceptualise an alternative history and narrative of ‘queerness’ that can be pragmatically useful in the context of universal human rights and political visibility.

Whilst this essay will draw heavily upon the theoretical and semantic framework of queer theory, it is necessary to acknowledge the problematic nature of deploying these essentially ‘non-native’ concepts in an analysis of South Asia. Raewyn Connell has highlighted the normative academic assumption that the Global South can produce ‘data’ but not ‘theory [...] paradigms of explanation, [or] epistemology’; by this measure, it can reasonably be characterised as an Orientalist dilemma of viewing the ‘East’ through the lens of the ‘West.’11 Whilst redressing this assumption lies outside the scope of this essay, the formulation of alternative theories of gender and ‘queerness,’ with localised cultural specificity in mind, is essential in transcending this ‘shared theoretical language and its Eurocentric epistemology’ and thus ‘decolonising’ the scholarship.12 In the scope of this essay, ‘queer’ will be used to denote groups that fall

5 Lata Mani, Contentious Traditions: The Debate on Sati in Colonial India, 1780–1833 (Berkeley, CA: University of California Press, 1998).

6 Ania Loomba, ‘Dead Women Tell No Tales: Issues of Female Subjectivity, Subaltern Agency and Tradition in Colonial and Post-Colonial Writings on Widow Immolation in India’, History Workshop Journal, 36.1 (1993) 209-227, p. 210.

7 Susan Bayly, ‘Caste and ‘race’ in the colonial ethnography of India’, in The Concept of Race in South Asia, ed. by Peter Robb (Delhi: Oxford University Press, 1999), 165-218, p.214.

8 Marie Draz, ‘Born This Way? Time and the Coloniality of Gender’, The Journal of Speculative Philosophy, 31.3 (2017) 372-384, p.375.

9 Shanaz Khan, ‘Khwaja Sara, Hijra, and the Struggle for Rights in Pakistan’, Modern Asian Studies, 51:5 (2017) 1283-1310 (p. 1285).

10 María Lugones, ‘Heterosexualism and the Colonial / Modern Gender System’, Hypatia, 22:1 (2007)186-209.

11 Raewyn Connell, ‘Rethinking Gender from the South’, Feminist Studies, 40.3 (2014), 518-539, p. 520.

12 Connell, ‘Rethinking Gender’, p.522. See for further discussion: Kira Hall, ‘‘It’s a hijra’! Queer linguistics revisited’, Discourse & Society, 24.5 (2013) 634-642; For discussion of Orientalism, see E.W. Said, Orientalism (London: Routledge and Kegan Paul, 1978).

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in the parameters of ‘deviant sexuality,’ in colonial terms, and those who are continually perceived to destabilise or ‘trouble’ dominant modes of understanding gender, sexuality, religion, family, and community.13 Histories of ‘traditional’ societies in the Global South are often assumed to have a homogenous and rigid hetero-patriarchal nature; this is informed by a tendency in ‘Western’ development discourse towards both universalist and even paternalist, ‘saviour’ approaches.14 However, a historical examination of attitudes towards gender and sexuality in precolonial Indian societies reveals a more nuanced reality.The popularity of the ancient Kamasutra text in the Mughal Empire, whose courtly class ‘commissioned lavishly illustrated Persian and Sanskrit manuscripts,’ reveals an overt exploration of both same-sex and ‘third gender’ identities, which are included in the text through the notion of tritiya prakriti, or ‘third nature.’15 Whilst this ‘third nature’ by no means rivalled the normativity of heterosexuality, it was allocated specific spaces in which to exist; Hijras often held influence within courtly culture, were granted land deeds and cash stipends, and occupied a significant cultural role as badhai dance performers at celebrations marking the birth of a male child.16 It is important to note that illuminating cases in which Hijras occupied privileged social position is by no means an attempt at ‘recovering’ a past onto which we can project, or imagine, a social reality we want for our own time; indeed, such a process is, as Tom Lloyd argues, profoundly ‘un-historical.’17 It merely illuminates an explicit space, both cultural and legal –as Hijras were granted codified begging rights –that gender non-conformity was allowed to occupy in precolonial India, a space that would become eroded and pushed further to the margins under British colonialism.18 The colonial archive has been viewed in orthodox historiography as ‘a production of history’s truth-effect,’ and indeed the dichotomy this formed between the rigid,‘objective’ archival knowledge and the porous, emotional, and subjective oral or popular knowledge can be interpreted as a somewhat gendered binary itself.19 Critical theorists such as Jacques Derrida and feminist scholars alike have challenged the canonical, formal archive as a singular centre of knowledge, pointing out the insufficiency of relying solely on these sources for writing histories of gender and sexuality; not least because they served as a reinforcement and reproduction of Victorian ‘chaste’ morality.20 Thus, it is difficult to fully understand how Hijra communities mitigated and negotiated their identity under this colonial hegemony; indeed, scholars of the Subaltern Studies Group propose a redefinition of the parameters of a national ‘archive’ to integrate these marginal experiences, thus ‘queering’ the narrative itself rather than simply illuminating a ‘forgotten’ counter narrative.21 What can be gleaned from the late colonial archives is an appropriation by the British of instances they perceived as sexual ‘obscenity’ in Indian society, to perpetuate 13 Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990).

14 Connell, ‘Rethinking Gender’, p.531.

15 Wendy Doniger, Redeeming the Kamasutra (Oxford: Oxford University Press, 2016), pp.12, 114-116.

16 Khan, ‘Khwaja Sara, Hijra’, p.1286.

18 Khan, ‘Khwaja Sara, Hijra’, p.1286.

19 Charu Gupta, ‘Writing Sex and Sexuality: Archives of Colonial North India’, Journal of Women’s History, 23.4 (2011), p.16.

20 Gupta, ‘Writing Sex and Sexuality’, p.13.

21 Anjali Arondekar, ‘Without a Trace: Sexuality and the Colonial Archive’, Journal of the History of Sexuality, 14:½ (2005) pp.11, 13.

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a dichotomy of the ‘polluted’ and ‘deviant’ colonized against the virtue of the white colonizers.

The latter thus positioned themselves as naturally suited to a ruling position. This moral dichotomy is typical of late nineteenth century colonial discourse and is contextualised by a shift in moral discourses in Britain.Whilst eighteenth century colonial rule was not a ‘Golden Age’ of cosmopolitan Anglo-Indian understanding, it did nonetheless operate on a system of collaboration with local power that made certain ‘oversights’ or ‘allowances’ ro id faucibus nisl. Quam nulla porttitor massa id neque for local customs which ran counter to British moral values.22 In the transition towards aliquam vestibulum.

Vestibulum lorem risus ultricies a universalist, rigid Victorian morality which followed, thissed ‘moral relativism’ was called into question and a tangible, resolute raison d’être of British colonial exploits needed tristique. Est ante in nibh mauris cursus mattis molestie a articulating.23 This became what Rudyard Kipling later characterised as the ‘White Man’s iaculis. Id aliquet lectus proin nibh. Urna nunc id cursus Burden’- to ‘civilise’ the morally adolescent ‘native’- meaning that the space occupied by metus aliquam. those of ‘third nature,’ or Hijras, came under threat.24 ‘Obscene acts and songs’ were criminalised in 1860, alongside any sexual intercourse the state considered ‘against the order of nature’. This threatened the Hijra’s ritual role at birth celebrations, where their Fermentum et sollicitudin ac orci phasellus egestas. subversive and sexualised performance of femininity was often considered ‘obscene’ by 25 sit amet consectetur adipiscing elit duis Ipsum dolor British observers.

The Criminal Tribes Act of 1871 further subjected any ‘persons of the male sex who admit themselves,Eros or on medical clearly appear to be impotent’ tristique sollicitudin. donecinspection ac odio tempor.

Ipsum to registration, surveillance and control.26 This explicitly targeted Hijras with male sexual dolor sit amet consectetur adipiscing elit ut aliquam puanatomy who chose to undergo castration procedures, and further exemplifies the use Nam at lectus urna duis convallis convallis.

Porttitor of rus. medicine to enforce European epistemological understandings of sexuality and gender onrhoncus Indian society. dolor purus non. Justo nec ultrices dui sapien

eget mi. Porttitor eget dolor morbi non. Potenti nullam ac

In a plethora of colonial contexts, the application of modernist scientific methodologies vitae purus faucibus ornare suspendisse. totortor anthropological and sociological subjects served the purpose of Interdum creating a finite rationale for the colonisation of biologically ‘inferior’ peoples.27 This is typified by the posuere lorem ipsum dolor sit amet consectetur.

Egestas pseudoscientific theories of Social Darwinism and other modes of constructing and maecenas pharetra convallis posuere morbi leo urna. classifying racial categories; in an Indian context, this often appropriated the semantics of ‘pollution’ and ‘purity’ already existent in its Caste system.28 Gupta argues that the exclusion of Hijra neque ‘deviancy’ egestas intersects with the exclusion of Dalits (a low-caste group of Bibendum congue quisque egestas diam ‘untouchables’), and indeed the aforementioned Criminal Tribes Act was part of a longin arcu. Tempor orci dapibus ultrices in iaculis nunc sed term colonial campaign to perpetuate the myth of a ‘criminal caste’ which sought to augue lacus.

Faucibus interdum posuere lorem ipsum further control and marginalise nomadic, unsurveillable groups.29 Therefore, it is clear

dolor. Viverra tellus in hac habitasse platea dictumst vestibulum rhoncus. Vitae sapien pellentesque habitant 22 William Dalrymple, White Mughals (London, Penguin Books, 2002). tristique senectus et Hastings netus.

Atcited quis sedasvulpu23morbi The Impeachment of Governor General Warren is often in therisus historiography a watershed moment for ‘moral relativism.’ See: Edmund Burke, ‘Speeches in the Impeachment of Warren Hasting, Esquire, tate odio ut enim blandit.

Egestas sed sed risus pretium Late Governor-General of Bengal; Speech in ‘Opening the Impeachment’ (1788), in The Writings and Speeches of Edmund Burkevulputate (Boston: Little Brown, 1901),Vols 9-10. quam dignissim suspendisse in. Posuere ac 24 Rudyard Kipling, ‘The White Man’s Burden: The United States and the Philippine Islands’, New York Sun, 1899. consequat semper viverra. vel pharetra vel 25ut Government of Punjab, India, Indian Penal Code Act NoAt XLVvarius of 1860, 1860 <http://punjabrevenue.nic.in/ crime1.htm> [Accessed: 1 December 2018].

Cras semper auctor vitae tempus quam 26turpis.

British Library, Criminal Tribes Act XXVII, 1871,Vol.neque 8:42.

27pellentesque.

Rutledge M. Dennis, ‘Social Darwinism, Scientific Racism, and the Metaphysics of Race’, The Journal of Negro Education, 68.3 (1995), pp.243-252; Dennis’s study, in a similar vein to this essay, explores the colonial roots of scientific racism and the racialized ‘ideology’ of IQ testing and its implications for racial power relations in contemporary society, ever more relevant with the resurfacing of alt-right talking points of ‘race and IQ,’ which often operate under a similar pretense of pseudoacademic enquiry.

28 Bayly, ‘Caste and ‘race’ in the colonial ethnography’.

29 Lloyd, ‘Liminal Criminals’, p.232.

that these groups were targeted for their unknowability and their destabilisation of understandings of gender, caste and kinship; this was deeply problematic to the modernist, universalist colonial project of codifying and formalising these concepts into rigid binaries.

If we view coloniality not simply as a historical concept, contained within a finite period from invasion until independence, but as a socio-cultural concept, a way of knowing that continued to perpetuate itself beyond these parameters, then the rationale for the continued marginalisation of Hijra communities in the postcolonial state becomes clear.30 Indeed, theorists such as Chatterjee argue that the strength with which Victorian sexual morality was imposed upon India was so ‘compelling’ that natives could only ‘respond’ to the discourse, rather than ‘devise their own responses to sexuality.’31 If we view the colonial appropriation of gender norms solely through Spivak’s example of Sati, fomenting Indian and Pakistani nationalist discourse had a lot to ‘reclaim’; just as women’s bodies were the symbolic ‘conquest’ of India itself, nationalists thus re-appropriated Indian femininity by enshrining the reproducing mother as an allegory for the nation itself.32 Similarly, white masculinity in all its ‘neo-Spartan virility [...] an aggressive, muscular, chivalric model’ relied upon the emasculation of Indian men to function as both a bolstering of the white ego and a justification for British rule.33 In response, nationalists attempted to reclaim Indian masculinity with this same focus on heterosexuality; thus homosexuality and other queering practices, such as the Hijra’s deviation from and subversion of binary gender categories, were systematically alienated from Indian culture.34 This exemplifies Chatterjee’s argument about the deeply permeating nature of coloniality as a way of knowing; instead of formulating alternative modes of understanding gender, Indian elites continued to perpetuate this hetero-patriarchal model to which the performative, fluid and ambiguous Hijra body was the antithesis.

Hijra communities in the postcolonial states of India, Pakistan and Bangladesh have, in part as a result of this enforcement of a binary understanding of gender, been subject to social marginalisation. In Bangladesh, a Hijra’s experience of gender dysphoria or non-conformity affects their relationships at every stage in their early life, culminating in a complete exclusion from family life. Khan et al. produced a study on the social exclusion of the Hijra in Bangladesh, fueled by ‘non-recognition’ from a strict ‘male-female dichotomy’, in which one Hijra recalled: ‘When my father died I did not go to bury him If I had gone there, the relatives and others would not take part in the burial. The Imam would not conduct the lanaza (religious rite). I had very long hair, use to wear a lot of jewelry and saree, then my relatives told me “you are wearing gold

30 Paola Bacchetta, ‘Decolonial Praxis: Enabling Intranational and Queer Coalition Building’, Qui Parle, 18.2 (2010), 147-192, p.155.

31 See: Partha Chatterjee, Nationalist Thought in the Colonial World: A Derivative Discourse? (Delhi: Oxford University Press, 1986).

32 See, for using the ‘vulnerability’ of Hindu women to illuminate the barbarity of Hindu masculinity: Katherine Mayo, Mother India (New York: 1937).

33 Jesse Matz, ‘Masculinity Amalgamated: Colonialism, Homosexuality, and Forster’s Kipling’, Journal of Modern Literature, 30.3 (2007), 31-51, p.36.

34 See for an indigenous condemnation of homosexuality, which itself cause moral panic among Indian elites for even highlighting the explicit possibility of homosexuality: Pandey Becan Sharma, “Ugra,” Chaklet , 3rd edition (Calcutta, 1953).

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like women, you should not touch your father’s dead body.”’ 35 (My emphasis) This account exemplifies the lingering colonial semantics of ‘pollution’ and of gender deviancy ‘tainting’ traditional patriarchal structures, and how continues to permeate contemporary concepts of gender. Furthermore, it reveals not only a social disdain for the gender hybridity of Hijra identity, but also a religious ambiguity that has a further destabilising effect –especially in Pakistan where the Islamisation of family law allows little room for a sense of hybridity.36 Indeed, whilst identifying as Muslims and complying with Sharia regulations for both men and women, Hijras also derive their power and social legitimacy from the worship of the Hindu mother goddess, embodied in Urvasi and Mata Bahuchara.37 This hybrid religious position can even exclude Hijras from their own Islamic funeral rites and, especially if castrated, subject the deceased person’s body to ‘abuse and dishonour.’38 This is another instance in which the stark opposition of Islamic and Hindu practice can be traced to colonialism; Pandey argues that the deep sense of incompatibility and ethnic ‘strife’ of communalism was cultivated and exacerbated by the British in their accounts of popular uprisings to foster difference in an attempt at ‘divide-and-rule’ policy.39 Therefore, Hijras do not only represent a ‘troubling’ of modes of understanding gender, but also modes of understanding religious practice; whilst communal violence and perceived immutable differences between Hindus and Muslims does not have it’s absolute ‘roots’ in colonialism, it again reveals a pattern of exacerbation of difference by the British that permeates postcolonial social practices.40 Despite a recent increase of visibility of Hijras in local and state Indian politics, this group remains the ‘most excluded of the excluded.’41 This exclusion can be attributed the way in which their existence ‘troubles’ many fundamental modes of understanding the world; indeed, by living in ‘fictive familial relations whereby the guru (teacher) functions as the mother and the other chelas (students) as the sisters,’ their communities exist outside the modern national ‘family,’ thereby undermining it.42 Many postcolonial theorists have proposed approaches with which to fight the marginality and ‘subalternity’ of groups such as the Hijras; most recently, in acknowledgment of the deep permeation of coloniality as an epistemology imposed upon the psyche of colonized peoples, calls for a ‘decolonial’ approach have become prevalent.43 However, there is skepticism that this kind of approach implicitly requires a sense of precolonial historical ‘revivalism’, which in the case of the Hijras perhaps is unhelpful; their precolonial position as courtly influencers with grants of inheritable land lacks any real relevance or utility in the modern nation state.44 35 Sharful Islam Khan, Mohammed Iftekher Hussain, et al., ‘Living on the Extreme Margin: Social Exclusion of the Transgender Population (Hijra) in Bangladesh’, Journal of Health, Population and Nutrition, 27.4 (2009), 441-451, p.445.

36 Moeen Cheema, ‘Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law’, The American Journal of Comparative Law, 60.4 (2012), 875-917.

37 Claire Pamment, ‘Hijraism: Jostling for a Third Space in Pakistani Politics’, TDR, 54.2 (2010), 29-50, p.32.

38 Khan, Hussain et al, Living on the Extreme Margin’, p.447.

39 Gyanendra Pandey, The Construction of Communalism in Colonial North India (Delhi: Oxford University Press, 1992), p.26.

40 See Butler, Gender Trouble.

41 Khan, Hussain et al, ‘Living on the Extreme Margin’, p. 448.

42 Pamment, ‘Hijraism: Jostling for a Third Space’, p. 31.

43 See Bacchetta, ‘Decolonial Praxis’; Kiran Asher, ‘Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms’, Feminist Studies, 43.3 (2017), 512-524.

44 Khan, ‘Khwaja Sara, Hijra’, p.1286.

More relevant perhaps is a Subaltern historiographical focus on ‘subjugated knowledge’, not least to redress the hegemony of archival sources – but also, as mentioned in the previous remarks upon this essay’s methodology, to allow for the formulation of alternate and culturally specific theory and modes of interpreting ‘queerness.’45 This is especially relevant in a context where right-wing nationalists accuse queer identity itself of being a ‘Western’ ‘neoliberal’ imposition in South Asia; both ‘queering’ the historical canon and formulating localised queer theory would disprove this argument by highlighting the indisputable historical and cultural presence of ‘queerness’ in the region.46 However, the most resonant of postcolonial theories to the specific case of the Hijra is Homi Bhabha’s ‘Third Space,’ defined as a space in which to manage, negotiate and rearticulate the ‘postcolonial condition’ through innovative, binary-deconstructing practices. Indeed, the Hijra encapsulate a ‘hybrid’ deviation from traditional dichotomies, whilst their performances are often linked to parody, mimicry and subversion.47 Social perceptions of femininity are parodied and satirised in badhai dance by sexual innuendo and ‘burlesque enactments,’ whilst class differentiation is subverted by the status Hijras can attain as performers.48 Perhaps then, it is in the performing body, that a truly ‘postcolonial’ identity can be articulated; in this case, the Hijra, rather than being socially peripheral, should occupy a central place in the cultural narrative to exemplify how to mediate between and critique rigid constructs that are portrayed as absolute and immutable.49 This mediation between boundaries could be culturally useful for postcolonial societies still deliberating between markers of ‘coloniality’ and ‘indigeneity,’ of ‘tradition’ and ‘modernity.’

In conclusion, whilst this essay has demonstrated the contingency of rigid gender and sexual binary in South Asia on its colonial history, it does not necessarily find that a ‘decolonial’ approach is the most appropriate theory with which to bolster Hijra human rights activism in the postcolonial era. Indeed, whilst a revival of indigenous epistemology can potentially redress the epistemological violence of colonialism, it risks romanticising and appropriating a past, or heritage, that has little socio-political utility today. This does not mean a reassessment of historical method and collective memory is unimportant; indeed, the Subaltern Studies Group have highlighted the importance of negotiating hegemonic narratives in order for alternate Subaltern narratives to exist in the same space. Ultimately, this essay finds that the concept of the ‘Third Space’ is most politically useful in fighting the socially marginal position of Hijra communities; indeed, its innovative approach can potentially question the rigid boundaries of gender, sexuality, caste, class and kinship which have placed Hijras on the periphery. The performing body of the Hijras represent not only the embodiment of agency, but a site of exploring the liminality, nuances, complexities and ultimately arbitrariness of accepted social boundaries. This

45 Connell, ‘Rethinking Gender’, p.522.

46 Sri Craven, ‘Challenging Queer as “Neoliberal”: the Radical Politics of South Asian Diasporic Lesbian Representational Culture’, Journal of International Women’s Studies, 18.2 (2017), 45-58.

47 Homi Bhabha, The location of culture (New York: Routledge, 1994).

48 Pamment, ‘Hijraism: Jostling for a Third Space’, p.31.

49 See, on the subversive nature of the performing body: Maurice L. Hall, ‘The Postcolonial Caribbean as a Liminal Space: Authoring Other Modes of Contestation and Affirmation’, The Howard Journal of Communications, 18.1 (2007), 1-13.

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could have immense implications for other dualistic aspects of Indian, Pakistani and Bangladeshi societies that are still struggling with issues of communalism and religious tension, and the ‘border thinking’ that continues to fuel human rights abuses in Kashmir.

Ultimately, the inclusion of Hijra communities in mainstream cultural narratives would bolster the fight for universal human rights, queer-inclusive and accessible healthcare, and political visibility in the postcolonial states of India, Pakistan and Bangladesh.

Bibliography Arondekar, Anjali, ‘Without a Trace: Sexuality and the Colonial Archive’, Journal of the History of Sexuality, 14:½ (2005), 10-27 Asher, Kiran, ‘Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms’, Feminist Studies, 43.3 (2017), 512-524 Bacchetta, Paola, ‘Decolonial Praxis: Enabling Intranational and Queer Coalition Building’, Qui Parle, 18.2 (2010), 147-192 Bayly, Susan, ‘Caste and ‘race’ in the colonial ethnography of India’, in The Concept of Race in South Asia, ed. by Peter Robb (Delhi: Oxford University Press, 1999), 165-218 Bhabha, Homi, The location of culture (New York: Routledge, 1994) Arondekar, Anjali, ‘Without a Trace: Sexuality and the Colonial Archive’, Journal of the History of Sexuality, 14:½ (2005), 10-27 Asher, Kiran, ‘Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms’, Feminist Studies, 43.3 (2017), 512-524 Bacchetta, Paola, ‘Decolonial Praxis: Enabling Intranational and Queer Coalition Building’, Qui Parle, 18.2 (2010), 147-192 Bayly, Susan, ‘Caste and ‘race’ in the colonial ethnography of India’, in The Concept of Race in South Asia, ed. by Peter Robb (Delhi: Oxford University Press, 1999), 165-218 Bhabha, Homi, The location of culture (New York: Routledge, 1994) British Library, Criminal Tribes Act XXVII (1871),Vol. 8:42 Burke, Edmund:‘Speeches in the Impeachment of Warren Hasting, Esquire, Late GovernorGeneral of Bengal. Speech in Opening the Impeachment’ (1788), in The Writings and Speeches of Edmund Burke (Boston: Little Brown, 1901),Vols 9-10 Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990) Chatterjee, Partha, Nationalist Thought in the Colonial World: A Derivative Discourse?

(Delhi: Oxford University Press, 1986)

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Cheema, Moeen, ‘Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan’s Law’, The American Journal of Comparative Law, 60.4 (2012), 875-917 Connell, Raewyn, ‘Rethinking Gender from the South’, Feminist Studies, 40.3 (2014), 518539 Craven, Sri, ‘Challenging Queer as “Neoliberal”: the Radical Politics of South Asian Diasporic Lesbian Representational Culture’, Journal of International Women’s Studies, 18.2 (2017), 45-58 Dalrymple, William, White Mughals (London, Penguin Books, 2002) Draz, Marie, ‘Born This Way? Time and the Coloniality of Gender’, The Journal of Speculative Philosophy, 31.3 (2017), 372-384 Doniger, Wendy, Redeeming the Kamasutra (Oxford: Oxford University Press, 2016) Government of Punjab, India, Indian Penal Code Act No XLV of 1860 (1860): http:// punjabrevenue.nic.in/crime1.htm [Accessed: 1 December 2018] Grosfoguel, Ramón, ‘World-Systems Analysis in the Context of Transmodernity, Border Thinking, and Global Coloniality’, Review (Fernand Braudel Center), 29.2 (2006), 167-187 Gupta, Charu, ‘Writing Sex and Sexuality: Archives of Colonial North India’, Journal of Women’s History, 23.4 (2011), 12-35 Hall, Kira, ‘‘It’s a hijra’! Queer linguistics revisited’, Discourse & Society, 24.5 (2013), 634642 Hall, Maurice L, ‘The Postcolonial Caribbean as a Liminal Space: Authoring Other Modes of Contestation and Affirmation’, The Howard Journal of Communications, 18.1 (2007), 1-13 Khan, Shanaz, ‘Khwaja Sara, Hijra, and the Struggle for Rights in Pakistan’, Modern Asian Studies, 51.5 (2017), 1283-1310 Khan, Sharful Islam, Hussain,Mohammed Iftekher, et al., ‘Living on the Extreme Margin: Social Exclusion of the Transgender Population (Hijra) in Bangladesh’, Journal of Health, Population and Nutrition, 27.4 (2009), 441-451 Kipling, Rudyard, ‘The White Man’s Burden: The United States and the Philippine Islands’, New York Sun, 1899 Lloyd, T, ‘Liminal ‘Criminals’: Re-thinking Historiographies of, and through, the ‘Thuggee’ Phenomenon’, History Compass, 5.2 (2007), 362-374

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Loomba, Ania, ‘Dead Women Tell No Tales: Issues of Female Subjectivity, Subaltern Agency and Tradition in Colonial and Post-Colonial Writings on Widow Immolation in India’, History Workshop Journal, 36.1 (1993), 209-227 Lugones, María, ‘Heterosexualism and the Colonial / Modern Gender System’, Hypatia, 22.1 (2007), 186-209 Matz, Jesse, ‘Masculinity Amalgamated: Colonialism, Homosexuality, and Forster’s Kipling’ Journal of Modern Literature, 30.3 (2007), 31-51 Mayo, Katherine, Mother India (New York: 1937) Mani, Lata, Contentious Traditions: The Debate on Sati in Colonial India, 1780–1833 (Berkeley, CA: University of California Press, 1998) Pamment, Claire, ‘Hijraism: Jostling for a Third Space in Pakistani Politics’, TDR, 54.2 (2010), 29-50 Pandey, Gyanendra, The Construction of Communalism in Colonial North India (Dehli: Oxford University Press, 1992) Prakash, Gyan, ‘Postcolonial Criticism and Indian Historiography’, Social Text, 31/32 (1992), 8-19 Said, E.W., Orientalism (London: Routledge and Kegan Paul, 1978) Sharma, Pandey Becan, “Ugra”, Chaklet, 3rd edition (Calcutta, 1953) Spivak, Gayatri Chakravorty, ‘Can the Subaltern Speak? Speculations on Widow Sacrifice’, Wedge, (1985), 120-130

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Stranded at the Border: the Rohingya Crisis and the Responsibility to Protect Sophie de Groot

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Abstract The Rohingya Crisis, which has led to the displacement of over 700, 000 people, has become one of the most controversial issues in the international community. This essay will argue that the Responsibility to Protect doctrine, codified at the United Nations World Summit in 2005, which endeavours to protect civilians against widespread human rights violations in the form of mass atrocity crimes; has failed drastically to protect the Rohingya from appalling human rights abuse.The international community has repeatedly ignored the United Nations Toolkit designed to prevent mass atrocity crime, over prioritised the spread of democracy in Myanmar at the expense of human rights, and regional actors, namely Bangladesh, have actively further endangered the rights of refugees leaving Myanmar.

The Rohingya refugee crisis has been described as the ‘fastest growing crisis in the world’,1 with over 723,000 refugees estimated to have crossed the border into Bangladesh.2 Before using the Responsibility to Protect (R2P) framework to assess the success of the international response to what has now been classified as genocide by the United Nations in Myanmar, it is first important to establish what R2P success would look like.

This essay will determine success based on the 2009 United Nations General Assembly (UNGA) Report on the Implementation of R2P framework, which stresses the value of prevention above all other aspects of the R2P.3 Focusing on the prevention aspect of R2P is arguably the strongest indicator of success or failure because it is the ‘single most important dimension of R2P, [with] military intervention as a last resort’.4 In the case of the Rohingya, a Muslim ethnic group based in North-West Arakhine State in Myanmar,5 the international community has failed significantly in terms of its responsibility to protect in preventing mass atrocity crimes against the Rohingya. This essay will use the R2P framework to highlight that the international community failed, and are failing still, to protect the rights of the Rohingya. It will argue this based on 3 premises: firstly, the ‘toolkit’ for assessing countries at risk of perpetrating mass atrocity crimes created to help implement R2P was not used,6 despite several of the risk factors being clearly identifiable in Myanmar. Risk Factor 9 and 12 are discussed specifically in the essay, as these are the most prevalent in the case of Myanmar. Secondly, the over prioritisation of democratisation in Myanmar by Western states, despite increasing concerns being raised by transnational organisations such as Amnesty International about the state of human rights abuses towards the Rohingya. Finally, this highlights the blame apportioned to states in the region, such as Bangladesh, who have arguably contributed to violations 1 BBC News, ‘Myanmar Rohingya: What You Need to Know About the Crisis’, 24 April, <https://www.bbc.co.uk/ news/world-asia-41566561> [Accessed: 16/12/18].

2 UN News, ‘Myanmar Military Leaders Must Face Genocide Charges’, 27 August 2018, <https://news.un.org/en/ story/2018/08/1017802> [Accessed: 18/12/18].

3 United Nations General Assembly, Implementing the Responsibility to Protect: Report of the Secretary General (2009) <http://responsibilitytoprotect.org/implementing%20the%20rtop.pdf> [Accessed: 14/12/18].

4 Lindsey Kingston, ‘Protecting the World’s Most Persecuted: the Responsibility to Protect and Burma’s Rohingya Minority’, International Journal of Human Rights, 19.8 (2015), 1163-1175, p. 1164.

5 Elliot Prasse-Freeman, ‘The Rohingya Crisis’, Anthropology Today, 33.6 (2017), p. 1-2.

6 UN Office of the Special Advisors on the Prevention of Genocide and the R2P, Framework of Analysis for Atrocity Crimes: a Tool for Prevention (2014), <https://www.un.org/en/genocideprevention/documents/about-us/ Doc.3_Framework%20of%20Analysis%20for%20Atrocity%20Crimes_EN.pdf> [Accessed: 14/12/18].

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of refugees’ human rights. The first argument suggesting that R2P has failed to prevent the Rohingya crisis in Myanmar is the lack of application of the framework identifying states at risk of perpetrating mass atrocity crimes against their populations, despite widely publicised cases of human rights abuse against the Rohingya. In 2014 the UN report outlining a framework for analysis of states at risk of perpetrating mass atrocity crimes was published, highlighting 14 risk factors (8 common, 6 specific) in order to ‘serve as a working tool for the assessment of the risk of atrocity crimes in all parts of the world’.7 This has evidently not been utilised in the case of the Rohingya in Myanmar.

Risk Factor 9 on the report identifies ‘past or present serious discrimination…along national, ethnical, racial or religious lines…and the denial of the existence of protected groups’ as a specific risk that could be indicative a state will commit atrocity crimes.8 In the case of Myanmar, this has been occurring for decades. The Rohingya have been expunged several times throughout the 20th century, in the 1940s, 1978, 1990s and 2012.9 The first notable incidence of legal discrimination occurred as early as 1982, in which the Rohingya were denied citizenship on the basis they were ‘ethnically foreign’.10 Whilst it could be argued that the fact that such examples of discrimination preceded R2P, the historic abuse of a population by a state is still clearly indicative that Myanmar had the potential to commit atrocity crimes. This point is further reinforced by the continuation of such discrimination since the adoption of the R2P. For example, in the first census carried out in 3 decades in 2014, it required ‘Rohingya individuals who wished to be counted to register as Bengalis’.11 This clearly demonstrates the denial of existence of protected groups identified as a risk in the UN framework for analysis, yet the international community’s response has been largely muted.

The EU, for example, upheld the reversal of economic sanctions on Myanmar in 2013, not wishing to upset the political reforms taking place since 2011.12 This is despite the state clearly failing to fulfil its commitment to Pillar 1 of the R2P, the protection of its populations. Not only does this highlight the ignorance of the EU in assisting Myanmar to end ethnic discrimination against Myanmar, it also signifies the unwillingness across the international community to commit to R2P in the case of ethnic and religious conflicts, due to the often volatile nature of such disputes. Additionally, this shows how EU policy on Myanmar has been “more reactive than carefully planned and strategized”,13 a fundamental flaw with the implementation of preventing the situation in Myanmar. It is not possible to prevent further atrocity crime if international organisations, such as the EU, are routinely behaving in a reactive way towards states at risk of committing atrocity crime, rather than using preventative measures to halt the progression of states from 7 Adama Dieng and Jennifer Welsh, ‘Assessing the Risk of Atrocity Crimes’, Genocide Studies and Prevention, 9.3 (2016), p.4.

8 UN Office of the Special Advisors on the Prevention of Genocide and the R2P, ‘Framework of Analysis for Atrocity Crimes: a Tool for Prevention’ (2014), p.18.

9 Elliot Prasse-Freeman, ‘The Rohingya Crisis’, Anthropology Today, 33.6 (2017), p. 2. 10 Human Rights Watch, ‘Discrimination in Arakan’ (2000) <https://www.hrw.org/reports/2000/burma/burm005-02.htm> [Accessed: 16/12/18].

11 Katherine Southwick, ‘Preventing Mass Atrocities Against the Stateless Rohingya in Myanmar: a Call for Solutions’, Journal of International Affairs, 68.2(2015), p.140.

12 Wooyeal Paik, ‘Domestic Politics, Regional Integration, and Human Rights: Interactions among Myanmar, ASEAN and EU’, Asia Europe Journal’, 14.4 (2016).

13 Jorn Dosch and Jatswan Sidhu, ‘The EU’s Myanmar Policy: Focused or Directionless?’, Journal of Current Southeast Asian Affairs, 34.2 (2015), p.85.

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committing small scale human rights abuse to full scale mass violence. If prevention is only used on a reactionary basis then it is arguably already too late to stop mass violence, which has clearly been the case in relation to the Rohingya.

Risk Factor 12 of the UN Report can also be applied to Myanmar, which identifies states where the government shows ‘signs of a plan or policy to attack any civilian population’.14 This has been highly evident in Myanmar, where ‘government approved operations cleared at least 55 Rohingya majority villages and 3 townships in Northern Rakhine State’.15 A study of the destruction, predominantly through burning down buildings, after violence between Rohingya and non-Rohingya populations erupted, found that 3672 of the 4522 buildings destroyed as of July 2012 were inhabited by the Rohingya.16 The response of the international community to the deliberate presence of the 12th specific risk factor identified in the UN Report has been notably weak. Resolution 223 of the UNGA, created in response to the violence occurring in Rakhine State “[expressed] concern about the situation of the Rohingya” and “[urged] the government to take action to bring about an improvement in their situation”.17 Although this shows the General Assembly acknowledging the responsibility of the Myanmar government to protect the Rohingya, the resolution highlights the total failure of the international community in preventing the situation from deteriorating further, and therefore the failure of R2P to act successfully in preventing further violence against the Rohingya.

The presence of ‘a policy to attack any civilian population’ can also be found in the statements from doctors, war surgeons, gynaecologists and medical NGOs ‘that they are increasingly seeing rape related injuries’ among Rohingya women and children.18 Not only does this illustrate, once again, the presence of Risk Factor 12 in Myanmar; this can also be linked to UNSC Resolution 1888, which demands all parties of conflict to protect civilians from sexual violence.19 Sexual violence is just one example of crimes against humanity identified in Article 7 of the Rome Statute,20 which then raises the question of why the R2P was not invoked when there are clear reports of at least one of the four atrocity crimes being committed. However, whilst a United Nations Peacebuilding Fund Report states that as of 2016 $7.7 million has been given to Myanmar, only since 2015 has this been used to create the Centre for Diversity and National Harmony, to ‘focus on early warning work and social research’.21 This is an indicator that efforts to promote

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14 UN Office of the Special Advisors on the Prevention of Genocide and the R2P, ‘Framework of Analysis for Atrocity Crimes: a Tool for Prevention’ (2014), p.18.

15 Ken Maclean, ‘The Rohingya Crisis and the Practices of Erasure’, Journal of Genocide Research, 1.1 (2018), 1-14, p.1.

16 Nagamjahao Kipgen ‘Conflict in the Rakhine State in Myanmar: Rohingya Muslims’ Conundrum’, Journal of Muslim Minority Affairs, 33.2 (2013), p. 302.

16 Nagamjahao Kipgen ‘Conflict in the Rakhine State in Myanmar: Rohingya Muslims’ Conundrum’, Journal of Muslim Minority Affairs, 33.2 (2013), p. 302.

17 United Nations General Assembly, A/RES/66/223, 66/223 Towards Global Partnerships (2011) <https://www. unescwa.org/sites/www.unescwa.org/files/un_resolutions/a_res_66_223_e.pdf > [Accessed: 16/12/18], p. 3.

18 UN Office of the Special Advisors on the Prevention of Genocide and the R2P, ‘Framework of Analysis for Atrocity Crimes: a Tool for Prevention’, (2014), p.19; Susan Hutchinson, ‘Gendered Insecurity in the Rohingya Crisis’, Australian Journal of International Affairs, 72.1 (2018), p.3.

19 United Nations Security Council, S/RES/1888, Resolution 1888 (2009) <http://unscr.com/en/resolutions/ doc/1888> [Accessed: 17/12/18], p.16.

20 International Criminal Court, ‘Rome Statute of the International Criminal Court’ (1998), p.3.

21 United Nations Peacebuilding Fund, Myanmar: Summary (2016) <http://www.unpbf.org/> [Accessed: 17/12/18].

human rights in Myanmar have been fundamentally shallow and certainly far too late, signifying the failure of R2P in the case of Myanmar. Overall this could be because, despite ‘UN special rapporteurs [reporting] consistently on the violence against the Rohingya’,22 there were wide disparities in ‘generating the will and capacity to respond effectively’.23 This is evidenced by both weak United Nations responses to incidences in both violation of the risk factor toolkit and where clear crimes against humanity are taking place. To some extent, this suggests R2P was destined to be a failure in the first place, because as a concept it is so dependent on the political will of both the host state and the international community to prevent mass atrocities from occurring.

This argument is further reinforced by the rejection of a proposed US and UK draft resolution for the UNSC to pressure Myanmar to release political prisoners,24 that had spoken publicly against the suffering of the Rohingya by other members of the Security Council, such as China, who have a political stake in the country.25 This signifies how in the case of Myanmar, despite clear risk factors being identifiable in the actions committed against the Rohingya, and strong evidence indicating that mass atrocity crimes were impending, the Responsibility to Protect manifestly failed to prevent the genocide of the Rohingya by the Myanmar government. Therefore, the lack of use of the toolkit for prevention to identify clear risks that the Rohingya situation was about to escalate into mass atrocity crimes highlights the failure of R2P in Myanmar. Furthermore, the fixation of the international community on the promotion of democracy in Myanmar illustrates not only the manifest failure of R2P, but also the shallow commitment to humanitarian intervention, suggesting on a wider basis that R2P has not yet become an internalised norm among the international community.

One of the strongest arguments that R2P has failed in the case of Myanmar is the case to be made for the over focus on the democratisation of Myanmar, with the misguided belief by the international community that ‘peaceful democratisation in Myanmar can pave the way for a durable solution to the Rohingya problem’.26 A House of Commons Foreign Affairs Committee looking at the failure of the UK to prevent the genocide in Myanmar stated that the UK government had ‘focused on the so called democratic transition in the country at the expense of other issues’, which then ultimately sent ‘a signal to the government in Burma that [they] were prepared to compromise on human rights when it came to the Rohingya’.27Another key player in pushing for democratic transition in Myanmar has been the USA, which was the largest donator to the democratisation project, giving $18 million in the run up to the 2015 elections.28 The tendency of the 22 Alireza Arashpuor and Alireza Roustaei, ‘the investigation into crimes committed against Myanmar’s Rohingya and the invoke necessity to ‘the theory of the responsibility to protect’, Juridical Tribune, 6.2 (2016), p.384.

23 Edward Luck, ‘The Responsibility to Protect: Growing Pains or Early Promise?’, Ethics and International

Affairs, 24.4 (2010), p.358.

24 Ren Xiao, ‘Positioning Norm, Principle and Interest in Chinese Foreign Policy- the Case of the Myanmar Issue’, East Asia, 28.1 (2011), p.222.

25 Human Rights Watch, World Report 2010: Burma (2010) <https://www.hrw.org/world-report/2010/countrychapters/burma> [Accessed: 19/12/18].

26 Syeda Parnini, ‘The Rohingya Refugee Crisis and Bangladesh-Myanmar Relations’, Asian and Pacific Migration Journal, 22.1 (2013), p. 127.

27 House of Commons Foreign Affairs Committee, Report Publication:Violence in Rakhine State and the UK’s response (2017) <https://www.parliament.uk/business/committees/committees-a-z/commons-select/foreignaffairs-committee/news-parliament-2017/violence-in-rakhine-state-report-17-19/> [Accessed: 16/12/18], p.24.

28 USAID, Burma (2016) <https://www.usaid.gov/> [Accessed: 19/12/18].

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international community, particularly Western states, to fixate on democracy-building in the region is another factor that highlights how the R2P failed to prevent the Rohingya crisis in Myanmar, because of the lack of political will and focus on the issue of the Rohingya. The UN is also partially responsible for inhibiting the potential success of R2P, in that it ‘places a premium on structural prevention…on helping to build the institutions, values, attitudes, policies and practices that make the commission of any of the four crimes…completely unacceptable’,29 to the point where it has become, in the case of Myanmar, counter-productive to actually fulfilling R2P. The over promotion of ‘peace, a new government and constitutional reform’ by the UN and other institutions, such as the EU, in Myanmar overshadowed the wider plight of the Rohingya, which represents a gross failure of the prevention aspect of R2P, as it is primarily concerned with placing the needs of the persecuted over state interests. 30 On the other hand, it is possible, and also quite likely, that through the promotion of democracy in Myanmar, Western members of the United Nations as well as the wider international community aimed to achieve protection for the Rohingya through the transitioning of Myanmar into a democracy. This argument is reinforced by the fact the UN itself describes democracy as ‘[providing] the natural environment for the protection and the effective realisation of human rights’.31 However, the democratic transition in Myanmar has in actuality ‘empowered a narrow oligarchy’,32 allowing for a worsening of the situation for the Rohingya. Therefore although since the new government took power in 2011, ‘the citizens of Myanmar have enjoyed a greater deal of freedom than at any time before’,33 this is certainly not the case for the Rohingya, in which interviews have shown Rohingya refugees stating that discrimination/violence intensified after the state began to transition into a democracy.34 The resultant de facto military oligarchy, which now dominates the Myanmar political landscape, emphasises that ‘countries in the early stages of transition from authoritarian rule are particularly at risk of identity-based divisions’.35 Perhaps R2P has wholly failed in the case of Myanmar because of the over prioritisation by the international community of helping the state transition to a democracy.

The very logic behind the idea that ‘the more democratic the regime, the less internal violence’ is incompatible with the role R2P should have played in preventing the Rohingya crisis.36 This is because where the international community has evidently prioritised democratisation over human rights, R2P ‘prioritises the needs of those seeking or needing support… as a fundamental component of the responsibility to 29 Edward Luck, ‘The Responsibility to Protect: Growing Pains or Early Promise?’, Ethics and International Affairs, 24.4(2010), p.352.

30 Shatti Hoque, ‘Myanmar’s Democratic Transition: Opportunity for Transitional Justice to Address the Persecution of the Rohingya’, Emory International Law Review, 32.4 (2015), p.571 31 United Nations, Democracy (2018) <http://www.un.org/> [Accessed: 16/12/18].

32 Lee Jones, ‘The Political Economy of Myanmar’s Transition’, Journal of Contemporary Asia, 44.1 (2014), p. 144.

33 Kyaw Yin Hlaing, ‘Understanding Recent Political Changes in Myanmar’ Contemporary Southeast Asia, 34.2 (2011), p.197.

34 Charles Lawley, ‘How Myanmar’s Move to Democracy Spiralled into Rohingya Genocide’ (2016).

35 Sarah Mcloughlin, ‘Understanding Mass Atrocity Prevention during Periods of Democratic Transition’, Politics and Governance, 3.3 (2015), p.28.

36 Rudolph Rummel, ‘Democracy, Power, Genocide and Mass Murder’, Journal of Conflict Resolution, 39.1 (1995), p.3.

prevent’,37 signifying that by pushing for regime change - which has led the situation to deteriorate exponentially since the state became ‘democratised’ - the R2P has failed entirely in preventing the present situation in Myanmar. In retrospect it can be clearly seen that, due to the creation of a ‘feel-good false narrative about Myanmar’s remarkable transition’ by the international community,38 there was a failure to prevent and thus a failure of the international community to take responsibility for protecting the Rohingya.

To summarise, the lack of application of the framework for analysing mass atrocity toolkit to identify obvious risks in Myanmar, as well as a misguided focus on instillingdemocracy into Myanmar rather than protecting and upholding the rights of the Rohingya are two examples of how the R2P has failed in the case of Myanmar, if prevention is framed as the indicator of R2P success. Another argument suggesting that preventative measures could have, but weren’t, taken by the international community, is the fact that state self-interest continues to override the internalisation of the preventative aspect of R2P. As well as the lack of use of the UN Framework and a misguided fixation on democratisation, another argument highlighting the failure of the R2P in the Rohingya crisis is the domination of self-interest politics in the run up to the crisis across the region. This led to no real substantive preventative measures being feasible due to the reluctance of regional actors to assist Myanmar in upholding its R2P. States in the region, particularly Bangladesh, have instead contributed to the crisis, leading to the resultant genocide that is now occurring.

For example, in response to the government-ordered clearing of Rohingya-majority villages, Bangladesh ‘[sealed] their borders and began limiting access to aid’.39 Furthermore, the Government of Bangladesh’s official policy on Rohingya refugees, formalised in 2014, outlined a 5 point plan of action for managing the rising levels of refugees spilling over the border in response to the growing crisis. Concerningly, one of the points stressed the importance of strengthening the borders between Myanmar and Bangladesh, in order to prevent as many refugees from reaching Bangladesh as possible.40 This policy operates in conjunction with the recent deal between Myanmar and Bangladesh which has seen ‘ongoing bilateral attempts to ‘repatriate’ large numbers of Rohingya refugees back to Myanmar’ despite increased warnings about the dangers of such policies by bodies such as the UN and Human Rights Watch.41 This highlights the failure of Bangladesh to fulfil not only its responsibility to protect the Rohingya from occurring in the first place, but also the attempt at repatriation despite several warnings highlight the absolute failure of Bangladesh to fulfil its own responsibility to prevent the situation from deteriorating further.

A study of the two largest camps in Bangladesh housing Rohingya refugees found that 37 Stephen Marks, Nicholas Cooper, ‘The Responsibility to Protect: Watershed or Old Wine in a New Bottle?’, Jindal Global Law Review, 2.1 (2010), 38 Mary Callahan, ‘Myanmar in 2017: Crises of Ethnic Pluralism Sets Transitions Back’, Southeast Asian Affairs, 1.1 (2018), p.243.

39 Maung Zarni and Alice Cowley, ‘The Slow Burning Genocide of Myanmar’s Rohingya’ Pacific Law and Policy Journal, 23.3 (2014), p.724.

40 Abul Milton et al., ‘Trapped in Statelessness: Rohingya Refugees in Bangladesh’, International Journal of Environmental Research and Public Health. 14.8 (2017), p.1-8.

41 Abhishek Bhatia et al., ‘The Rohingya in Cox’s Bazar: When the Stateless Seek Refuge’, Health and Human Rights, 20.2 (2018), p.106; Human Rights Watch, ‘Myanmar/Bangladesh Plan Puts Rohingya at Risk’ (2018).

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the vast majority of refugees faced ‘inadequate access to basic needs, exposure to violence, restricted movement, local hostility and various forms of discrimination’.42 This is supported by a study that interviewed female refugees forced to live in a refugee camp in Cox’s Bazar, the poorest district in Bangladesh,43 which found that most women and girls had experienced some form of sexual violence by a member of the host state since moving into the camp from Myanmar.44 The attempts of the Bangladeshi and Myanmar governments to send refugees back to Myanmar, in combination with the appalling conditions refugees live in once over the border, and the sexual violence the Rohingya experience in Bangladesh, highlights the distinct failure of R2P in preventing the situation in Myanmar. Therefore, overall it seems that R2P has failed entirely in the case of Myanmar in the sense that not only did the Myanmar government fail to prevent the crisis, local governments failed to uphold their responsibility to prevent mass atrocity crimes, in encouraging the worsening behaviour of Myanmar authorities towards the Rohingya.

In conclusion, if the R2P framework is used to assess the success of the international response to the Rohingya crisis, while there has been some intentional effort to implement Pillar 1 of the Responsibility to Protect through the process of democracy building, this has been misguided and ultimately superficial. Overall there has been a failure of the international community to work multilaterally to combat the issues facing the Rohingya.

If the UN framework had been effectively used, if Western states addressed human rights abuse instead of pushing for democracy, and if regional actors - such as Bangladesh - had effectively used its close ties with the state, the genocide taking place today could have been avoided.

42 Abul Milton et al., ‘Trapped in Statelessness: Rohingya Refugees in Bangladesh’, International Journal of Environmental Research and Public Health, 14.8 (2017), p. 6.

43 World Bank, Poverty Map: Bangladesh Technical Report (2010) <http://documents.worldbank.org/curated/ en/160611468014459434/pdf/904870v20Bangl0LIC000Sept004020140.pdf> [Accessed: 17/12/18].

44 Farzana Islam et al., ‘Situation of Sexual and Gender Based Violence among the Rohingya Migrants Residing in Bangladesh’, Injury Prevention, 22.1 (2016), p. 259-260.

Bibliography Arashpuor, Alireza. Roustaei, Alireza, ‘the investigation into crimes committed against Myanmar’s Rohingya and the invoke necessity to ‘the theory of the responsibility to protect’, Juridical Tribune, 6.2 (2016), 384-401 <http://tribunajuridica.eu/arhiva/ An6v22/28%20Arashpuor.pdf > [Accessed: 18/12/18] BBC News, ‘Myanmar Rohingya: What You Need to Know About the Crisis’, 24 April 2018, <https://www.bbc.co.uk/news/world-asia-41566561> [Accessed: 16/12/18] Bhatia, Abhishek, Mahmud, Ayesha, Fuller, Arlan, Shin, Rebecca, Rahman, Azad, Shatil, Tanvir, Sultana, Mahmuda, Morshed, Kam, Leaning, Jennifer, Balsari, Satchit, ‘The Rohingya in Cox’s Bazar: When the Stateless Seek Refuge’, Health and Human Rights, 20.2 (2018), 105-122 Callahan, Mary, ‘Myanmar in 2017: Crises of Ethnic Pluralism Sets Transitions Back’, Southeast Asian Affairs, 1.1 (2018), 243-273 Dieng,Adama and Welsh, Jennifer,‘Assessing the Risk of Atrocity Crimes’, Genocide Studies and Prevention, 9.3(2016), 4-12 <https://scholarcommons.usf.edu/cgi/viewcontent. cgi?referer=&httpsredir=1&article=1392&context=gsp> [Accessed: 16/12/18] Dosch, Jorn, Sidhu, Jatswan, ‘The EU’s Myanmar Policy: Focused or Directionless?’ Journal of Current Southeast Asian Affairs, 34.2(2015), 85-112, <https://journals.sub.uni-hamburg. de/giga/jsaa/article/view/842/843> [Accessed: 18/12/18] EconomicTimes,‘China to Build Port in Myanmar, third in India’s Neighbourhood’, Economic Times, 9 November 2018, < https://economictimes.indiatimes.com/news/defence/chinato-build-port-in-myanmar-third-in-indias-neighbourhood/articleshow/66555856.cms> [Accessed: 20/12/18] Foot, Rosemary, ‘The Responsibility to Protect and its Evolution: Beijing’s Influence on Norm Creation in Humanitarian Areas’, St Antony’s International Review, 6.2 (2011), 4766 [Accessed: 19/12/18] Ratcliffe, Rebecca, ‘Who are the Rohingya and What is Happening in Myanmar’, The Guardian, 6 September 2017 <https://www.theguardian.com/global-development/2017/ sep/06/who-are-the-rohingya-and-what-is-happening-in-myanmar> [Accessed: 17/12/18] Haacke, Jackie, ‘Myanmar, the Responsibility to Protect and the Need for Practical Assistance’, Global Responsibility to Protect, 1.156 (2009), 156-184 Hehir, Aidan, The Responsibility to Protect : Rhetoric, Reality and the Future of Humanitarian Intervention (Basingstoke: Palgrave Macmillan, 2012) Hlaing, Kyaw Yin, ‘Understanding Recent Political Changes in Myanmar’, Contemporary Southeast Asia, 34.2 (2011), 197-216 Hoque, Shatti, ‘Myanmar’s Democratic Transition: Opportunity for Transitional Justice to

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Address the Persecution of the Rohingya’, Emory International Law Review, 32.4(2015), 551-576, <http://law.emory.edu/eilr/_documents/volumes/32/4/hoque.pdf > [Accessed: 17/12/18] House of Commons Foreign Affairs Committee, Report Publication:Violence in Rakhine State and the UK’s response (2017) <https://www.parliament.uk/business/committees/ committees-a-z/commons-select/foreign-affairs-committee/news-parliament-2017/ violence-in-rakhine-state-report-17-19/> [Accessed: 16/12/18] Human Rights Watch, ‘Discrimination in Arakan’ (2000) <https://www.hrw.org/ reports/2000/burma/burm005-02.htm> [Accessed: 16/12/18] Human Rights Watch, World Report 2010: Burma (2010) <https://www.hrw.org/worldreport/2010/country-chapters/burma> [Accessed: 19/12/18] Human Rights Watch, ‘Myanmar/Bangladesh Plan Puts Rohingya at Risk’, November 2 2018 <https://www.hrw.org/news/2018/11/02/myanmar/bangladesh-plan-puts-rohingyarisk> [Accessed: 20/12/18] Hutchinson, Susan, ‘Gendered Insecurity in the Rohingya Crisis’, Australian Journal of International Affairs, 72.1 (2018), 1-9 International Criminal Court, Rome Statute of the International Criminal Court (1998) <https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE79CDC7CF02886/283503/RomeStatutEng1.pdf> [Accessed: 14/12/18] Islam, Farzana, Khan, Mohiuddin Hussain, Ueda, Masako, Chowdhury, Robiul Awal, Chowdhury, Salim Mahmud, Delem, Mshauri David, Rahman, Aminur, ‘Situation of Sexual and Gender Based Violence among the Rohingya Migrants Residing in Bangladesh’, Injury Prevention, 22.1 (2016), 259-260 Jones, Lee, ‘The Political Economy of Myanmar’s Transition’, Journal of Contemporary Asia, 44.1 (2014), 144-170, <http://content.csbs.utah.edu/~mli/Economies%205430-6430/ Jones-Myanmar.pdf> [Accessed: 11/04/19] Kersavage, Kathryn, ‘The ‘Responsibility to Protect’ our Answer to ‘Never Again’ ? Libya, Syria and a Critical Analysis of R2P’, International Affairs Forum, 5.1 (2014), 23-41 Kingston, Lindsey, ‘Protecting the World’s Most Persecuted: the Responsibility to Protect and Burma’s Rohingya Minority’, International Journal of Human Rights, 19.8 (2015), 1163-1175 Kipgen, Nagamjahao, ‘Conflict in the Rakhine State in Myanmar: Rohingya Muslims’ Conundrum’, Journal of Muslim Minority Affairs, 33.2 (2013), 298-310

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Lawley, Charles, ‘How Myanmar’s Move to Democracy Spiralled into Rohingya Genocide’, The Huffington Post, 14 September 2018 <https://www.huffingtonpost. co.uk/entr y/how-myanmars-move-to-democracy-spiralled-into-rohing ya_ uk_5b9b92efe4b0b9806f5fb72d> [Accessed: 14/12/18]

Luck, Edward, ‘The Responsibility to Protect: Growing Pains or Early Promise?’, Ethics and International Affairs, 24.4 (2010), 349-365 <http://responsibilitytoprotect.org/index.php/ francis-deng/3172-edward-luck-the-responsibility-to-protect-growing-pains-or-earlypromise> [Accessed: 11/04/19] Maclean, Ken, ‘The Rohingya Crisis and the Practices of Erasure’, Journal of Genocide Research, 1.1 (2018), 1-14 Marks, Stephen and Cooper, Nicholas, ‘The Responsibility to Protect: Watershed or Old Wine in a New Bottle?’, Jindal Global Law Review, 2.1 (2010), 86-130 <https://cdn1. sph.harvard.edu/wp-content/uploads/sites/580/2012/10/r2p_jglr_2010.pdf> [Accessed: 19/12/18] Mcloughlin, Stephen, ‘Understanding Mass Atrocity Prevention during Periods of Democratic Transition’, Politics and Governance, 3.3 (2015), 27-41, <https://www. cogitatiopress.com/politicsandgovernance/article/view/318/318 > [Accessed: 11/04/19] International Affairs, 24.4 (2010), 349-365 <http://responsibilitytoprotect.org/index.php/ francis-deng/3172-edward-luck-the-responsibility-to-protect-growing-pains-or-earlypromise> [Accessed: 11/04/19] Maclean, Ken, ‘The Rohingya Crisis and the Practices of Erasure’, Journal of Genocide Research, 1.1 (2018), 1-14 Marks, Stephen and Cooper, Nicholas, ‘The Responsibility to Protect: Watershed or Old Wine in a New Bottle?’, Jindal Global Law Review, 2.1 (2010), 86-130 <https://cdn1. sph.harvard.edu/wp-content/uploads/sites/580/2012/10/r2p_jglr_2010.pdf> [Accessed: 19/12/18] Mcloughlin, Stephen, ‘Understanding Mass Atrocity Prevention during Periods of Democratic Transition’, Politics and Governance, 3.3 (2015), 27-41, <https://www. cogitatiopress.com/politicsandgovernance/article/view/318/318 > [Accessed: 11/04/19] Milton, Abul et al., ‘Trapped in Statelessness: Rohingya Refugees in Bangladesh’, International Journal of Environmental Research and Public Health, 14.8 (2017), 1-8 <https://pdfs.semanticscholar.org/607f/c689939821fd53b5890db7b9d13890de43c4.pdf> [Accessed: 11/04/19] Michael Raska, ‘Strategic Contours of China’s Arms Sales’, Myanmar Times, 13 September 2017 <https://www.mmtimes.com/news/strategic-contours-chinas-arms-sales.html> [Accessed: 19/12/18] UN News, ‘Myanmar Military Leaders Must Face Genocide Charges’, 27 August 2018, <https://news.un.org/en/story/2018/08/1017802> [Accessed: 18/12/18] OEC, Burma Report (2016) <https://atlas.media.mit.edu/ > [Accessed: 20/12/18]

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Paik, Wooyeal, ‘Domestic Politics, Regional Integration, and Human Rights: Interactions among Myanmar, ASEAN and EU’, Asia Europe Journal, 14.4 (2016), 417-434 Parnini, Syeda, ‘The Rohingya Refugee Crisis and Bangladesh-Myanmar Relations’, Asian and Pacific Migration Journal, 22.1 (2013), 133-146 Prasse-Freeman, Elliot, ‘The Rohingya Crisis’, Anthropology Today, 33.6 (2017), 1-2 Rummel, Rudolph, ‘Democracy, Power, Genocide and Mass Murder’, Journal of Conflict Resolution, 39.1(1995), 3-26 Southwick, Katherine, ‘Preventing Mass Atrocities Against the Stateless Rohingya in Myanmar: a Call for Solutions’, Journal of International Affairs, 68.2(2015), 137-156 UN Office of the Special Advisors on the Prevention of Genocide and the R2P, Framework of Analysis for Atrocity Crimes: a Tool for Prevention (2014), <https://www.un.org/en/ genocideprevention/documents/about-us/Doc.3_Framework%20of%20Analysis%20 for%20Atrocity%20Crimes_EN.pdf> [Accessed: 14/12/18] United Nations General Assembly, Implementing the Responsibility to Protect: Report of the Secretary General (2009) <http://responsibilitytoprotect.org/implementing%20 the%20rtop.pdf> [Accessed: 14/12/18] United Nations General Assembly, A/RES/66/223, 66/223 Towards Global Partnerships (2011) <https://www.unescwa.org/sites/www.unescwa.org/files/un_resolutions/a_ res_66_223_e.pdf > [Accessed: 16/12/18] United Nations Security Council, S/RES/1888, Resolution 1888 (2009) <http://unscr.com/ en/resolutions/doc/1888> [Accessed: 17/12/18] United Nations General Assembly, Implementing the Responsibility to Protect: Report of the Secretary General (2009) <http://responsibilitytoprotect.org/implementing%20 the%20rtop.pdf> [Accessed: 14/12/18] United Nations General Assembly, A/RES/66/223, 66/223 Towards Global Partnerships (2011) <https://www.unescwa.org/sites/www.unescwa.org/files/un_resolutions/a_ res_66_223_e.pdf > [Accessed: 16/12/18] United Nations Security Council, S/RES/1888, Resolution 1888 (2009) <http://unscr. com/en/resolutions/doc/1888> [Accessed: 17/12/18] USAID, Burma (2016) <https://www.usaid.gov/> [Accessed: 19/12/18] United Nations, Democracy (2018) <http://www.un.org/> [Accessed: 16/12/18] United Nations Peacebuilding Fund, Myanmar: Summary (2016) <http://www.unpbf. org/> [Accessed: 17/12/18]

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World Bank, Poverty Map: Bangladesh Technical Report (2010) <http:// documents.worldbank.org/curated/en/160611468014459434/ pdf/904870v20Bangl0LIC000Sept004020140.pdf> [Accessed: 17/12/18] Xiao, Ren, ‘Positioning Norm, Principle and Interest in Chinese Foreign Policy- the Case of the Myanmar Issue’, East Asia, 28.1 (2011), 219-234 Zarni, Maung and Cowley, Alice, ‘The Slow Burning Genocide of Myanmar’s Rohingya’ Pacific Law and Policy Journal, 23.3 (2014), 682-753

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NGOs and the Plight of North Korean Refugees in China Joseph A Cumbo

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Abstract The past twenty years have seen an enormous influx of North Korean refugees to China, fleeing systematic oppression and outright starvation. However, under the harsh policies and actions of the Chinese government, North Koreans face a reality of terror, detainment and refoulement with the consequence of forced labour and even capital punishment upon return. While the crisis has been exacerbated by China’s booming human trafficking industry, complex international relations and lack of legal framework, NGOs and Christian missionaries have made attempts at alleviating the situation. Faced with challenges in the way of funding, public awareness and personal safety, activists have been forced to work underground, greatly reducing their effectiveness in saving North Korean refugees. Using personal accounts and activist research to supplement the gaps created by China’s strict censorship models, this study argues that despite valiant efforts made by NGOs, the lives of North Korean refugees in China will remain at risk until the government acknowledges this vulnerable group as victimised individuals.

Largely unbeknown to the Western World, the past twenty years have seen an enormous influx of North Korean refugees to China, fleeing systematic oppression and outright starvation.1 However for these refugees, the nightmare does not end upon successful breach of the Chinese border. Under the harsh policies and actions of the Chinese government, North Koreans face a reality of terror, detainment and refoulement with the consequence of forced labour and even capital punishment upon return; a direct breach of international law set out in the 1951 UN convention.2 To further exacerbate the crisis, human trafficking of vulnerable peoples is rife in China, earning the Chinese government Tier3 status in the Trafficking in Persons report for the second year in a row- neither reaching the minimum standards for the elimination of trafficking, nor making significant efforts to do so.3 Naturally, such a grave infringement on human rights has attracted humanitarian aid in the form of NGOs working clandestinely in the hope of eliminating this state of affairs.

In light of this complex balancing act between upholding legislation and recognizing basic human rights, this essay explores the work being done by NGOs in the field, with a focus on the main factors affecting their success. Seemingly working against two authoritarian states, the main factors affecting the success of NGO work on North Korean refugees in China can be broadly divided into policies and actions of the Chinese government, and the nature of NGO work in China. In order to determine the role of government in this situation, it is first necessary to evaluate its involvement in the matter from a policy point of view. This includes current Chinese legislation and foreign policy – taking into consideration China’s impactful ‘One Child Policy’ – as well as the Chinese government’s favour for the term ‘economic migrant’ over ‘refugee’.When it comes to government action, this work will examine how 1 S.Yu, ‘How North Koreans become victims of human trafficking’, South China Morning Post <https://www. scmp.com/news/china/diplomacy-defence/article/2100944/seeking-refuge-slavery-how-north-koreans-becomevictims> [Accessed: 25 Nov 2018].

2 Cecc.gov.,’UN Report Criticizes China for Treatment of North Korean Refugees Amid Worsening Situation’, Congressional-Executive Commission on China <https://www.cecc.gov/publications/commission-analysis/unreport-criticizes-china-for-treatment-of-north-korean-refugees> [Accessed: 16 Nov. 2018].

3 U.S. Department of State, ‘China’, State Government <https://www.state.gov/j/tip/rls/tiprpt/ countries/2018/282632.htm> [Accessed: 20 Nov. 2018].

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policy equates to action, drawing upon the experiences of survivors and estimates provided by NGOs to fill in statistical gaps.The second main affecting factor, the nature of NGO work in China, will cover broad challenges faced by many NGO sectors, however specific to the plight of North Korean refugees. This includes everything from basic funding, to government support and public awareness. The impact of Christian rhetoric on the overall success of NGO will also be taken into consideration.With an overarching theme of the relationship between the Chinese government and NGO success rates in China, this essay serves to reemphasize the question of whether there is space for civil society in China and what that means for North Korean refugees.

Policies and actions of the Chinese Government What is a refugee? From a linguistic approach, North Korean escapees have been transformed from what is considered a‘refugee’ in the international dimension,to‘economic migrants’ within China.4 In order to explain this inversing of status, one must examine the United Nations Human Rights Council’s (UNHRC) 1951 Refugee Convention and its 1967 Protocol, the two most internationally accepted treaties detailing the protection and treatment of refugees; to which China has been a party since 1982.5 Article 1A of the Convention stipulates that refugee status should be awarded based on a “well-founded fear of being persecuted on account of race, religion, nationality, political opinion, or being a member of a social group”.6 While the Chinese government argues that the party in question is unable to provide such evidence of the aforementioned conditions, Article 33 of the same Convention stipulates that “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened”,7 making them ‘refugees sur place’.8 From the personal accounts of North Korean survivors, including the autobiographies of Yeonmi Park and Hyeonseo Lee, there is evidence that ‘defectors’ do in fact face life-threatening consequences upon repatriation, including torture, imprisonment and public executions, evidencing China’s breach of the Convention.9 Despite the two treaties being regarded as customary international law by some, there is no legal way to enforce its policies within individual states. Indeed, the lack of legal and administrative framework in China has allowed the government to neglect its international obligations and to label North Korean refugees as ‘economic migrants’, fleeing their own country for economic benefit.

Until 2013, Article 46 of the PRC Law on Administration on Entry and Exit of Borders of Aliens and Article 32 of the PRC Constitution were the only legislation referring to refugee status and treatment, granting refugee status primarily based upon the judgement of China’s governing authority, not referencing any specific guidelines for qualification.10 4 J.Yeo Hoon, ‘China’s Way out of the North Korean Refugee Crisis: Developing a Legal Framework for the Deportation of North Korean Migrants’ Geo. Immigr. L.J., 25 (2011) 515, p.516.

5 L. Song,’Who Shall We Help? The Refugee Definition in a Chinese Context’, Refugee Survey Quarterly, 33.1 (2014), pp.44-58.

6 Convention Relating to the Status of Refugees, 1951. vol. 189, 1951 Convention p.14, opened for signature 28 July 1951, entered into force 22 April 1954.

7 Id., Article 33.

8 P. Robertson, ‘North Korean Refugees Trapped by China’s Expanding Dragnet’, Human Rights Watch <https:// www.hrw.org/news/2017/09/18/north-korean-refugees-trapped-chinas-expanding-dragnet> [Accessed 22 Nov. 2018].

9 H. Lee and D. John, The girl with seven names (New York, HarperCollins Publishers, 2015);Y. Park, In order to live (S.L., Penguin Books, 2016).

10 China.org.cn.,‘China’s Current Legislation Structure’, China.org <http://www.china.org.cn/english/ kuaixun/76212.htm> [Accessed: 24 Nov. 2018].

For this reason, the number of registered North Koreans in China does not qualify it as a population of concern, according to the UN High Commissioner for Refugees (UNHCR) China Factsheet 2015,11 despite estimates that tens or even hundreds of thousands of North Korean refugees are in hiding throughout China.12 The terminology used and the lack of enforcement by the UNHCR hinders the success of NGOs in two ways; firstly, through lack of a legal framework within China, there are no legal channels through which NGOs can attempt to legalize refugees’ status- as was the case with the MoFa Seven, who after being repatriated to North Korea, their fate is unknown to this day.13 Secondly, aware of their lack of legal status and rights, more and more refugees are pushed into hiding.

Further developing the factor of government policy, it is necessary to look at China’s foreign policy, specifically relating to Sino-North Korean relations. With a history of alliance spanning back to Cold War times, the Chinese and North Korean governments have historically been fairly lenient on one another, lending political and economic support over the past 60 years- as well as the fact that China is home to over 2 million ethnic Koreans.14 It was only in 1986, a few short years after China became party to the Refugee Convention, that the Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order and the Border Areas15 was signed between the two states.

Article 4 which focuses on the prevention of illegal border crossing stipulates that “In the case of crossing the border without possession of a legal certificate or without passing through screening agencies or the passage places stated on the possessed certificate, [the individual] shall be treated as an illegal border crosser.” And that upon arrest, the individual “shall be turned over to the other side”. The protocol is very clear from an action point of view, however refrains from mentioning any specific qualifying conditions, contrary to those which are set out in the Convention and which would prevent the repatriation of certain individuals. According to the scholar Bader, the Sino-North Korean relationship is “a thing of the past”,16 which in conjunction with growing international pressure to alleviate the situation, gives an impression that the Chinese government’s stance on this issue should be altering. Yet, China continues to appease its ally by repatriating refugeesas was the case as recently as November 2017.17 Due to the abject fear of repatriation amongst refugees, the work of NGOs in this sector is extremely complex, constituting heavy risks in fieldwork, pushing the network of activists further underground in the struggle against continued cooperation between two very authoritarian governments.

11 UNHCR, ‘China Fact Sheet’, United Nations High Commissioner for Refugees <http://www.unhcr.org/uk/ protection/operations/5000187d9/china-fact-sheet.html> [Accessed: 19 Nov. 2018].

12 R. Cohen, ‘China’s Repatriation of North Korean Refugees’, Brookings <https://www.brookings.edu/ testimonies/chinas-repatriation-of-north-korean-refugees/> [Accessed: 17 Nov. 2018].

13 Seoul Train [DVD], Directed by J. Butterworth. (USA: Jim Butterworth, 2004).

14 T. David Volodzko, ‘China’s Koreans, Part I: A Brief History’, The Diplomat <https://thediplomat.com/2015/08/ chinas-koreans-part-i-a-brief-history/> [Accessed: 22 Nov. 2018].

15 Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas 1986 <http://www.nkfreedom.org/UploadedDocuments/NK-China-bilateral_treaty.pdf> [Accessed: 18 November 2018].

16 J. Bader, ‘Why deterring and containing North Korea is our least bad option’, Brookings <https://www. brookings.edu/blog/order-from-chaos/2017/08/08/why-deterring-and-containing-north-korea-is-our-least-badoption/> [Accessed: 16 Nov. 2018].

17 D. Campanale and J. Gunter, ‘N Korean man begs China to help family’, BBC News <https://www.bbc.co.uk/ news/world-asia-41952298> [Accessed: 20 Nov. 2018].

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The third government policy with a lasting effect on NGO work and the North Korean refugee crisis, is the 1979 one child policy. In order to curb population growth and encourage economic development, the Chinese people were permitted one child per family, with drastic consequences.18 The consequence that is most highly applicable to the plight of North Korean refugees, is the gender imbalance it caused. By means of selective abortion and unregistered births, China now faces a gender imbalance of over 1.15,19 equating to roughly 30 million ‘left behind’ men; thereby creating a demand for brides.Whilst gender ratios in China are skewed in favour of male, North Korean refugee gender ratios are severely skewed towards female, owing to the relative ease for women to escape North Korea compared to men- whilst estimates for the gender balance range from 57% female according to Chang,20 to as high as between 70 and 80% from organisations such as the Ministry of Unification and Crossing Borders,21 it is evident that the majority of North Korean refugees in China are female. These two factors combined have caused a human trafficking phenomenon with a heavy emphasis on the bride and sex industry. As is evidenced by China’s status as a Tier 3 country in the Trafficking in Persons report, the government is doing little to combat this issue,22 meaning that NGOs face threats from widespread organised crime rings on a backdrop of an indifferent government. This has affected NGO work in two ways; accessibility to vulnerable female refugees, and the added after care required for rescued women. In order to avoid direct capture from traffickers patrolling the border region, NGO workers must be first at the scene to provide assistance for new arrivals, a feat in itself as crossings are opportune and contact is restricted- some NGOs are known to buy the women from traffickers in order to save them.23 However, for those unfortunate refugees that are captured and enter the trafficking industry (an estimated 80% of all female refugees according to Crossing Borders NK), escape and rescue is possible. Once escaped, NGOs such as Crossing Borders and Refugee Pnan provide aid in the form of shelter and education for children but may also deal with the psychological issues derived from a life of terror in North Korea which have been further intensified by the traumatic experience of being trafficked.24 Psychological issues can include PTSD, anxiety and depression25 which require more funding, greater man power and general expertise in order for NGOs to work effectively; a factor which will be explored in greater depth when discussing challenges facing NGOs in China. When it comes to implementing policy, the Chinese government has actively sought out North Korean refugees through campaigns such as the Strike Hard Campaign in 2002, leading to an increase in border patrols and crackdowns on safe houses.26 Whilst this has increased risk for NGO workers and refugees, it also weakened 18 J. Aird, ‘Rural Health and Birth Planning in China: By Pi-chao Chen, [Research Triangle Park, North Carolina: International Fertility Research Programme, 1981. 115 pp.]’, The China Quarterly, 90 (1982), p.316.

19 Q. Ding and T. Hesketh, ‘Family size, fertility preferences, and sex ratio in China in the era of the one child family policy: results from national family planning and reproductive health survey’, BMJ, 333.7564 (2016), pp.371373.

20 Y. Chang, S. Haggard and M. Noland, ‘Migration Experiences of North Korean Refugees: Survey Evidence from China’, SSRN Electronic Journal, (2006), pp.14-30.

21 Ministry of Unification, ‘Policy on North Korean Defectors’, UniKorea <https://www.unikorea.go.kr/eng_ unikorea/relations/statistics/defectors/> [Accessed: 19 Nov. 2018].

22 U.S. Department of State, China.

23 J. Han, ‘Beyond Safe Haven’ Critical Asian Studies, 45.4 (2013), pp.533-560.

24 Pnan.org., ‘The Refuge pNan - Christian NGO Aiding Refugees’, Pnan <http://www.pnan.org/new/sub/english. html> [Accessed: 24 Nov. 2018].

25 M. Wu, ‘Framing AIDS in China: A Comparative Analysis of US and Chinese Wire News Coverage of HIV/AIDS in China’ Asian Journal of Communication, 16.3 (2006), pp.251-272.

26 Y. Chang, Migration Experiences, pp.14-30.

sympathy among the large ethnic Korean community in the border regions, now too scared to support NGO’s with extra safe houses and backing.27 NGOs must now take more of the strain, working largely alone. In the cities, government action has also affected the success of NGO work by preventing refugees from obtaining safety in one of the foreign embassies. Following the highly mediatised event in 2002 wherein armed Chinese police were recorded entering the Japanese embassy in Beijing and forcibly removing five refugees,28 police patrols around foreign embassies have been increased along with demands to hand over refugees residing within. Despite sparking international outcry at the obvious violation of the Vienna Convention on Consular Relations,29 the deliberate actions of the government have hindered the success of NGOs by demonstrating the precarity of taking the embassy route, forcing more to take the much longer and costly smuggling routes through a larger proportion of China to Mongolia and South East Asia.

The nature of NGO work in China Despite the success of NGOs working in the refugee sector being heavily impacted by the policies and actions of the government, challenges that NGOs face in terms of funding and expertise also play a key role, prevalent both within China and around the world.

The process of rescuing a North Korean refugee requires both a substantial time and monetary investment, spanning from the safe houses along the North-Eastern border, to the third country destinations of Mongolia, South-East Asia and eventually South Korea. NGOs and brokers are confronted with added costs throughout the rescue in the form of bribes for guards and officials. The total cost of rescuing a refugee can come to around $3,000 (a full breakdown of the costs can be seen at Liberty in North Korea- All for One).30 To add to the financial strain, NGOs face a staffing issue. To affect positive change and rescue refugees, a large proportion of staff must be active in the field, a risky and challenging operation which requires a specific set of skills; namely the courage and adaptability to face unpredictable and dangerous situations, as well as the ability to speak Korean and connect with individuals which might be suffering from psychological issues such as PTSD and anxiety.31 With such demanding characteristics required from activists, the issue of staffing combined with the lack of funding negatively affects the success and overall accessibility of NGO work in this sector. Whilst NGOs are actively trying to recruit more activists,32 lack of public awareness and the legalities of the situation act as further hinderances to the recruitment process.

Due to the nature of this work which defies the Chinese government from both a political and legislative point of view, many NGOs in this sector can be considered INGOs, heavily relying on foreign funding and media campaigns from outside of China.33 If the work and success of the NGOs were to be placed in the context of Teets’ ideas in Civil Society under Authoritarianism, the struggles they face in terms of gaining public support is 27 J. Han, Beyond Safe Haven, pp.533-560.

28 P. Robertson, ‘North Korean Refugees’.

29 The Vienna Convention on Consular Relations, vo1. 596,Vienna Convention on Consular Relations, p. 261. Opened for signature 24 April 1963, entered into force 19 March 1967.

30 Liberty in North Korea, ‘Refugee Rescues - Liberty in North Korea’, Liberty in North Korea <https://www. libertyinnorthkorea.org/rescue-refugees/> [Accessed: 24 Nov. 2018].

31 Seoul Train [DVD] 32 Helpinghandskorea.org, ‘How to help’, Helping Hands Korea <http://www.helpinghandskorea.org/how-to-help/> [Accessed: 16 Nov. 2018].

33 Citizens Alliance for North Korean Human Rights, ‘Advocacy and Campaigns’, NK Human Rights <http://eng. nkhumanrights.or.kr/eng/ourwork/campaign_00.php> [Accessed: 22 Nov. 2018].

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further emphasized by the government’s averseness of human rights groups.34 In this situation, the role of media can be examined from two perspectives; on the one hand, the international coverage of refugees forcibly removed from the Japanese embassy sparked international outcry and prompted the Chinese government to release them.35 On the other hand, China’s media censorship means that coverage of the current North Korean refugee crisis is not widespread, thereby reducing public awareness of the issue within China itself.36 Some argue however, that increased media attention is not a good thing, attracting unwanted attention and compromising the safety of refugees still in hiding.37 There exists a constant conflict between increasing public awareness (including raising funds) and being ‘free’ to be of practical use to the cause.Two such cases are Pastor Chun who was arrested along the Mongolian border38 and Mike Kim, CEO of Crossing Borders NK, who has chosen to relinquish field work in China in order to gain more traction for the cause in the public sphere.39 (Crossing Borders, 2018). Although both aspects are important to the overall success of the NGO, the fact that both cannot be pursued at the same time shows a clear limitation on their success.

With so many NGOs working in the sector claiming religious affiliation, namely Evangelical Christianity, the final factor worth examining in the evaluation of success rates amongst NGOs is the role of religion. Whilst organisations such as Durihana and Helping Hands Korea claim on their websites that it is through Christian compassion that they help North Korean refugees in a practical manner through the provision of safety and shelter, an opposing argument of continued capture and indoctrination has emerged from scholars such as Ju Hui Judy Han. Through a series of interviews with North Korean women in Christian missionary safehouses, it is debated that “the journey through China becomes parallel to the process of conversion”.40 Han argues that through lack of transparency and accountability (due to the underground nature of their mission), the safe houses can become “a profoundly confining and disciplinary passage”,41 weakening the overall validity of these organisations’ missions. While opinions on religious NGOs vary wildly from “subversive tactics with the intention of changing cultures and communities to subscribe to a foreign ideology” to organisations which are sure to offer aid to those in need regardless of ethical or moral stances;42 it can be assumed that the success of NGOs in the field relating to North Korean refugees is affected by a religious factor. While they have the ability to tap into large donation pools, their lack of transparency and the claim of converting those they rescue may lead to the alienation of people who do not share the same religious values, thereby reducing support.

34 J. Teets, ‘Civil Society under Authoritarianism: The China Model’, The China Journal, 77 (2014), pp.177-179.

35 P. Robertson, ‘North Korean Refugees’. 36 L. Song, ‘Who Shall We Help? The Refugee Definition in a Chinese Context’ Refugee Survey Quarterly, 33.1 (2014), pp.44-58.

37 J. Han, Beyond Safe Haven, pp.533-560.

38 Durihanamission.org, ‘What We Do – Durihana Inc.’, Durihana Mission <https://www.durihanamission.org/about-us/> [Accessed: 16 Nov. 2018].

39 Crossing Borders, ‘Trafficked North Korean Refugees — Crossing Borders’, Crossing Borders NK <https://www. crossingbordersnk.org/trafficked-north-korean-refugees/> [Accessed: 15 Nov. 2018].

40 P. Robertson, ‘North Korean Refugees’.

41 J. Han, Beyond Safe Haven, pp.533-560.

42 The Guardian, ‘ Aid without faith – is there a place for religious NGOs in the 21st century?’ The Guardian <https:// www.theguardian.com/global-development/2015/jan/07/aid-without-faith-is-there-a-place-for-religious-ngos-in-the-21stcentury> [Accessed: 24 Nov. 2018].

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Conclusion In reaching a final judgment on the factors affecting the success of NGO work on issues relating to North Korean refugees in China, the question must be analysed under the umbrella of cause and solution.While the devastating policies of the Chinese government are the factors that have created the current deadly environment for refugees, the solutions set forth by NGOs are thwarted and limited at every level by government action. NGOs have also created their own obstacles through enforcing religious rhetoric throughout their framework, leading us to question the application of their work when considering international standards of human rights. Funding, staffing and public awareness although being considered challenges to NGO work in general, are further exacerbated by the government’s lack of support for human rights groups and through their labelling of North Korean refugees as ‘economic migrants’. This brings us back to the question of whether there is space for NGOs to function in China? And is the situation simply far too sensitive from a national security point of view? While success can be considered on an individual basis, overcoming dire challenges to provide services and saving lives, there remains the concern that limitations imposed by the government are far too severe for NGOs to achieve wide-spread success and to ultimately alleviate the situation.

Bibliography Aird, J., ‘Rural Health and Birth Planning in China: By Pi-chao Chen. [Research Triangle Park, North Carolina: International Fertility Research Programme, 1981. 115 pp.]’, The China Quarterly, 90 (1982) Bader, J., ‘Why deterring and containing North Korea is our least bad option’, Brookings <https://www.brookings.edu/blog/order-from-chaos/2017/08/08/why-deterring-andcontaining-north-korea-is-our-least-bad-option/> [Accessed: 16 Nov. 2018] Campanale, D. and J. Gunter, ‘N Korean man begs China to help family’, BBC News <https://www.bbc.co.uk/news/world-asia-41952298> [Accessed: 20 Nov. 2018] Cecc.gov.,’UN Report Criticizes China for Treatment of North Korean Refugees Amid Worsening Situation’, Congressional-Executive Commission on China, <https://www. cecc.gov/publications/commission-analysis/un-report-criticizes-china-for-treatment-ofnorth-korean-refugees> [Accessed: 16 Nov. 2018] Chang, Y., S. Haggard and M. Noland, ‘Migration Experiences of North Korean Refugees: Survey Evidence from China’, SSRN Electronic Journal, (2006) pp.14-30 China.org.cn.,‘China’s Current Legislation Structure’, China.org <http://www.china.org. cn/english/kuaixun/76212.htm> [Accessed: 24 Nov. 2018] Citizens Alliance for North Korean Human Rights, ‘Advocacy and Campaigns’, NK Human Rights <http://eng.nkhumanrights.or.kr/eng/ourwork/campaign_00.php> [Accessed 22 Nov. 2018] Cohen, R., ‘China’s Repatriation of North Korean Refugees’, Brookings <https://www. brookings.edu/testimonies/chinas-repatriation-of-north-korean-refugees/> [Accessed: 17 Nov. 2018]

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Convention Relating to the Status of Refugees, vol. 189, 28 July 1951 Crossing Borders, ‘Trafficked North Korean Refugees — Crossing Borders’, Crossing Borders NK <https://www.crossingbordersnk.org/trafficked-north-korean-refugees/> [Accessed: 15 Nov. 2018] David Volodzko, T., ‘China’s Koreans, Part I: A Brief History’, The Diplomat <https:// thediplomat.com/2015/08/chinas-koreans-part-i-a-brief-history/> [Accessed: 22 Nov. 2018] Ding, Q. and T. Hesketh, ‘Family size, fertility preferences, and sex ratio in China in the era of the one child family policy: results from national family planning and reproductive health survey’, BMJ, 333.7564 (2016), pp.371-373 Durihanamission.org, ‘What We Do – Durihana Inc.’, Durihana Mission <https://www. durihanamission.org/about-us/> [Accessed: 16 Nov. 2018] Han, J., ‘Beyond Safe Haven’, Critical Asian Studies, 45.4 (2013), pp.533-560 Helpinghandskorea.org, ‘How to help’, Helping Hands helpinghandskorea.org/how-to-help/> [Accessed: 16 Nov. 2018]

Korea

<http://www.

Lee, H. and D. John The girl with seven names (New York, HarperCollins Publishers, 2015) Liberty in North Korea, ‘Refugee Rescues - Liberty in North Korea’, Liberty in North Korea <https://www.libertyinnorthkorea.org/rescue-refugees/> [Accessed: 24 Nov. 2018] Ministry of Unification, ‘Policy on North Korean Defectors’, UniKorea <https://www. unikorea.go.kr/eng_unikorea/relations/statistics/defectors/> [Accessed: 19 Nov. 2018] Mutual Cooperation Protocol for the Work of Maintaining National Security and Social Order in the Border Areas, (1986) <http://www.nkfreedom.org/UploadedDocuments/ NK-China-bilateral_treaty.pdf> [Accessed: 18 November 2018] Park,Y., In order to live (S.L., Penguin Books, 2016) Pnan.org., ‘The Refuge pNan - Christian NGO Aiding Refugees’, Pnan <http://www.pnan. org/new/sub/english.html> [Accessed: 24 Nov. 2018] Robertson, P., ‘North Korean Refugees Trapped by China’s Expanding Dragnet’, Human Rights Watch <https://www.hrw.org/news/2017/09/18/north-korean-refugees-trappedchinas-expanding-dragnet> [Accessed: 22 Nov. 2018] Teets, J., ‘Civil Society under Authoritarianism: The China Model’, The China Journal, 77 (2014), pp.177-179 The Guardian, ‘ Aid without faith – is there a place for religious NGOs in the 21st century?’, The Guardian <https://www.theguardian.com/global-development/2015/jan/07/

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aid-without-faith-is-there-a-place-for-religious-ngos-in-the-21st-century> [Accessed: 24 Nov. 2018] The Vienna Convention on Consular Relations, vo1. 596, 24 April 1963 U.S. Department of State, ‘China’, State Government <https://www.state.gov/j/tip/rls/ tiprpt/countries/2018/282632.htm> [Accessed: 20 Nov. 2018]UNHCR,‘China Fact Sheet’, United Nations High Commissioner for Refugees <http://www.unhcr.org/uk/protection/ operations/5000187d9/china-fact-sheet.html> [Accessed: 19 Nov. 2018] Wu, M., ‘Framing AIDS in China: A Comparative Analysis of US and Chinese Wire News Coverage of HIV/AIDS in China’, Asian Journal of Communication, 16.3 (2006), pp.251272 Yeo Hoon, J., ‘China’s Way out of the North Korean Refugee Crisis: Developing a Legal Framework for the Deportation of North Korean Migrants’, Geo. Immigr. L.J., 25 (2011) 515 Yu, S., ‘How North Koreans become victims of human trafficking’, South China Morning Post <https://www.scmp.com/news/china/diplomacy-defence/article/2100944/seekingrefuge-slavery-how-north-koreans-become-victims] [Accessed: 25 Nov 2018] Seoul Train [DVD], Directed by J. Butterworth (USA: Jim Butterworth, 2004) Song, L., ‘Who Shall We Help? The Refugee Definition in a Chinese Context’, Refugee Survey Quarterly, 33.1 (2014), pp.44-58

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‘Portals to each other and to the world’:1 Storytelling as the Door to Cosmopolitan Sympathy in Mohsin Hamid’s Exit West Connie Lawfull

1 Mohsin Hamid, Exit West (London: Penguin Books, 2017), p.55.

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Abstract In her 2012 essay ‘Sympathy and Cosmopolitanism: Affective Limits in Cosmopolitan Reading’, Katherine Hallemeier convincingly exposed models of reading in which ‘the sympathetic imagination determines the possibility of a cosmopolitan practice’2 to be both problematic and limited, yet reading novels is still widely conceived to be a morally bettering pursuit.

Using Mohsin Hamid’s 2017 novel Exit West - a novel that, with its supernatural doors, brings both the novel’s characters and its readership into contact with people and cultures from beyond their own borders - I will debate whether storytelling should be condemned as an ineffective means of realising idealised notions of a cosmopolitan planet, or whether it still has merit in ensuring that we recognise and honour the responsibility we hold for others in a world divided by xenophobia and conflict over border control. Ultimately, I will argue that while the novel does not entirely contest Hallemeier’s criticisms, it demonstrates faith in the ability of storytelling to humanise the other, prompt genuinely and proactively moral behaviour, and diminish the significance of borders more effectively than an abstract consideration of our moral responsibilities.

Literature, in particular the novel, has long been believed to hold the capacity to cultivate sympathy in the reader; and this sympathy has long been deemed both a righteous characteristic of the individual and a quality that is beneficial to society. However, in her essay ‘Sympathy and Cosmopolitanism: Affective Limits in Cosmopolitan Reading’, Katherine Hallemeier outlines and argues against this stance, and against models of reading in which ‘the sympathetic imagination determines the possibility of a cosmopolitan practice’.3 While not entirely contesting Hallemeier’s criticisms, over the course of this essay I will argue that Mohsin Hamid’s internationally acclaimed 2017 novel, Exit West, demonstrates a faith in the ability of storytelling to evoke the compassion required for a truly cosmopolitan world - both within the novel’s fictional planet and through its place in our own.

Arguing that by presenting lives lived beyond the reader’s borders as ‘deep, rich and emotion-worthy’, literature is able to ‘construct compassion’ through prompting identification with others,4 Martha Nussbaum is amongst the thinkers Hallemeier outlines as advocating for the cultivation of sympathy through literature. Nussbaum suggests that while sympathy is a necessary tool for ‘equitable decision making’ and ‘just international debate’,5 on an emotional level we do not truly believe the assertions of the equality of all people’s worth. She conceives of literature as a potential remedy to this disconnect.

While recognising literature’s limitations in cultivating true sympathy for distant others, Adam Smith, too, is shown to put forward sympathy as a desirable disposition, stating that it ‘both marks individual virtue and ensures the fulfilment of public duties’. He proposes that literature, with its facility to ‘paint the refinements and delicacies of love and friendship, and of all other private and domestic affections’, is a superior means of cultivating this disposition.6 2 Katherine Hallemeier , ‘Sympathy and Cosmopolitanism: Affective Limits in Cosmopolitan Reading’, Culture, Theory and Critique, 54.1 (2013), p.92.

3 Hallemeier, p.92.

4 Martha Nussbaum in Hallemeier, p.91 5 Martha Nussbaum in Hallemeier, p.94.

6 Adam Smith in Hallemeier, p.89.

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Hallemeier accuses these pedagogies of perpetuating inequality through the ‘implicit and unequal distribution of rational powers’ created through the construction of humans as‘objects of cosmopolitan sympathy, or as sympathising cosmopolitan subjects’ - a divisionthat often establishes the object of sympathy as a ‘passive or emotive ‘other’’.

Furthermore, Hallemeier condemns these models for being not only problematic, but ineffectual in ensuring true social change. She states that through reading we are given ‘an opportunity for self-satisfied but ineffective ‘connection’’, but this ultimately allows us to remain acquiescent.7 She also questions the extent to which storytelling - be it fictitious or not - can cultivate true empathy, suggesting that stories can ‘render humanity as unreal as a novel’, and that fiction ‘usurps, rather than reveals, the reality of ‘humanity’’.8 Hallemeier presents attempts to rigidly define the human, and particularly to define the human in terms of their capacity for sympathy, as reductive and problematic, suggesting that cosmopolitan theory should abandon such methodologies. She contests the stance that our responsibility to others hinges on ‘the reality of a sympathetic humanity’, instead inviting us to embrace a model of cosmopolitan reading that ‘consider[s] how the presence or absence of sympathy is immaterial to our responsibility to others’. She proposes that, rather than serving as a means of ‘sympathising with another as ‘fully human’, or as apprehending a ‘human’ community’, narratives could be ‘understood as cosmopolitan insofar as they question and test prevalent definitions of, or stories about, ‘humanity’’.9 In my examination of Mohsin Hamid’s Exit West I believe it pertinent to consider not only the text itself, but also its reception. With supernatural doors between far off locations inexplicably appearing across the globe within the novel, migrants are inexorably brought into the hearts or richer countries, challenging both citizens and governments to face up to the level of sympathy and responsibility they truly hold for the ‘other’. However, the novel is not only about the fictional formation of a truly cosmopolitan planet but is - if assertions made by Nussbaum concerning literature’s ability to advance cosmopolitan sympathy are to be believed – actively involved in the cultivation of cosmopolitan sympathy in real life. Since its publication in 2017, Exit West has enjoyed both critical and commercial international success, even earning a place on Barack Obama’s twelve best books of the year, 10 alongside a number of awards and nominations. Amongst praise for novel, Hamid is most frequently commended for doing precisely what Smith and Nussbaum commend: eliciting feelings of compassion and identification in the reader, and prompting us to reassess how we perceive and react to the world. The New York Times heralded Hamid for demonstrating ‘fiction’s capacity to elicit empathy and identification to imagine a better world’.11 The Aspen Words Literary Prize - an award that recognizes ‘the transformative power of literature on thought and culture’ - described the novel as ‘a work of deep humanity’ that forces readers to consider ‘what potential we have to do

10 The Express Tribune, ‘Mohsin Hamid’s Exit West makes it to Obama’s favourite books of 2017’, The Express Tribune, 1 January 2018 <https://tribune.com.pk/story/1597950/3-mohsin-hamids-exit-west-makes-obamasfavourite-books-2017/> [Accessed: 4 January 2019].

11 Viet Thanh Nguyen, ‘March’s Book Club Pick: ‘Exit West,’ by Mohsin Hamid’, The New York Times, 10 March 2017 <https://www.nytimes.com/2017/03/10/books/review/exit-west-mohsin-hamid.html> [Accessed: 4 January 2019]

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better’. 12 Thus it is clear that, within the literary world and amongst readers, the traditional models of cosmopolitan reading that Hallemeier contests remain firmly established, and novel reading is still thought of as a morally bettering pursuit.Within Exit West, sympathy is presented as ensuring ‘equitable decision making’13 and ‘fulfilment of public duties’14 in the way that Nussbaum and Smith assert it does. The engagement of the citizens of richer countries with the suffering of the migrants is portrayed not as a problematic, self-satisfying and ultimately limited extension of sympathy, but as the instigator of true activism and change, with characters who appear as volunteers in the novel being explicitly said to provide hope.15 Be it the ‘kind disposition’ of the girl who treats Nadia’s injured arm in Mykonos,16 or the ‘empathy and good intent’ of the boy administering polio drops in London,17 the volunteers are consistently characterised as examples of earnest and genuinely moral individuals.This authenticity is illustrated well in the sixth chapter where, in one of the novel’s many supplementary vignettes, we are presented with an account of a young woman in Vienna who, on learning of a mob retaliating against militant shootings by planning an attack on blameless migrants, sets out ‘to join a human cordon’ in order to protect them.18 We are told that she is an employee of a contemporary gallery who lives in ‘lovely apartment’ with ‘a view of the river’,19 and that she wears ‘a peace badge on her overcoat, and a rainbow pride badge, and a migrant compassion badge’.20 From this minimal profile we are able to construct an image of her that is somewhat clichéd; she is a privileged intellectual whose compassion for others is not only a principle she holds, but something she chooses to wear as a symbol of her own identity. Initially, it would hardly be a stretch to suppose that her extensions of sympathy are somewhat self-satisfying that, be it consciously or not, her decisions to involve herself in international issues of social justice and display this to the world are motivated by a desire to feel and appear to be a good person. However, when faced with a threatening situation - ‘the undisguised hostility’ of her fellow citizens on a train crowded by anti-migrant men who she fears will hurt her - her compassion is revealed to be steadfast. She lives up to the principles that her badges convey, going against her instinctive ‘animal fear’ and carrying on to her original destination despite adversity.21 Ultimately, it is the persistence of these volunteer efforts that prompt the interventions that allow for the novel’s near utopian ending, and it is through this that a faith in the integrity, endurance and potential of human sympathy is demonstrated by the novel.

While this faith contrasts with Hallemeier’s less idealised conception of sympathy, we must consider that this reading of Hamid’s more optimistic depiction of human compassion could in itself fall under Hallemeier’s criticism. As mentioned above, the novel has been praised for prompting the reader to consider how they and the world around them could be better, yet this reader response could be conceived as evidence for Exit West’s 12 2018 Finalists, Aspen Words <http://www.aspenwords.org/programs/literary-prize/2018-finalists/> [Accessed: 4 January 2019].

13 Nussbaum in Hallemeier, p.94.

14 Smith in Hallemeier, p.89.

15 Hamid, p.135.

16 Hamid, p.113.

17 Hamid, p.135-136.

18 Hamid, p.104-105.

19 Hamid, p.106.

20 Hamid, p.105.

21 Ibid.

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provision of ‘an opportunity for self-satisfied but ineffective ‘connection’’. 22 Characters such as the volunteers aforementioned are ultimately emotive for self-satisfying reasons - because we like to believe that humanity is ultimately good, and because they allow us to imagine that we, put in the same position, would behave just as courageously, adhering to our principles in the face of adversity. Such characters do not prompt us to critically evaluate our relationship to the ‘other’ - an ‘other’ that is, as Hallemeier articulates, often rendered a ‘passive and emotive’ object of the reader’s sympathy- 23 but rather they allow for the reader to be falsely assured that such anevaluation is not necessary.

While Hallemeier may contest the stance that our responsibility to others hinges on ‘the reality of a sympathetic humanity’,24 suggesting instead that ‘the presence or absence of sympathy is immaterial to our responsibility to others’, it could be argued that the affirmations of a common humanity found in Exit West could have a greater influence over whether we actually recognize and fulfil our ‘responsibility to others’. While the conception of a narrative as ‘a means of ‘sympathising with another as ‘fully human’’ 25 is convincingly exposed as both reductive and problematic by Hallemeier, our ability to dehumanise or fail to recognise others as ‘fully human’ has been shown to have tangible and devastating political consequences. With media outlets and politicians alike using words such as ‘swarms’ or ‘floods’ to refer to refugee populations - 26 words that fail to recognise these groups as comprising of ‘fully human’ individuals - those seeking refuge are frequently dehumanised, making it easy for individuals to alienate immigrants or advocate for their reduced admittance without guilt. This failure to sympathise translates time and again from personal prejudice to political policy. Immigration was cited as one of the two main reasons why people voted leave in the Brexit referendum.27 Through a campaign largely centred on demonising immigrants, Donald Trump has been elected into an office that has enabled him to instate various travel bans on a number of majorityMuslim countries,28 as well as drastically decrease the admittance of refugees to the United States.29 Despite Hallemeier’s insistence that the ‘human’ should not be rigidly defined, Exit West arguably does not ‘question and test prevalent definitions of, or stories about, ‘humanity’’ 30 so much as it ascribes a level of shared experience to us all. The home of two of the protagonists- Nadia and Saeed- is pointedly left as an unnamed city in an unnamed country; being introduced only as an ambiguous ‘city swollen by refugees but still mostly at peace, or at least not openly at war’,31 and thus preventing the reader from entering

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22 Hallemeier, p.95.

23 Ibid.

24 Hallemeier, p.100.

25 Hallemeier, p.99.

26 David Shariatmadari, ‘Swarms, floods and marauders: the toxic metaphors of the migration debate’, The Guardian, 10 August 2015 <https://www.theguardian.com/commentisfree/2015/aug/10/migration-debatemetaphors-swarms-floods-marauders-migrants?CMP=share_btn_link> [Accessed: 6 January 2019].

27 Noah Carl, ‘CSI Brexit 4: People’s Stated Reasons for Voting Leave or Remain†’, Centre for Social Investigation, (2018), p.2 <http://csi.nuff.ox.ac.uk/wp-content/uploads/2018/04/Carl_Reasons_Voting.pdf.’> [Accessed: 7 January 2019].

28 BBC News, ‘Trump travel ban: What does this ruling mean?’, BBC News, 26 June 2018 <https://www.bbc. co.uk/news/world-us-canada-39044403> [Accessed: 6 January 2019].

29 Dara Lind, ‘The US has all but slammed the door on Syrian refugees’,Vox, 13 April 2018 <https://www.vox. com/2018/4/13/17233856/syria-attack-refugees-war-assad-trump> [Accessed: 6 January 2019].

30 Hallemeier, p.99.

31 Hamid, p.1.

into the narrative with any kind of cultural preconceptions. Despite the inclusion of various details that ubiquitously mark the city as having a more conservative culture (the lack of places where it is deemed acceptable for the young couple to be alone together after dinner,32 the necessity of Nadia ‘claiming that she too was a widow’ to evade her landlady’s suspicions about her decision to live alone)33 this cultural disparity does not act as a barrier against reader identification with the novel’s protagonists. Hamid largely utilises the novel’s first two chapters to instil a feeling of close acquaintance between his reader and his protagonists, focusing on the background and temperament of Saeed and Nadia and so allowing us to get to know them in a way that almost mimics the beginnings of a real-life friendship. We learn that Saeed is religious, though not orthodox in his practice, and that he is a hard worker (as is evidenced by his remorse at turning in subpar work despite the lack of reprimand). We learn that he is well educated and lives with his parents - a couple who married for love and had him late, and with whom he sometimes enjoys stargazing on their balcony with green tea.34 We learn that Nadia is determined to be independent, rides a motorcycle, and retains her childhood habit of doodling in margins. She is estranged from her family - a quiet mother and sister, and a father with a temper - due to an increasing divergence between their faith and attitudes that culminates in her moving out, unmarried, into a studio flat, of which she is very fond despite its small size.35 By intricately imbuing his characters with fraught and tender familial relationships, immaterial idiosyncrasies and individual journeys to (or from) faith, Hamid evokes cross-cultural identification by presenting their experiences as convincing, relatable and emotive. Despite Hallemeier’s criticisms somewhat complicating the term, there is perhaps no more suitable description of the fictional Saeed and Nadia than ‘humanised’.

I am not contesting the validity of Hallemeier’s assertion that ‘the presence or absence of sympathy is immaterial to our responsibility to others’.36 However, I do believe that an abstract consideration of the ethics of responsibility is perhaps a less effective means of shifting public opinion than the sympathetic engagement with characters of a compelling narrative such as Exit West. The novel impedes our very ability to other - to demonise or to dehumanise - by refuting the view that different groups of humans are intrinsically different from, or alien to, each other. This is perhaps best demonstrated by Nadia’s character, who, while not religious, is visibly marked as ‘other’ from the Western cultures she comes into contact with by her choice to remain ‘clad from the tips of her toes to the bottom of her jugular notch in a flowing black robe’.37 Those whose clothes establish a cultural or religious identity that is perceived as different - such as Muslim women who wear any form of veil - 38 are more likely to be the victims of discrimination and hate crime in Western countries, suggesting that the presumption of difference makes it easier to demonise and dehumanise.Yet Nadia is a relatable and compelling character. We 32 Hamid, p.22.

33 Hamid, p.24.

34 Hamid, p.3-14.

35 Hamid, p. 17-19.

36 Hallemeier, p.99.

37 Hamid, p.1.

38 Anoosh Soltani, ‘Confronting Prejudice Against Muslim Women in the West’, United Nations University, (2016) <https://unu.edu/publications/articles/confronting-prejudice-against-muslim-women-in-the-west.html> [Accessed: 6 January 2019].

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simply cannot view her as intrinsically different, thus the reader is forced to confront the prejudices they hold against those perceived as ‘other’. Through his portrayal of Nadia and Saeed as amongst the innumerable refugees using the doors to pursue better lives beyond their home country’s borders, Hamid makes it impossible to reduce them to a ‘swarm’, or to see them as anything less than complex, sympathetic individuals. Thus, while the narrative could undoubtedly be seen as ‘‘a means of ‘sympathising with another as ‘fully human’’,39 this mode of reading is established as having some practical benefit; namely that it holds the potential to reduce desensitisation to the global refugee crisis - an attitudinal change that, were it to occur on a great enough scale, could prompt compassionate political action.

Admittedly, the capacity for Hamid’s Exit West, or any novel for that matter, to encourage a shift in political action is in reality limited by a number of factors. While the novel may be publicly recognised for its ‘transformative power’, the conception of the novel as a political tool raises the question of who is being transformed. Simply put, we can safely assume the readership of Exit West not to be dominated by the individuals that hold the most prejudice against migrant populations; it is not anti-migrant Leave-voters or Trumpsupporters who will be prompted by glowing reviews in liberal publications, or shout outs from democrat politicians to read the novel, but rather individuals who already see themselves as liberal, cosmopolitan subjects. Thus it could be argued that novel reading does not help to create a cosmopolitan planet, but a self-affirming echo chamber for those with an already cosmopolitan world view.

Furthermore, the political impact of Hamid’s assertion of a common humanity is significantly limited if we see the novel as a work that ‘usurps, rather than reveals, the reality of ‘humanity’’.40 Hamid’s inclusion of the doors in the novel not only allows for the seismic dissolution of borders that drives the plot, but provides the structural freedom for the narrative to swiftly and seamlessly move between different cultural spheres, thus enabling the novel to explore the human experience on an ambitious scale. By peppering the primary narrative arc with short stories from ten additional countries, Exit West is transformed into a cosmopolitan microcosm of the human experience, confronting us with both the depth and breadth of humanity. Part of what makes the novel so compelling is that is evokes a feeling that the whole world is encapsulated in its pages, and our investment with this world is what makes it such a pleasure to read. However, if we concur with Hallemeier, this abstract investment in a fictional planet could be seen to usurp truly useful sympathetic engagement with the suffering of others, rather than translating into a progressive political response.

Far from being unaware of this limitation, I believe Exit West makes comment on the potential for readers to be desensitised to or unaffected by stories of suffering. With international media outlets in the novel commenting on the war, an international awareness of the conflict in Nadia and Saeed’s country is explicitly acknowledged, yet this awareness leads to no humanitarian action, with richer countries simple ‘building walls and fences and strengthening their borders’.41 Thus the novel demonstrates a disconnect

39 Hallemeier, p.99.

40 Hallemeier, p.98.

41 Hamid, p.70-71.

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between reading, sympathy and political action. Be it the description of the two old men who, despite the fact that ‘the elderly man could not speak Brazilian Portuguese and the wrinkled man could not speak Dutch’, gradually develop a romance through comfortable silences, tipped hats and paintings,42 or ‘the accountant in Kentish town’ who - left alone after the breakdown of a relationship and the departure of his daughter on her gap year - abandons his suicidal plans and his life in London after finding a door to a beach in Namibia,43 Hamid’s peripheral narratives of the novel are undeniably poignant and captivating additions to the novel. However, being somewhat irrelevant to the narrative of our protagonists, and rarely taking up more than a few pages, we quickly move on from these emotive glimpses into their lives, perhaps mimicking the manner in which we consume news of international atrocities: briefly experiencing sympathy before having our attention diverted elsewhere.This inability to meaningfully digest narratives of others’ lives is further emphasised by Hamid’s bizarrely abrupt portrayal of graphic deaths.When we are told that Nadia’s cousin has been blown ‘literally to bits, the largest of which [...] were a head and two-thirds of an arm’,44 or that a ‘stray heavy-calibre round’ hitting their car has taken ‘a quarter of Saeed’s mother’s head [...] while she was checking inside for an earring she thought she had misplaced’,45 we are shocked, but rendered incapable of true sympathy through the hyperbolically detached manner in which we are informed.

Despite this, the novel ultimately demonstrates a faith in human sympathy, in storytelling, and in the possibility of a cosmopolitan planet. Alongside his critique of the limited sympathetic engagement with international news, through Nadia and Saeed’s phones we are presented with another significant depiction of media that is far more romantic.

With them being described as ‘portals to each other and to the world’ 46 that work ‘as if by magic’, ‘transporting them to places distant and near, and to places they had never been and would never be’,47 Hamid’s repeated allegorisation of technology through the supernatural doors is hardly subtle. He seems to be suggesting that, used the right way, the exponential advancement in communication technology we are experiencing, and the international sharing of experience this enables, has the potential to diminish the significance of borders.

It is this more optimistic portrayal that best encapsulates the central thesis of the novel.

Hamid treats communication media within Exit West in the way that his novel and novels in general have long been treated - as a kind of magic door, allowing us access to other places, other cultures, and the lives lived beyond our borders in such a way that the idealised notion of a cosmopolitan planet begins to be reconceived as an achievable future. Thus, storytelling is championed for its ability to humanise the other, prompt genuinely and proactively moral behavior, and diminish the significance of borders more effectively than any abstract consideration of our moral responsibilities ever could.

42 Hamid, p.174-175.

43 Hamid, p.126-128.

44 Hamid, p.29.

45 Hamid, p.72.

46 Hamid, p.55.

47 Hamid, p.35.

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Bibliography Aspen Words, 2018 Finalists, Aspen Words <http://www.aspenwords.org/programs/ literary-prize/2018-finalists/> [Accessed: 4 January 2019] BBC News, ‘Trump travel ban: What does this ruling mean?’, BBC News, 26 June 2018 <https://www.bbc.co.uk/news/world-us-canada-39044403> [Accessed: 6 January 2019] Carl, Noah, ‘CSI Brexit 4: People’s Stated Reasons for Voting Leave or Remain†’, Centre for Social Investigation, (2018), 1-6 <http://csi.nuff.ox.ac.uk/wp-content/uploads/2018/04/ Carl_Reasons_Voting.pdf.’> [Accessed: 7 January 2019] The Express Tribune, ‘Mohsin Hamid’s Exit West makes it to Obama’s favourite books of 2017’, The Express Tribune, 1 January 2018 <https://tribune.com.pk/story/1597950/3mohsin-hamids-exit-west-makes-obamas-favourite-books-2017/> [Accessed: 4 January 2019] Hallemeier, Katherine, ‘Sympathy and Cosmopolitanism: Affective Limits in Cosmopolitan Reading’, Culture, Theory and Critique, 54.1 (2013), 88-101 Hamid, Mohsin, Exit West (Great Britain: Penguin Books, 2017) Lind, Dara, ‘The US has all but slammed the door on Syrian refugees’, Vox, 13 April 2018 <https://www.vox.com/2018/4/13/17233856/syria-attack-refugees-war-assad-trump> [accessed 6 January 2019] Nguyen,Viet Thanh, ‘March’s Book Club Pick: ‘Exit West,’ by Mohsin Hamid’,The New York Times, 10 March 2017 <https://www.nytimes.com/2017/03/10/books/review/exit-westmohsin-hamid.html> [Accessed: 4 January 2019] Shariatmadari, David, ‘Swarms, floods and marauders: the toxic metaphors of the migration debate’, The Guardian, 10 August 2015 <https://www.theguardian.com/ commentisfree/2015/aug/10/migration-debate-metaphors-swarms-floods-maraudersmigrants?CMP=share_btn_link> [Accessed: January 6 2019] Soltani, Anoosh, ‘Confronting Prejudice Against Muslim Women in the West’, United Nations University, (2016) <https://unu.edu/publications/articles/confronting-prejudiceagainst-muslim-women-in-the-west.html> [Accessed: 6 January 2019

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National Sovereignty and Human Rights in Just War Theory Samuel Miller

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Abstract In principle, just war theory places too much emphasis on national sovereignty, and not enough on human rights. In practice, however, there are sound moral reasons for this, as this is the most practical method of guaranteeing rights to self-determination, whilst also raising the threshold for destructive armed conflict. I will look at Russian intervention in the Crimea, and NATO intervention in Northern Iraq, arguing that these conflicts were justified under the guise of protecting human rights, thus evidencing the claim that greater emphasis on human rights could undermine rights to self-determination for states and lower the threshold for armed conflict to take place.

In this essay, I will argue that the jus ad bellum conditions of just war theory, in principle, place too much emphasis on national sovereignty, prioritizing the rights of states over the human rights of their citizens. Firstly, I will outline and briefly justify the just war condition of jus ad bellum, before moving on to consider the most widespread interpretations of jus ad bellum. Secondly, I will look at the argument that, in principle, jus ad bellum places too much emphasis on national sovereignty at the expense of human rights. Thirdly, however, I will argue that emphasising national sovereignty over human rights is, in practice, the best way of ensuring the nation’s rights to self-determination, as well as being an effective method of reducing the overall cost of armed conflict. To contextualise this, I will use the examples of Russian intervention in Ukraine, and NATO intervention in Northern Iraq, with these both being prime examples of how human rights have been used to justify armed conflict, thus highlighting the relevance of jus ad bellum in foreign policy today.

To begin, jus ad bellum is a series of seven conditions used to determine whether it is morally permissible to go to war. The first, and most foundational, is that war must have a just cause, responding to specific acts of wrongdoing. Traditional interpretations of this condition place a large emphasis on state sovereignty. This condition, as Lazar writes, is easy to justify, writing that ‘wars destroy lives and environments… For both our planet and its inhabitants, wars are truly among the very worst things we can do’.1 The high cost of warfare can therefore only be justified if it is in pursuit of a worthy cause. I will return to this point later in the essay, when considering the justification for jus ad bellum placing as much emphasis on state sovereignty as it does.

I will now consider the most widespread interpretations of just cause, considering Walzer’s legalist paradigm and the United Nations charter as well as the wider consensus view.

Just cause has been widely interpreted as the defence of a state against the aggression of another state. Walzer’s legalist paradigm is one interpretation of jus ad bellum, and states that:

1) There exists an international society of independent states.

2) It has a law that establishes the rights of its members - above all, the

rights of territorial integrity and political sovereignty.

3) Any use of force against the sovereignty of one state by another shall

constitute aggression and is a criminal act.

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1 Seth Lazar, ‘War’, The Stanford Encyclopaedia of Philosophy <plato.stanford.edu.> [Accessed: 6 November 2018].

4) Aggression justifies a war of self defence by the victim and a war of law

enforcement by any other member of the international society.

5) Nothing but aggression can justify war.2

The only crime that can be committed against states is aggression, with ‘everything else, as it were, a misdemeanor’.3 In so doing, this interpretation of just war theory places the most emphasis on defending the sovereignty of states. The only just cause for going to war under the legalist paradigm is a defence of a state against the aggression of other states, or a war of law-enforcement by the international society against those who commit aggression.

Similar themes, emphasising the importance of national sovereignty to just cause, are found in the UN charter. Article 2(4) states that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”4 Yet again, the state is inviolable, and the infringement of one state on the sovereignty of another is seen as the gravest offence a state can commit.

The only just cause for going to war is the defense of a state against the aggression of other states.

This is also seen in the wider consensus view put forward by bodies such as the International Commission on Intervention and State Sovereignty, writing that “the starting point... should be the principle of non-intervention. This is the norm from any departure has to be justified.”5 This leads to the conclusion that “military intervention for human protection purposes must be regarded as an exceptional and extraordinary measure.”6 State sovereignty, and non-intervention in the affairs of other states, is taken to be one of the most fundamental values of international relations, whilst intervention to protect human rights is only justified in the most extreme of circumstances.

In all three of these interpretations of jus ad bellum, we have seen that the only just causes for war can be a defence by a state against the aggression of another state, a war of lawenforcement by the international society against those who commit aggression, or in the most extraordinary cases of ‘supreme humanitarian emergencies.’ Just cause, in jus ad bellum, therefore places massive emphasis on the sovereignty of the state as something which is inviolable in anything but the most extreme circumstances.

I will now argue that the just war condition of jus ad bellum places too much emphasis on state sovereignty and is, in principle, morally indefensible. I will use Luban’s argument,

2 David Luban, ‘Just War and Human Rights,’ Philosophy & Public Affairs, 9 (1980), pp.160-181, p.162.

3 Michael Walzer, ‘Just and Unjust Wars: A Moral Argument with Historical Illustrations,’ 2nd edn. (New York: BasicBooks, 1980), p.51.

4 United Nations, Charter of the United Nations (1945) <un.org> [Accessed: 5 November 2018].

5 International Commission on Intervention and State Sovereignty (ICISS), The Responsibility to Protect (2000) <http:// responsibilitytoprotect.org/ICISS%20Report.pdf> [Accessed: 7 November 2018] p.31.

6 Ibid, p.32.

7 Luban, ‘Just War and Human Rights’, p.169.

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that the state has a derivative value, existing only to advance the interests of its citizens.7 This value is contingent, as a state which extensively violates the rights of its citizens loses legitimacy. I will argue that the jus ad bellum condition, with its focus on just cause, interpreted in such a limited way, places too much emphasis on national sovereignty, thereby neglecting human rights. The rights of states are derived from the rights of their citizens, and the consent of the citizens to be governed.8 This can be explained by distinguishing between the horizontal contract that exists between citizens, and the vertical contract that exists between citizens and the state. Luban explains that a horizontal contract, between members of a political community, leads to the creation of a nation, or people. It is a vertical contract, between the people and the state, which gives the state legitimacy.9 State legitimacy is therefore derived from the consent of its citizens to be governed, ‘for the nation is prior to the state’.10 The nation and the state are not the same thing. Instead, the only rights a state should have are those derived from its nation of citizens. These are fundamental human rights.

By emphasising sovereignty in the way that jus ad bellum does, the threshold for armed intervention becomes raised to that of a ‘supreme humanitarian emergency’.11 Armed intervention only becomes possible when there are widespread crimes against humanity, including things such as genocide, state breakdown, and humanitarian disasters. There is little scope to imagine a just cause within this framework that focuses on anything less than a total disaster where the costs of non-intervention would be massive. This means that armed intervention will never be permissible in states where there is a persistent abuse of human rights, for example through state terror and persecution, unless there is a supreme humanitarian emergency where large numbers of lives are immediately threatened. Citizens are treated as important derivatively. This is morally indefensible, as it is states that are derivatively important to their citizens.Therefore, Jus ad bellum should be focused on protecting individual rights, as this is where the rights of states are derived from. As Altman and Wellman argue, ‘the protection of the human rights of its members is the key moral task… of a state’.12 Any state that is not doing this should not be protected by international law from armed intervention to protect human rights. As the just cause condition protects the rights of states over the rights of the people living in them, it overemphasises national sovereignty.

However, whilst it is the case in principle that there should be less emphasis placed on state sovereignty in jus ad bellum, and more of a scope to declare war to protect human rights, in practice, there are sound moral reasons for placing as great an emphasis on state sovereignty as jus ad bellum does. Firstly, consider the argument for self-determination.

Lazar explains that ‘states protect a common life, made by their citizens over centuries of interaction. If the common life of a political community is valued by its citizens, then it is worth fighting for’.13 Therefore, the right to self-determination, the ability of citizens

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8 Luban, ‘Just War and Human Rights’, p.167.

9 Ibid, pp.167-168.

10 Ibid, p.168.

11 Andrew Altman and Christopher Heath Wellman, ‘From Humanitarian Intervention to Assassination: Human Rights and Political Violence’, Ethics, 118 (2008), pp. 228-257, p.231.

12 Altman and Wellman, ‘From Humanitarian Intervention to Assassination: Human Rights and Political Violence,’ p.233.

13 Lazar, ‘War’.

to choose their own political, economic and cultural systems, is inherently valuable.

Lowe argues that ‘the prohibitions or use of force against another State… are essential to the maintenance of the sovereignty… of States’.14 In order to maintain the right to self-determination, the sovereignty of states must be protected.15 If jus ad bellum placed less emphasis on the value of state sovereignty, it would become all too easy for states to create the pretext for invading other states, undermining each state’s right to selfdetermination. Therefore, jus ad bellum is justified in placing as great an emphasis on state sovereignty as it does. In the recent case of NATO intervention in Northern Iraq, persecution of the Yazidi minority would constitute a supreme humanitarian emergency.16 In the most egregious of cases, jus ad bellum therefore has enough flexibility to protect and preserve human rights.

By focusing jus ad bellum on the sovereignty of the state, and not on a more human rights-focused basis, the threshold for armed conflict is raised. Armed conflict is brutally destructive, with over 108 million people being killed in wars in the 20th century alone. It has wider negative impacts, reducing the birth-rate and leading to population deficits, as well as hugely detrimental environmental impacts and economic cost.17 Any convention to raise the threshold for armed conflict would therefore seem to be easily justified on utilitarian grounds.With jus ad bellum placing as much emphasis as it does on just cause and, by extension, national sovereignty, the threshold for armed conflict is raised. In practice then, it seems as though it places a deserved amount of emphasis on national sovereignty, as this makes it more difficult for states to justify launching incredibly destructive armed conflict. If armed conflicts are more difficult to enter into, we can expect that less armed conflicts will take place, and the total costs of armed conflicts to fall.

A newfound human rights-based focus in jus ad bellum would give policymakers another method of justifying armed conflict. Conflicts around the world are already justified under the guise of ‘protecting the rights of minorities,’ with this most recently including the Russian invasion of Eastern Ukraine.18 Were jus ad bellum to be expanded to incorporate a human rights-based just cause condition, then the international community would have weaker grounds on which to raise an objection to the Russian invasion of Eastern Ukraine. Each time armed intervention occurs, this threatens each individual state’s right to self-determination, with regards to choosing its own political, cultural and economic systems. This can be seen in Ukraine, with those citizens living in Eastern Ukraine losing their individual right to self-determination. At the same time, Ukraine has been entirely undermined by its more powerful neighbour. Placing as much emphasis on national sovereignty as jus ad bellum does therefore limits the number of justifications for military

14 V. Lowe, ‘International legal issues arising in the Kosovo crisis’, 2008, Memorandum to the Select Committee on Foreign Affairs, House of Commons, <https://publications.parliament.uk/pa/cm199900/cmselect/cmfaff/28/0020805.

htm> [accessed: 7th November 2018].

15 Ibid.

16 Lizzie Dearden, ‘Almost 10,000 Yazidis killed or kidnapped in Isis genocide but true scale of horror may never be known’, The Independent, 9th May 2017, <https://www.independent.co.uk/news/world/middle-east/isis-islamic-state-yazidisex-slaves-genocide-sinjar-death-toll-number-kidnapped-study-un-lse-a7726991.html> [Accessed: 7 November 2018].

17 Chris Hedges, ‘What Every Person Should Know About War’, The New York Times, 6 July 2003, <https://www.nytimes. com/2003/07/06/books/chapters/what-every-person-should-know-about-war.html> [accessed: 7th November 2018]; Jay E. Austin and Carl E. Bruch, The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (New York: Cambridge University Press).

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action, again raising the threshold for armed conflict. In conclusion, there are sound moral reasons for placing a strong emphasis on the role of national sovereignty in jus ad bellum. This ensures that the right to self-determination for each state is protected, and reduces the overall cost of war by raising the threshold for armed conflict. The ICISS (International Commission on Intervention and State Sovereignty) adopts this reasoning, writing that “all members of the United Nations have an interest in maintaining an order of sovereign, self-reliant, responsible, yet interdependent states.”19. Whilst the emphasis jus ad bellum places on state sovereignty is, in principle, morally indefensible, it can be morally justified in practice as it both defends the right to self-determination and reduces the overall cost of armed conflict.

18 J Stowell, ‘Russia’s Justification for the Annexation of Crimea’, Global Security Review, 7 April 2017 <https:// globalsecurityreview.com/russias-legal-plausible-justification-for-the-annexation-of-crimea/> [accessed: 7th November 2018].

19 International Commission on Intervention and State Sovereignty, The Responsibility to Protect, (2001) <responsibilitytoprotect.org> [accessed: 7th November 2018], p.31.

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Bibliography Altman, A. and Wellman, C.H., ‘From Humanitarian Intervention to Assassination: Human Rights and Political Violence’, Ethics, 118 (2) (2008), pp. 228-257 Austin, J.E. and Bruch, C.E., The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (New York: Cambridge University Press, 2000) Dearden, L., ‘Almost 10,000 Yazidis killed or kidnapped in Isis genocide but true scale of horror may never be known’, The Independent, 9 May 2017 <https://www.independent. co.uk/news/world/middle-east/isis-islamic-state-yazidi-sex-slaves-genocide-sinjar-deathtoll-number-kidnapped-study-un-lse-a7726991.html> [Date Accessed: 7 November 2018] Hedges, C., ‘What Every Person Should Know About War’, The New York Times, 6 July 2003 <https://www.nytimes.com/2003/07/06/books/chapters/what-every-person-shouldknow-about-war.html> [Date Accessed: 7 November 2018] International Commission on Intervention and State Sovereignty, The Responsibility to Protect, (2001) <http://responsibilitytoprotect.org/ICISS%20Report.pdf > [Accessed: 7 November 2018] Lazar, S., War, The Stanford Encyclopedia of Philosophy (2017) <plato.stanford.edu > [Accessed: 6 November 2018] Luban, D, ‘Just War and Human Rights’, Philosophy & Public Affairs, 9.2 (1980), pp. 160-181 Lowe, V., ‘International legal issues arising in the Kosovo crisis’, 2008, Memorandum to the Select Committee on Foreign Affairs, House of Commons <https://publications. parliament.uk/pa/cm199900/cmselect/cmfaff/28/0020805.htm> [Accessed: 7 November 2018]. Available from: publications.parliament.uk United Nations, Charter of the United Nations (1945) <un.org> [Accessed: 5 November 2018] Stowell, J., ‘Russia’s Justification for the Annexation of Crimea’, Global Security Review, 7 April 2017 <https://globalsecurityreview.com/russias-legal-plausible-justification-for-theannexation-of-crimea/> [Accessed: 7 November 2018] Walzer, M., Just and Unjust Wars: A Moral Argument with Historical Illustrations, 2nd Edition (New York: BasicBooks, 2008)

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Ble wyt tiâ&#x20AC;&#x2122;n byw?

Brianna Calderon

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I grew up on the Welsh-English border, at the very southern end of it. The border there is the River Wye or Gwy. Its fame depends on where you come from. If you’re Welsh it might be for it being the least Welsh part of Wales. If you’re middle class it might be for its natural beauty, its walking potential and Wordsworth’s poem Lines Composed a Few Miles Above Tintern Abbey. If you’re Welsh and middle class, you probably live there.

For eighteen years, the sixteen miles of the Wye Valley between Monmouth and Chepstow were my appendages. Every school day I’d catch the bus south, to Chepstow, and every Friday evening I’d be driven, and later would drive myself, north, to Monmouth for orchestra rehearsals.

To drive to Monmouth, you drive to the river then follow the river’s lead. The river here is tidal, the same year on year but never day on day. The border twists northward and the farther north, the quieter and calmer the river. At Bigsweir bridge the tide is a little less yet on an early spring morning it will still flood without rain. That is the first crossing into England. Then, you drive up the English side through Redbrook. Here, it stops being tidal at all. Once you reach the Lidl and the bridge back into Wales, the river only rises and falls with the rainfall.

Orchestra is not the only impetus for international travel. I also crossed the river at Brockweir, to reach friends, and the Severn Bridge, to reach shops. Sometimes, I walk across the Old Railway Bridge and cross the border with so little notice that signs do not even mark my passing.

My Gran lives in real Wales. To get there you turn your back on the River and drive up to the Brecon Beacons. Through Llansoy, past Lucy’s, wave to her little boy Archie as the car turns the corner. As you climb up that attitude of Connor’s at school, that fierce unjustifiable pride seems to make more sense. No one here travels for work. Goodbye neu da bo chi, os gwelch yn dda.

Monmouthshire, Sir Fynwy, the county used to swap between countries, sometimes Welsh, at others English. That border burns as shame and money. The shame came when I committed the traitorous act of being born in Bristol. It was the nearest hospital. It was always known who lived in England and who lived in Wales. You proclaimed your Englishness loudly by complaining about compulsory Welsh. bore da pawb, ga I fynd I’r ty back os gwelch yn dda? gwaith dosbarth, gwaith cartref, brechdanu neu cinio? You proclaimed your Welshness loudly by complaining about compulsory Welsh and quietly squirming at your own censure.

The money is part of a grander scheme, a Labour f*** you to that Lib Dem Conservative coalition. By living over the border, my student debt is less than half those who I can see from my bedroom window.

We haven’t turned out to be the most fluid bunch, those of us who grew up driving the Wye.The first cohort, ages three to eleven, are largely great lovers of nature, and London based. The next, twelve to eighteen, ventured to Swansea and Cardiff, only to find the sea merely a large river and easiest pickings at home. Somehow, very few of us live in England.

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When I cross the river to go to my parentâ&#x20AC;&#x2122;s house, thereâ&#x20AC;&#x2122;s a grandness that only occasionally used to be there.Travelling there, now the beginning of a trip, the colours are familiar and the estuary majestic. I drove over the Severn Bridge for the first time without tolls last time I was home. Empty booths made empty by automatic card machines now empty even of money allows the road to flow over the river.

Iâ&#x20AC;&#x2122;m most likely to come home via train, to see the river expand as I come down the border, North to South. As the train pulls in you see Chepstow Castle, itself built by the English to keep out the Welsh.

The Universal Declaration of Human Rights (Abridged) Article 1 Let man exist in the spirit of brotherhood. That spirit being the knowledge that he is the author of his and his own: his country, his property, his religion, his dignity, his personality, his family and his interests.

Article 2 Trust in him. For the family is the natural and fundamental group unit of society and is entitled to protection. His protection; from him and for himself. His family is within his control, and subject to his personality. Its continuation is dependent upon his rights.

Article 2b Within his family, motherhood and childhood are entitled to special care and assistance.

Article 3 Let him defend his privacy, his family, his home, and his correspondence but most of all defend attacks upon his honour or his reputation. He has had all the guarantees necessary to know that that which he defends is the truth.

Article 4 Let mankind be under his control.

NOTE: If you are affected by this content please refer to the handy UN guidelines on gender inclusivity at http://www.un.org/en/gender-inclusive-language/.

If you identify outside of the binary offered in this extract, you are welcome to submit enquires for further material but we cannot provide the means or contact details to enable you to do so.

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The River The sun of the Sonoran Desert makes skeletons and saints. Tatiana, she aware of this, made it to the border, shaking.

This border too is a line that has moved often, along its flanks are cities split straight in two.

Two names: Douglas and Agua Preita, Mexico and USA. Only at El Paso and Juarez are the lines less straight, following rocks.

This inhospitable land is a funnel, and she the sand, entering her shoe falling too quickly down the chute, stumbling.

They took her retinas and her fingerprints, they checked them for tell-tale traces of betrayal. “Why are you here?”

“My parents live here, I was visiting my Grandmother who lives in Campo Verde”.

“Look” spoke the customs officer “Sweetheart, you can’t enter, you are already here”.

She stared.

“Sweetheart look, we have evidence of your arrival”. The officer turned her screen around, pulling wires from their sockets, showing her.

She stared.

“You need two passports, one will not let both of you in”.

“I am alone”.

“But you already are here”.

She stared.

“Is or is not this man already you?”

The video started playing on the screen.

“My name is Mateo, I started racing when I was eight. I started with Go-Karts. My father ran a KIA Car Dealership”. They smiled “Speed is my nature, its core to my personality.

I’m honoured to be a test driver for Alfa Romeo, I trained hard for this moment. I want to move up, I am now in F3 next year my goal is to get to F2 then, F1.” His wet dark eyes.

Her dark wet eyes. Their?

She was there, had been there, they were driving. Steering, shaking, under her hands, she focused.They had the advantage.They knew what it was supposed to feel like.They had to try to assert themselves. She stretched out in front of the sun, just eclipsing Verstappen.

His camera angles were all wrong, they watched him crash. His line had been too straight, he hadn’t let the sediment fall where it felt right.

“I wish to trade”.

“To trade?”

“I wish for him to leave. I want to be here”.

“You cannot just trade. He is he.You are she.”

She envisioned her leap from him. Sun beat down. She floated down the Sonora, there was no need to steer. Only the river was real.

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Ürümqi, Xinjiang Eleanor Little Each day, bus-loads of Chinese tourists who have travelled from far and wide pull into Tianchi Lake, a once-beautiful local sight on the outskirts of Ürümqi which has now become a somewhat clinical attraction. Tourists flock to Ürümqi, as it slowly sheds the image of a dangerous region of China since violent ethnic rioting in 2009. From the historic Grand Bazaar to the Ürümqi Regional Museum containing waxworks of Xinjiang’s many ethnicities, the Chinese government certainly wants to present the image of a diverse and peaceful city with tight security.

China is often presented as a colossal and ubiquitous police state. Anyone who’s seen a Chinese police officer snoozing on the job or an ineffectual security clerk on one of its cities’ metros will challenge this notion. However, Ürümqi is different; borders have infiltrated daily life in Ürümqi.

It’s impossible to go to work, go shopping, or to travel within or around the city without facing a checkpoint. At these checkpoints, one will face an identity check and a facial recognition screening.

Coming from London, I couldn’t help but feel a little familiar with some of the discriminatory policies that seem so far away from our own Western liberal democracies. At one checkpoint, several Han ethnicity individuals and I were waved through by a policeman. Suddenly, the official raised his hand and told one woman to stop. Once through the checkpoint and out of earshot, I asked her why this had happened; she replied ‘because you are white and I am Uyghur.’ This logic isn’t dissimilar to the prejudice often seen in stop-and-search in the British capital.

However, in Ürümqi, the Orwellian nightmare has reached new heights. Two-storey police quarters dot most corners, countless police cars roam the streets menacingly, security cameras watch every move (also using facial recognition). On several occasions I was stopped by the police and asked just what the hell I was doing, whether I was taking a photo, on a bus or simply walking.

And yet, the people of Ürümqi go on with their daily lives. The markets heave and the restaurants bustle with many different ethnicities acting as a homogenous crowd. In this way, at least on a superficial level, Ürümqi gives off the air of a cohesive multi-ethnic society. However, while I stayed there Ürümqi made me question whether its citizens were living in a pervading atmosphere of security or fear. Nobody, of course, talked about the estimated million Uyghur’s detained in expansive ‘re-education centres’ – but there was no platform to do so.

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Cyprus: An Island Split in Two, The Dangers of the Creation of a Permanent Border Sotiris Pafitis

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Abstract This essay discusses the dispute among the Greek and Turkish inhabitants of the island of Cyprus. After briefly examining the historical circumstances which have led to the current situation, the effects of the island’s division will be discussed.The paper will touch upon the issues of the missing persons following the 1974 Turkish Invasion, the alienation between the two ethnicities and the limitation of the islanders’ rights. It will particularly focus on the freedom of movement, the free exercise of religious beliefs and the right to property.

Lastly, the dangers of a permanent separation will be looked into as well as solutions aimed at prevention.These issues will be looked at in furtherance of the argument that the international community’s response, as expressed through the years at the UN, has been inadequate and to the detriment of the prospect of peace.

The island of Cyprus in the Eastern Mediterranean, known to most people as a holiday destination, has an underlying darker reality. A constant threat of division has been lurking among the islanders who fear the creation of a permanent border between the two communities. The ‘Cyprus dispute’ first made world headlines in the 1950s when the inhabitants of the island sought their freedom from the British colonial rule.1 Having asked its colonial subjects to fight in the name of freedom during World War II, it remained hard for Britain to justify why they could not have theirs.2 In reality, a demand for selfdetermination by Greeks who constituted the majority of the population was contrary to the Empire’s geostrategic interests,3 which led to Prime Minister Eden denying any possibility of self-rule.4 The Greeks, wanted to exercise that right through enosis (union) with the Hellenic motherland, something that the significant Turkish minority strongly opposed.5 Britain gradually managed to shift this from a colonial issue to a national conflict and in 1960 granted the Cypriots independence leaving them to resolve their own problems, a solution that few, if any, wanted.

The island was split in two in 1974 as a result of a Turkish military invasion which followed a coup organised by the Greek junta.6 The invasion caused the internal displacement of 260,000 Turkish and Greek-Cypriots and the still-standing occupation of 36% of the territory of the Republic of Cyprus.7 In 1983 the Turkish Republic of Northern Cyprus (TRNC) declared its independence, although it has been recognised only by Turkey. Since then, the two entities and their respective populations of Greek and Turkish-Cypriots have lived separated by a UN buffer zone, not an official border, with little or no interaction between them. In 2004, the island came closer to reunification than ever before, but the proposed solution was largely rejected by a referendum among the Greek Cypriot community.8 Nonetheless, 2004 was also the year when the island entered the European Union in its entirety, even though the terms of the acquis communautaire, the EU’s body

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1 Andreas Varnavas, A history of the Liberation Struggle of EOKA (1955 – 1959), (The Foundation Of The Liberation Struggle Of EOKA (1955-1959), 2004), pp.55.

2 Ibid., pp.19-23. 3Edward Johnson, ‘Britain and the Cyprus problem at the United Nations, 1954–58’, The Journal of Imperial and Commonwealth History, 28.

3 (2008), 113-130.

4 Norman Lowe, Mastering Modern British History, 5th edn (Palgrave, 2017), p.562.

5 Christopher Paul, Clarke P. Colin, Grill Beth & Dunigan Molly, Paths to Victory (RAND Corporation, 2013), p.98.

6 William Mallinson, Cyprus: A Modern History (I.B. Tauris 2005), pp.80-83.

7 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Global Overview 2014 – People internally displaced by conflict and violence, Geneva, May 2014, p.48.

8 Lordos Alexandros, Reunifying Cyprus: The Annan Plan and Beyond (I.B. Tauris 2009), pp.163-169.

of laws, have been suspended in Northern Cyprus.9 Although talks between the leaderships of the two communities have been ongoing for decades and the United Nations’ Security Council has condemned on multiple occasions the illegal occupation by Turkey,10 the international community remains in all other aspects indifferent and inactive, to the detriment of the common people of the island.

The main aim of this article is to present negative effects that this separation line has on the rights of Cypriots. This paper will then argue that the inaction of the major world players has led the situation on the island to a point where the status quo has almost been consolidated. Finally, it will examine the prospects for the future as well as those of a permanent partition.

Daily lives of people and how the Buffer Zone affects them Apart from the displacement of a large number of people from both sides, the 1974 invasion resulted in the death of up to 9500 persons, both civilians and military personnel.11 Forty-five years later, almost 2000 persons are still considered missing.12 In 2007, a historic step was taken with the formation of the Committee of Missing Persons, which was tasked with trying to shed some light on the whereabouts of those persons.

It is not uncommon for families of missing persons to live in hope that their loved one is still alive, only to be found in a mass grave, mutilated and brutally tortured before being executed.13 As of 2019, the remains of 927 persons have been discovered. Nevertheless, it is argued that the division among the islanders stands as an obstacle in the work of the Committee. Many sites where mass graves are believed to exist remain beyond the reach of the research teams as they are considered to be of military importance and thus inaccessible.14 This is becoming an increasingly common occurrence with the effect of prolonging the distress of the victims’ families.

According to Art.3 of the Universal Declaration of Human Rights, everyone has the right to life, liberty and security of person.15 Furthermore, Art.1 of the Declaration on the Protection of All Persons from Enforced Disappearance provides that any act of enforced disappearance is an offence to human dignity, which places the victims outside the protection of the law and inflicts severe suffering on them and their families.16 Any act of enforced disappearance also violates, or constitutes a grave threat to the right to life.

These violations should bring into question the commitment of the world community to the integrity and application of human rights. Although this has been an ongoing issue for

9 George Kyris, ‘The European Union and the Cyprus problem: a story of limited impetus’, Eastern journal of European Studies, 3.1 (2012), 87-99, p.93.

10 United Nations Security Council (UNSC), Security Council resolutions 353, 354, 357-360 [Cyprus], 20 July 1974. 11 Tony Jaques, Dictionary of Battles and Sieges (Greenwood Press 2007), p.556.

12 Committee on Missing Persons in Cyprus, ‘Figures and Statistics of Missing Persons’, Committee on Missing Persons, 30 June 2015.

13 European Parliament, ‘Resolution on mass graves of the missing persons of Ashia at Ornithi village in the occupied part of Cyprus’ (2015/2551(RSP)).

14 George Psyllides, ‘Turkish army grants the Committee on Missing Persons access to restricted areas’, Cyprus Mail, 5 November 2015.

15 United Nations General Assembly (UNGA), Universal Declaration of Human Rights, 10 December 1948, 217 A (III), art.3.

16 United Nations Commission on Human Rights, Declaration on the Prot

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forty-five years, the response to it has been minimal, taking only the form of resolutions and declarations. The lack of decisiveness and the particularly slow response to the issue of the missing persons is evidenced by the fact that it took thirty-three years for the aforementioned Committee to be enabled to carry out its task. As argued by Bolukbasi17 this tactic of cooling-off periods can lead, in some cases, to the dispute withering into insignificance and becoming ripe for settlement. Nonetheless, in the case of Cyprus the lack of positive actions towards a solution has led the two sides to adopt more rigid and uncompromising positions, gradually diminishing prospects for reasonable compromise. The choice of the international community, with the UN as its primary organ, to impose this artificial division of the island has only deteriorated the situation.

This unnatural separation line caused by reckless leaders from both sides, encouraged by their respective motherlands, fails to take into consideration the idiosyncrasies of the peoples of the island. By forcing the two communities to follow different paths for such a long time through a cultural separation, which stems from the aforementioned physical one, the prospect of a compromising solution has got weaker. Although some progress has been made, one has to ask if this is sufficient and whether some accountability must be established for the damage done by the decades-long delay.

Moreover, the existence of the separation line has been the main reason behind the violation of the rights of the survivors of the 1974 invasion. Until the opening of the first crossing points at the start of 2003, the right of Cypriots to move between the occupied and the free side of the island was non-existent. Consequently, the interaction between the two communities had been limited, which led to the problem getting better rooted and to the alienation between the Turks and the Greeks. Again the strengthening of the status quo can be attributed to the inaction of the United Nations which did not take any steps to bring closer the two communities after the imposition of the ‘border’ and instead relied solely on hosting talks between the leaderships of the two sides. Such course of action can only be characterised as incompetent. As is obvious, in the absence of any interaction between the two communities, the will for reunification will give way to the fear of co-inhabitants now unknown to each other.

If one examines the current situation, it is easy to see that the freedom of movement between the two sides is yet to be restored.18 People on the island can only cross sides through designated passage points which are heavily guarded by police or even military personnel. Their freedom is further restricted by the requirement to show some form of identification in order to be allowed through. This restriction has caused a lot of controversy among locals who consider it utterly absurd and ill-founded to be required to show their passport, as if they are travelling abroad, in order to be able to move between two parts of their own country.

In addition, the potential presence of landmines can have a negative effect on a number of rights, including the right to life. In its resolutions 2338 (2017) and 2369 (2017),19 the

17 Suha Bolukbasi, ‘The Cyprus Dispute and the United Nations: Peaceful Non-Settlement between 1954 and 1996’, International Journal of Middle East Studies, 30.3 (1998), 411-434.

18 Cyprus v. Turkey, 25781/94, Council of Europe: European Court of Human Rights, 10 May 2001, §42.

19 UNSC, S/RES/2338 & 2369 [Cyprus], 26 January & 27 July 2017

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Security Council noted the continued danger posed by mines in Cyprus. The Council called on both sides to allow access to minesweepers and to facilitate the removal of the remaining mines within the buffer zone, and urged both sides to extend demining operations outside the buffer zone. Until now 26 square kilometres remain covered with landmines, which endangers the everyday lives of the people near the zone and acts as an obstacle to the further liberalisation of movement between the two sides. Lastly, the restriction of movement has acted as a deterrent for the free exercise of the islanders’ religions. The predominantly Muslim occupied territory has some of its most important sites in the area controlled by the Republic of Cyprus, including the Hala Sultan Tekke, the third holiest site in the Muslim world.20 Correspondingly, the Greeks have some very important Orthodox Christian churches and monasteries in the occupied north, whose operation is not only restricted by the occupying forces, but they are often desecrated, resulting in various ancient religious works of art being stolen and illegally sold abroad.21 Therefore, it can be seen that the presence of this ‘border’ not only restricts the right of free exercise of religion but has also left a regulatory lacuna which is a thriving ground for illegal art dealers.

Right to Property As it was mentioned already the invasion and separation of the island led to approximately 200,000 Greek Cypriots and 60,000 Turkish Cypriots having to abandon their properties and becoming internal refugees. It also resulted in the loss of 70% of the island’s wealth-producing resources, including the loss of 65% of its hotels and tourist accommodation and a loss of 46% of infrastructure for the industrial sector. While the year 1974 was a political and financial disaster for the Greek Cypriots, for the other major ethnic group the reverse was true.22 From that point onwards refugees from both sides had to live with what they had managed to carry with them when they left their homes in the occupied territory, many of which were given to settlers from Turkey.23 This action eventually resulted in altering the demographics of the island and the obscuration over the legal status of those properties.

Clarity over the matter was brought by the European Court of Human Rights (ECHR) which ruled in the case of Loizidou v Turkey that the claimant, and persons like her, have the right to return to their former properties and that, despite all the laws passed in the TRNC, they continue to retain title to their former lands. The ECHR ruled that Turkey was responsible for the violation of Mrs Loizidou’s human rights, that she should be allowed to return to her home and that Turkey should pay substantial damages to her, inter alia, for the loss of enjoyment of her home.24 This landmark case opened the floodgates for many other applications in both the ECHR and the Court of Justice of the European Union (CJEU), but in reality little has changed.

This is because in 2003 the TRNC passed law No. 49 which set up a Compensation Commission.

The Commission offers a much less expensive and time-consuming solution to Greek-Cypriots.

Instead of litigating for as long as a decade in European Courts for their property rights to be recognised, they can exchange those claims for the alleged value of their properties.

20 George E. Bowen, Assessing the Isle of Cyprus (University of Tennessee 2003).

21 Jean Christou, ‘Last hope for return of looted treasures’, Cyprus Mail, 15 March 2015.

22 Murat Metin Hakki, ‘Property wars in Cyprus: the Turkish position according to international law’, The International Journal of Human Rights, 15.6 (2011), 847-857, p.848.

23 Adrienne Christiansen, ‘Crossing the Green Line: Anti-Settler Sentiment in Cyprus’, Macalester International, 15 (2005), 154 – 174, p.155.

24 Application No. 15318/89 .

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It is worth mentioning that even in those cases where the right to return was recognised and restitution has been awarded, not one of the applicants has actually chosen to cross the ‘border’. This phenomenon can be attributed to (i) the inevitable changes this would bring to their everyday life; and (ii) the fear of living in an unrecognised state, largely controlled by Turkey which often discriminates against minorities in the occupied territory.25 In order to maintain the demographic balances in the island and to allow the inhabitants of the island to have the opportunity to decide freely whether they want to return or sell their property, it is essential that the necessary socio-political conditions are in place. It is the author’s suggestion that no change should be made to any legal title before the peaceful settlement of the issue. If this course is maintained Greek-Cypriots will have nothing left to connect them with the lands under occupation and vice versa for Turkish-Cypriots.This is nothing more than an indirect method of eventually partitioning the island and imposing an inhumane border.

The Danger of the Permanent Border - What Lies Ahead?

According to Kaufmann, it is impossible for groups of people who have been in constant conflict for a prolonged period of time to come together and form a common society.26 Indeed, ethnic wars both hypernationalist mobilisation rhetoric and actual atrocities harden ethnic identities to the point that cross-ethnic political appeals become futile.27 As a result, the risk of having a permanent partition on the island can only become greater as time passes by. It is the responsibility of the international community, whose commitment to the preservation of human rights and justice is constantly made clear, to foster an environment of gradual reconciliation and the building of trust.This is because ‘as long as either side fears, even intermittently, that it will be attacked by the other, past atrocities and old hatreds can easily be aroused’.28 In the light of the recent geopolitical changes in the Middle East and Eastern Mediterranean, extremist nationalist approaches are becoming more common. The possibility of further distancing the two communities on the island will not only be antithetical to the political stability in the region, but it is possible that will spark new intercommunal violence. Such incidents can only be harmful to the human rights of the island’s inhabitants. As Kumar argues, the process of partition is hardly an answer to the issue and it will create more problems than it will address.29 Hence, the only reasonable course of conduct for the future is tearing down the walls separating the Cypriots. Only through the abolition of this border of intercommunal hatred, and the building of connecting bridges can this island find peace. The international community should encourage the creation of inter-ethnic groups that will foster communication between the two sides and eventually lead to common understandings over this issue.As Varshney argues, such bi-communal networks are necessary to prevent any more violence.30 The author further encourages the creation of a common Cypriot identity, which will not override the cultural identity of the

25 UNGA, Report of the Committee on the Elimination of Racial Discrimination, (A/56/18), §§256-277; Alexia Solomou, ‘Cyprus v Turkey’, The American Journal of International Law, 109.2 (2015), 393-399, pp.393-394.

26 Chaim Kaufmann, ‘Possible and Impossible Solutions to Ethnic Civil Wars’, International Security, 20.4 (1996), 136-175. 27 Nicola Solomonides, ‘One State or Two? The Search For A Solution To The Cyprus Problem’, International Public Policy Review 4.1 (2008), 61-76.

28 Supra n.10 at p. 174.

29 Radha Kumar, ‘The Troubled History of Partition’, Foreign Affairs, 76.1 (1997), 22-34.

30 Ashutosh Varshney, ‘Ethnic Conflict and Civil Society India and Beyond’, World Politics 53.1 (2001), 362-398, p.363.

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islanders, whether Greek or Turkish. Instead such an identity should accompany their cultural and religious background in the same way that the Flemish and Walloons are both Belgians. Focusing on what unites rather than what divides can be the sole path towards peace and prosperity.

Conclusion To conclude, the presence of this imposed ‘border’ has had multiple effects on the lives of Cypriots. The prolonged delay in the search for those gone missing after the 1974 invasion has been the cause of anguish for their families and any further delay due to the present separation will only amplify that suffering. Additionally, the infringement of the islanders’ freedom of movement has not been addressed sufficiently by the opening of the crossing points. It is only through the removal of all dividing barriers on the island, including the life-threatening landmines, that these rights will be adequately protected.

The island’s division has also been detrimental to religious freedom either through the limited access people have to religious sites or the pillaging of such places. Furthermore, the loss of many properties and the confusion that is now present due to the transfer of many settlers from mainland Turkey are damaging to the Cypriots’ rights. Even though international courts have recognised the illegality of the actions of Turkey, the creation of the Compensation Committee can only lead to the consolidation of the status quo.

Finally, any further distance between the two communities will permanently damage any prospects for permanent peace on the island. Instead the international community should concentrate its efforts on sustaining constant channels of communication between the Turks and the Greeks to develop mutual trust.

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Bibliography Bolukbasi Suha, ‘The Cyprus Dispute and the United Nations: Peaceful Non-Settlement between 1954 and 1996’, International Journal of Middle East Studies, 30.3 (1998), 411434 Bowen, George E., Assessing the Isle of Cyprus (University of Tennessee, 2003) Christiansen Adrienne, ‘Crossing the Green Line: Anti-Settler Sentiment in Cyprus’, Macalester International, 15 (2005), 154 – 174 Christou, Jean, ‘Last hope for return of looted treasures’, Cyprus Mail, 15 March 2015 Committee on Missing Persons in Cyprus, ‘Figures and Statistics of Missing Persons’ (Committee on Missing Persons, 30 June 2015) Cyprus v. Turkey, 25781/94, Council of Europe: European Court of Human Rights, 10 May 2001 European Parliament, ‘Resolution on mass graves of the missing persons of Ashia at Ornithi village in the occupied part of Cyprus’ (2015/2551(RSP)) Hakki, Murat Metin, ‘Property wars in Cyprus: the Turkish position according to international law’, The International Journal of Human Rights, 15.6 (2011), 847-85 Internal Displacement Monitoring Centre, Norwegian Refugee Council, Global Overview 2014 – People internally displaced by conflict and violence, Geneva, May 2014 Jaques, Tony, Dictionary of Battles and Sieges (Greenwood Press, 2007) Johnson, Edward, ‘Britain and the Cyprus problem at the United Nations, 1954–58,’ The Journal of Imperial and Commonwealth History, 28.3 (2000), 113-130 Kaufmann, Chaim, ‘Possible and Impossible Solutions to Ethnic Civil Wars’, International Security, 20.4 (1996), 136-175 Kumar, Radha, ‘The Troubled History of Partition’, Foreign Affairs, 76.1 (1997), 22-34 Kyris George, ‘The European Union and the Cyprus problem: a story of limited impetus’, Eastern Journal of European Studies, 3.1 (2012), 87-99 Loizidou v Turkey Application No. 15318/89 Lordos, Alexandros, Reunifying Cyprus: The Annan Plan and Beyond (I.B. Tauris, 2009) Lowe, Norman, Mastering Modern British History, 5th edn (Palgrave, 2017) Mallinson, William, Cyprus: A Modern History (I.B. Tauris, 2005)

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Paul, Christopher, Clarke P. Colin, Grill Beth & Dunigan Molly, Paths to Victory (RAND Corporation 2013) Psyllides, George, ‘Turkish army grants the Committee on Missing Persons access to restricted areas’, Cyprus Mail, 5 November 2015 Solomonides, Nicola, ‘One State or Two? The Search For A Solution To The Cyprus Problem’, International Public Policy Review, 4.1 (2008), 61-76 Solomou, Alexia, ‘Cyprus v Turkey’, The American Journal of International Law, 109.2 (2015), 393-399 United Nations Commission on Human Rights, Declaration on the Protection of All Persons from Enforced Disappearance, 28 February 1992, E/CN.4/RES/1992/29 United Nations General Assembly (UNGA), Report of the Committee on the Elimination of Racial Discrimination, (A/56/18) UNGA, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) United Nations Security Council (UNSC), Security Council resolution 2338 [Cyprus], 26 January 2017 UNSC, S/RES/2369 [Cyprus], 27 July 2017 UNSC, S/RES/353 [Cyprus], 20 July 1974 UNSC, S/RES/354 [Cyprus], 20 July 1974 UNSC, S/RES/357 [Cyprus], 20 July 1974 UNSC, S/RES/358 [Cyprus], 20 July 1974 UNSC, S/RES/359 [Cyprus], 20 July 1974 UNSC, S/RES/360 [Cyprus], 20 July 1974 Varnavas, Andreas, A history of the Liberation Struggle of EOKA (1955 – 1959) (The Foundation Of The Liberation Struggle Of EOKA (1955-1959), 2004) Varshney, Ashutosh, ‘Ethnic Conflict and Civil Society India and Beyond’, World Politics 53.3 (2001), 362-398

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Ajnabia Alina Wahab Inspired by Marjane Satrapi’s graphic novel ‘Persepolis’. Ajnabia is the Arabic word for foreigner.

Ajnabia is a graphic short story the encapsulates what it was like for me as a young girl to be a foreigner in Saudi Arabia. I lived there from the ages of 10 to 18.

Making the transition from girlhood to womanhood in a country renowned for a lack of women’s rights was an eye opening experience. I would like to highlight that as it is an outsider’s perspective, the criticism of women’s rights there should be taken with a grain of salt. Particularly in the last few years, things have begun to change for women.

No one but Saudi women themselves should be allowed to decide what their rights will look like in the future. The purpose of this comic is not to impose Western feminism on the East, but to draw attention to the basic standards of freedom that were not being met during my time there.

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Borderless Networks and Disappearing Front Lines: Human Rights and Cyber Warfare Abhaya Ganashree

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Abstract With the development of technology, borders can be said to be disappearing as cyber warfare is now replacing traditional methods of warfare. Following the widespread WannaCry attack launched in 2017, cyber warfare features prominently on the agenda of policy makers and military leaders around the world, as it is increasingly being used by states. Although the perpetrators of the attack have been charged in the US, the wider impact on the human rights of civilian populations has gone unaddressed. Keeping this in mind, this article will focus on the implications to international humanitarian law and identify the gaps that need to be filled to achieve its goal: uphold human dignity and prevent unnecessary human suffering. First, this article will contextualise the application of IHL to cyber warfare.Then, the author will analyse how to determine whether the cyber operations have been carried out in the context of and in nexus with armed conflicts. Once determined, the article identifies the principle of distinction and neutrality as being of major significance and evaluates their applicability in light of the WannaCry attack. In conclusion, the article recommends amendments to the interpretation of IHL to accommodate the changing nature of warfare.

In May 2017, a global cyber-attack targeted Microsoft computers across the globe, effectively crippling the NHS and significantly disrupting patient care. The so-called WannaCry hack shut down hundreds of thousands of computers with a message from hackers demanding ransom payments.1 Acknowledging that such threats are imminent, the French Defence Secretary stated that ‘if a threat is over the heads of all of us, that’s the cyber threat and it has no border’.2 Developments in technology, such as the invention of drones and crucial information systems,3 have revolutionised international affairs. Therefore, it comes as no surprise that states have included cyber warfare in their military planning and organisation.4 These range from states with very advanced statements of doctrine and military organisations envisaging the employment of hundreds or thousands of individuals to simpler arrangements incorporating cyber-attack and cyber warfare into existing capabilities for electronic warfare. These operations are also being devised to reduce the loss of human life.5 For the purposes of this article, ‘cyber warfare’ refers to cyber operations conducted in or amounting to an armed conflict. Traditional wars of state against state have considerably reduced in number. This is because the capacity of state actors to unilaterally employ force against other states has been considerably weakened due to

1 Department of Health, National Audit Office, Investigation: WannaCry cyber-attack and the NHS, <https:// www.nao.org.uk/wp-content/uploads/2017/10/Investigation-WannaCry-cyber-attack-and-the-NHS.pdf> [Accessed: 19 February 2019].

2 Gareth Corfield, ‘En garde! ‘Cyber-war has begun’ – and France will hack first, its defence sec declares’ The Register <https://www.theregister.co.uk/2019/01/22/france_cyber_war/> [Accessed: 8 March 2019].

3 Kaldor, New and Old Wars - Organized Violence in a Global Era, 6 (Polity Press, 3rd ed. 2012).

4 Center for Strategic and International Studies, Cybersecurity and Cyberwarfare – Preliminary Assessment of National Doctrine and Organization, UNIDIR Resources Paper, 2011, available at: http://www.unidir.org/ files/publications/pdfs/cybersecurity-and-cyberwarfare-preliminary-assessment-of-national-doctrine- andorganization-380.pdf [Accessed: 18 February 2019].

5 Scott Shane, ‘Cyberwarfare emerges from shadows of public discussion by US officials’, The New York Times <https://www.nytimes.com/2012/09/27/us/us-officials-opening-up-on-cyberwarfare.html> [Accessed: 18 February 2019].

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the destructiveness of new military technology.6 Although directed at computers, such operations could cause a tremendous degree of human suffering. In times of armed conflict, in particular, there are grounds for concern that cyber operations will be used to undermine the functioning of the critical infrastructure of crucial importance to the civilian population. However, the borderless network of the Internet has caused the disappearance of front lines. This is worrisome, as mere state action cannot then effectively prevent against the threat.7 The humanitarian and security concerns surrounding cyber warfare have become increasingly significant since the WannaCry attack.8 This article will focus on attacks of critical infrastructure such as social security and patient information which are a direct threat to the lives and well-being of civilians.Although the North Korean hackers believed to be responsible for the attack have been charged in a domestic court, the humanitarian suffering caused has been ignored.9 As the concerns raised are of major significance to the modern battlefields, this article seeks to analyse the prevailing norms of international humanitarian law (IHL).10 Keeping in mind the human rights concerns this issue raises, the article will focus on the implications to IHL and identify the challenges that will have to be overcome in order to preserve human dignity and prevent unnecessary human suffering. First, this article will highlight the difficulties in applying the long-established rules of IHL to hostilities involving cyber operations. Then, this article will analyse how to determine whether the cyber operations have occurred within a situation of armed conflict, as IHL only applies in that context. Once this has been determined, the article identifies the principles of distinction and neutrality as being significant and evaluates them in light of the WannaCry attack.

In doing so, the article finds that although the principles of distinction and neutrality lend themselves to cyber warfare to a certain extent through analogy, they need to be developed in order to achieve the goals of IHL and regulate the disappearing front lines.

The Evolution of International Humanitarian Law If the law is to remain effective over time, it must be responsive to context. When significant contextual transformations take place, new norms emerge, old norms expire, and their interpretation shifts. The speed of such an evolutionary process is influenced by a number of actors – non-governmental advocacy groups, international organisations, international tribunals and political action groups.11 However, they are principally driven by states, as was famously laid down in the Lotus case.12

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6 Kaldor, supra note 3 7 Daniel Dobrygowski, ‘What would a cyberwar look like?’ WEForum <https://www.weforum.org/ agenda/2018/04/what-would-a-cyberwar-look-like/> [Accessed: 8 March 2019].

8 Christakis Theodore and Karine Bannelier, ‘Reinventing Multilateral Cybersecurity Negotiation after the Failure of the UN GGE and Wannacry: The OECD Solution,’ EJIL Talk! <https://www.ejiltalk.org/reinventing-multilateralcybersecurity-negotiation-after-the-failure-of-the-un-gge-and-wannacry-the-oecd-solution/> [Accessed: 19 February 2019].

9 Christopher Bing and Sarah Lynch, ‘U.S. charges North Korean hacker in Sony, WannaCry cyberattack’, Reuters < https://www.reuters.com/article/us-cyber-northkorea-sony/u-s-charges-north-korean-hacker-in-sony-wannacrycyberattacks-idUSKCN1LM20W> [Accessed: 18 February 2019] [hereinafter Reuters].

10 Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 Martens Nouveau Recueil (3d) 461; Additional Protocol I, art 36.

11 Michael Glennon, ‘The Road Ahead: Gaps, Leaks and Drips’, INT’L L. STUD., 83. (2013) 362.

12 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, 144 (Sept. 7).

Explained broadly, international law represents the consensus among states as to rules that govern their interactions.13 States consent by opting into treaty regimes or by engaging in practices out of a sense of obligation (opinio juris) that when combined with the practice of other states crystallises into customary international law.14 As the consent of States reflects their interests, their conduct is dictated by their selfish interests as well as principled values. In the field of IHL, States have agreed to limitations on their freedom in the battlefield to achieve humanitarian ends. Although the prevailing legal consensus is that restrictions should apply to the use of cyber weapons during times of war, no apparent provision in international law explicitly bans or regulates their use.15 A UN Working Group of Governmental Experts (GGE) was set up to discuss the development in the field of information and telecommunications in the context of cybersecurity.16 The group failed to reach a consensus on whether IHL applies to the cyberspace.17 Academics have argued that the existing framework is not well-suited to cope with the new paradigm of cyber warfare and have called for the legislation of a new convention to regulate their use.18 Others, including the US government, have opposed the need for such a convention and have argued that the current framework could be applied to cyber warfare through analogy.19 This article will argue that IHL applies to cyber warfare through analogy, but it must evolve to accommodate developments in technology.

Within the situation of armed conflicts The IHL framework only applies within the situation of armed conflict. Legislative change in IHL is likely to be slow as they evoke contrasting positions among States due to the politicisation of the subject matter. The cardinal principles were defined broadly to accommodate this. However, in the case of cyber warfare, their capacity to accommodate change may prove insufficient. The IHL framework was designed in relation to methods and means of warfare involving the use of force in the physical world, and therefore is not directly applicable to manipulations of data in cyberspace.20 At the outset, it might seem that it would be easy to establish the nexus with an armed 13 Michael Schmitt, ‘The Law of Cyber Warfare: Quo Vadis?’ Stan. L. & Pol’y Rev., 25 (2014) 269, 272.

14 Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1055; North Sea Continental Shelf (Ger. v. Den.; Ger. v. Neth.), 1969 I.C.J. 3, 77 (Feb. 20).

15 Knut Dormann, ‘Computer network attack and international humanitarian law, International Committee of the Red Cross’, May 19, 2001, para. 29 <http://www.icrc.org/web/eng/ siteengO.nsf/htmlall/5p2alj> [Accessed: 19 February 1019].

16 David Fidler, ‘The UN Secretary-General’s Call for Regulating Cyberwar Raises More Questions Than Answers’, <https://www.cfr.org/blog/un-secretary-generals-call-regulating-cyberwar-raises-more-questionsanswers> [Accessed: 19 February 2019].

17 Michael Schmitt and Liss Vihul, ‘International Cyber Law Politicized: The UN GGE’s Failure to Advance Cyber Norms’, Just Security <https://www.justsecurity.org/42768/international-cyber-law-politicized-gges-failureadvance-cyber-norms/> [Accessed: 19 February 2019].

18 Davis Brown, ‘A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict’, Harv. Int’l L.J. 47 (2006) 179 [hereinafter Brown].

19 Dept. of Defense Office of Gen. Counsel, ‘An Assessment of International Legal Issues in Information Operations’ 11 (1999), http://www.maxwell.af.mil/ au/awc/awcgate/dod-io-legal/dod-io-legal.pdf (hereinafter DOD Assessment); Scott, Roger, ‘Legal Aspects of Information Warfare: Military Disruption of Telecommunications’, Naval L. Rev. 45 (1998) 57,59.

20 Eitan Diamond, ‘Applying International Humanitarian Law to Cyber Warfare (2014) Law and National Security: Selected Issues 67’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3093068> [Accessed: 18 February 2019] [hereinafter Diamond].

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conflict in relation to cyber operations occurring against the backdrop of an existing armed conflict. However, even in such situations, it is by no means self-evident. It might be difficult to ascertain that the operations are related to the armed conflict. Further, due to the nature of cyber operations, it may be difficult to identify the actor carrying them out and to establish that it was conducted on behalf of a party to the conflict.21 As long as the connection to the armed conflict remains in doubt, so does the applicability of IHL. The cases where cyber warfare does not occur alongside other forms of hostilities, as in the case of the WannaCry attack, can be more problematic, and questions of whether the cyber operations themselves amount to an armed conflict arise. In identifying this it is important to distinguish between the two types of armed conflicts in international law – international armed conflicts, occurring between states, and non-international armed conflicts, where at least one party is a non-state actor.

International armed conflicts occur when there is a resort to armed force between states.22 Therefore, cyber warfare can only be said to occur in the context of an international armed conflict if the a) cyber operations are attributable to a state and b) they amounted to a resort to armed force against another state.

Although such attribution is difficult, it has been suggested that the application of certain legal presumptions could mitigate this.23 For example, a state could be presumed to be responsible for any cyber-attack originating from its governmental infrastructure although there is no basis for this in international law. Moreover, the difficulty in shielding computer infrastructure from such manipulations would place an unreasonable burden on states (this will be elaborated on later under the principle of neutrality). Besides, the scope of a state’s legal responsibility for cyber operations is also affected by the potential attribution of operations conducted by private groups within their territory to them.24 After a year-long investigation in the case of WannaCry, the attack has been attributed to elite North Korean hackers, the ‘Lazarus Group’.

The general rule in international law in this regard is that the action is attributable to the state if the action has been carried out under the instructions of or under the direction or control of that State.25 If the authoritarian nature of a state such as North Korea is taken into consideration, it is possible that the state may have exercised effective control over specific operations or had ‘overall control’, as is required.26 The second criterion, namely that the action amounted to a use of force against another 21 Id. 22 ICTY, Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 [hereinafter Tadic], Para. 70.

23 Cordula Droege, ‘Get off My Cloud: Cyber Warfare, International Humanitarian Law, and The Protection of Civilians’ International Review of the Red Cross 886 (2018) 533, 543.

24 Tallinn Manual on the International Law Applicable to Cyber Warfare 211 (Michael N. Schmitt ed., 2013) [hereinafter Tallinn Manual], Rule 7.

25 International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts,Yearbook of the International Law Commission, 2001,Vol. II (Part Two) at Article 8.Diamond].

26 International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) Judgment of 27 June 1986, paras. 115–116. ;ICTY, Prosecutor v Dusko Tadic, IT-94-I, Appeals Chamber Judgement of 15 July 1999, para 120.

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state, is also difficult to establish, as it implies the use of physical force.There is agreement among analysts that computer network attacks that lead to physical destruction parallel to the destruction produced by attacks employing kinetic force would amount to an armed attack.27 However, cyber operations are capable of effecting other equally destructive forms of harm such as the disruption of the supply of vital resources or critical information systems.

If this requirement is read in line with IHL’s humanitarian purpose, cyber operations like WannaCry producing grave humanitarian consequences should be considered to be within the ambit of ‘armed force’.

If either of the above two criteria fails to be satisfied, an international armed conflict is not said to exist, although a non-international armed conflict might.The latter is said to exist if the armed violence involves at least one non-state actor where the a) the parties involved satisfy a minimum level of organisation and b) the armed violence reaches a minimum level of intensity.28 Therefore, although Lazarus Group may fail to satisfy the test for state responsibility, they may better satisfy the criteria of a non-international armed conflict as a non-state actor.

In the context of cyber warfare, the virtually organised groups generally active in cyberspace will rarely, if ever, satisfy the requirement for organisation. This includes a level of hierarchy and a command structure that allows for the implementation of basic IHL principles.29 This is potentially hard to prove when the groups are only connected by virtual communication.30 However, since an individual within the group has been identified, and the group is wanted for more than one cyber-attack, it is possible that the group follow a command structure satisfying a minimum level of organisation.31 This requirement could also be said to have been met if it is seen that the cyber operations conducted have resulted in harm akin to that in an armed conflict.32 However, due to the absence of instructive state practice or opinio juris in the context of armed conflicts, it remains unclear when cyber warfare can be said to satisfy the criteria.

However, if established that the cyber operations are occurring in the context of armed conflicts, the principles of IHL such as the principle of distinction and neutrality will apply.

Priciple of Distinction In the 1996 Advisory Opinion on Nuclear Weapons, the International Court of Justice established the principle of distinction as a cardinal principle of IHL.33 This precept of distinction, recognised as a part of modern customary international law, is contained in Article 48 of the 1977 Additional Protocol I to the Geneva Convention (Additional Protocol I) entitled the ‘basic rule’. Under this principle, parties to an armed conflict must

27 Diamond, supra note 20, at 71.

28 Tadic, supra note 22, para 70.

29 ICTY, Prosecutor v. Boskoski, IT-04-82-T, Trial Chamber Judgment of 10 July 2008, paras. 199–203.

30 Tallinn Manual, supra note 24, Commentary on Rule 23, paras. 13-15.

31 Reuters, supra note 9 32 Diamond, supra note 20.

33 Legality of the Threat or Use Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8) [hereinafter Advisory Opinion].

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always distinguish between civilians and civilian objects on the one hand, and combatants and military targets on the other.34 The treaty bars belligerents from rendering useless those objects that are indispensable to the survival of the civilian population, such as foodstuffs, drinking water installations and supplies.35 Consequently, States must never use weapons that are incapable of distinguishing between civilian and military targets.36 The meaning of ‘attack’ is important in this context, as humanitarian law’s prohibitions only apply to cyber operations that qualify as such. Article 49(1) of Additional Protocol I defines an attack as ‘acts of violence against the adversary, whether in offence or in defence.’37 This definition was formed at the time when attacks were carried out almost exclusively by the use of physical force which were by nature violent. To include cyber warfare, the term should be broadly interpreted keeping in mind the overarching humanitarian purpose of IHL.38 Although this broad interpretation may not be a popular opinion and can be said to be stretching the cyber warfare analogy beyond credibility, not doing so could risk the law becoming obsolete. Further, there is the possibility that excluding cyber operations from the notion of attack would release these operations from the requirement to adhere to the principle of distinction in the choice of targets, a fundamental principle of IHL. Therefore, cyber operations leading to direct physical damage or casualties must be considered an ‘attack’.39 Attacks must be limited to strictly military targets, which the treaty defines as those objects that ‘make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage’.40 Belligerents have a further duty to refrain from undertaking attacks whose primary purpose is of spreading terror among the civilian population.41 This principle can easily be applied to cyber warfare, as academics and military operators are of the opinion that a legitimate military target for a physical attack is a legitimate military target for a cyber-attack.42 The primary difficulty in applying these rules to cyber warfare lies in the fact that most cyber infrastructure is dual-use,43 serving both civilian and military objectives. Computers control a large part of our civilian and military infrastructure, including communications, power systems, sewage regulation and healthcare.44 Moreover, the Internet provides nearly universal interconnectivity of computer networks with no distinction between civilian and military uses.45 It is well-accepted practice that dual-use

34 Protocol Additional to the Geneva Conventions of 12 August 1 949, and Relating to t Protection of Victims of International Armed Conflicts (Protocol I) June 8, 1977 1125 U.N.T.S. 3 [hereinafter Additional Protocol I] art. 48.

35 Id., art 54(2).

36 Advisory Opinion, supra note 34.

37 Additional Protocol I, supra note 35, art 49(1).

38 Schmitt, supra note 13, at 295.

39 Noam Lubell,‘Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?’, Int’l L. Stud. 89 (2013) 252.

40 Id., art 52(2).

41 Id., art 51(2).

42 Bradley, supra note 12; DOD Assessment, supra note 19.

43 Brian O’Donnell & James Krasa, ‘Humanitarian Law: Developing International Rules for the Digital Battlefield,’ J. Conflict & Security L. 8 (2003) 133, 157.

44 Vida Antolin-Jenkins, ‘Defining the Parameters of Cyberwar Operations: Looking for Law in All The Wrong Places?’

Naval L. Rev. 51 (2005) 132, 132.

45 Id., 137-138.

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objects be treated as military objects.46 This would effectively mean that there would be no prohibition on global cyber-attacks affecting computers worldwide such as WannaCry if they are found to be occurring during an armed conflict.

By way of offering a solution to this problem, Geiß and Lahmann envisaged the disentangling of military and civilian infrastructure by allowing only certain forms of cyber- attack, namely those that can be reversed.47 However, it is unlikely that states will agree to such rigid solutions and therefore the principle of proportionality is said to provide a more flexible solution. As per Article 51(5)(b) of Additional Protocol I, ‘incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof is prohibited if it is excessive in relation to the concrete and direct military advantage anticipated’.48 This principle has reached the status of customary international law, and there is no controversy regarding its general applicability to cyber warfare.49 Therefore, to achieve the humanitarian goal of preventing human suffering and preserving human dignity, the principle of proportionality would prevail to overcome the dual-use nature of Internet infrastructure.

Priciple of Neutrality Keeping in mind the global nature of the cyber-attack using the WannaCry ransomware, another significant principle is the principle of neutrality. Found primarily in The Hague Conventions, it provides that the territory of a neutral state is inviolable and imposes duties and rights on belligerent and neutral states to maintain that neutrality.50 Neutrality law regulates the coexistence of war and peace and gives the states not party to the conflict the ability to maintain relations with all belligerents.51 A key duty with regard to the discussion of cyber warfare is that belligerents may not move troops, weapons or other resources across their territory.52 In situations of naval conflict, the belligerent may move their troops across neutral waters but may not engage in any act of hostility while in those waters.53 Interestingly, neutrality law contains a telecommunications exception as under Article 8 of the 1907 Hague Convention V, which does not call upon the neutral Power to forbid all belligerents from using telegraph or telephone cables belonging to it or its nationals, including legal and natural persons.54 46 Additional Protocol I, supra note 35, art 52(2); Int’l Comm. Of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005), available at http://www.icrc.org/ eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf [hereinafter Customary IHL], Rule 29.

47 Robin Geiß and Henning Lahmann, ‘Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space’, Israel Law Review 45. 3. (2012) 381, 390.

48 Additional Protocol I, supra note 35, art 51(5)(b).

49 Jeffrey Kelsey, ‘Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare’ Michigan Law Review 106(7) (2008) 1427.

50 Convention Respecting the Rights and Duties of Neutral Powers and Persons In Case Land, Oct. 18, 1907, 36 Stat. 2310, T.S. 540 [hereinafter 1907 Hague Convention V]; Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 T.S. 545 [hereinafter 1907 Hague Convention XIII].

51 Stephen Neff, ‘The rights and duties of neutrals’ 1 (2000).

52 Hague Convention V, supra note 50, art. 2.

53 Hague Convention XIII, supra note 50, art I, art II. 54 Hague Convention V, supra note 50, art. 8.

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The use of the internet to conduct cross-border cyber-attacks, as in the case of WannaCry, violates the principle of neutrality when the belligerent launches an attack that crosses the Internet nodes of a neutral state.55 The limited exception to telecommunications does not extend to cyber warfare as Hague Convention V explicitly states that belligerents â&#x20AC;&#x153;are forbidden to move troops, or convoys of either munitions of war or supplies across the territory of a neutral Power.â&#x20AC;?56 Rather than transmitting a mere communication signal, in the case of a cyber-attack, the belligerent is moving a weapon, designed to kill, injure, or disable people or to damage or destroy property, across the territory of a neutral Power.57 As Brown has noted, when an information packet containing a malicious code travels through computer systems across neutral states, neutrality is violated when construed in a strict sense.58 The Hague Convention V prohibits the movement of even a single electron across the territory of a neutral state.59 Therefore, the violation of borders no longer requires the physical movement of troops or supplies.

Like any other attack that violates the territory of a neutral power, a cyber-attack risks drawing the neutral state into the conflict. For example, the WannaCry ransomware attack may have originated from North Korea, but in spreading to countries such as the UK and India, it travelled through the territory of neutral countries. As there is an obligation on such neutral powers to detect such attacks and prevent them,60 a failure to do so would entitle the opposing belligerent to attack the neutral state to end the attack.61 Even if it were possible to detect the attacks, the only effective action under the present structure of the Internet that the neutral state could take to prevent the cyber-attacks from leaving its territory is to sever all connections with computer systems in other states.62 Therefore, belligerents and neutral powers face significant difficulties in complying with IHL under the present structure of the Internet. Recognising these difficulties, the scope of these rights and duties should change and offer states an effective way to maintain neutrality while avoiding the unrealistic limitations on the use of cyber weapons.63 Academics have suggested an intent-based approach to neutrality where the belligerent would not violate IHL unless he directed the cyber weapon to the territory of the neutral state.64

Conclusion Although the UN GGE failed to reach a consensus on the applicability of IHL to cyberspace, it is clear that it can be applied to the context of cyber warfare by analogy to a certain extent. Analysing the situation in the WannaCry global cyber-attack, this article has shown that the IHL framework applies to the conduct of cyber warfare. It has demonstrated that violations of the principles of distinction and neutrality are more likely in the case of cyber warfare than in traditional warfare.

As the Internet infrastructure consists of dual-use objects, any attack will potentially cause human suffering. To strengthen the principle of distinction to effectively reduce the

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55 DOD Assessment, supra note 19, at 10.

56 Hague Convention V, supra note 50, art 2 (emphasis added).57 Brown, supra note 18, at 184.

58 Id., at 210.

59 Hague Convention V, supra note 50 art. 2.

60 Hague Convention V, supra note 50, art 5.

61 Brown, supra note 18, 210.

62 Brown, supra note 18, 210.

63 Jeffrey, supra note 50, 1435.

64 Id., 1448; Brown, supra note 18, 210-11.

damage to the civilian population and property, states can create new provisions to allow only certain types of cyber warfare or use the principle of proportionality to effectively curb the intensity of such attacks. Further, cyber-attacks have led to the disappearance of ‘borders’ in a traditional sense as the territory of neutral states can now be violated without the use of physical force. However, the law of neutrality needs to be developed to protect the rights and duties of belligerents and neutral states under the present structure of the Internet by allowing for an intent-based approach belligerents and neutral states under the present structure of the Internet by allowing for an intent-based approach.

Therefore, although IHL does lend itself to be applied by analogy to cyber warfare to a certain extent, it needs to be expanded. This development is essential to effectively regulate the emerging borders of cyberspace and to achieve its humanitarian goals; to uphold human dignity and prevent unnecessary human suffering.

Bibliography Antolin-Jenkins,Vida, ‘Defining the Parameters of Cyberwar Operations: Looking for Law in All the Wrong Places?’, Naval L. Rev, 51 (2005), 132 Bing, Christopher and Lynch, Sarah, ‘U.S. charges North Korean hacker in Sony, WannaCry cyberattack’, Reuters, 6 September 2018 <https://www.reuters.com/article/ us-cyber-northkorea-sony/u-s-charges-north-korean-hacker-in-sony-wannacry-cyberattacks-idUSKCN1LM20W> [accessed 18 February 2019] Brown, Davis, ‘A Proposal for an International Convention to Regulate the Use of Information Systems in Armed Conflict’, Harv Int’l L.J, 47 (2006), 179 Centre for Strategic and International Studies, Cybersecurity and Cyberwarfare – Preliminary Assessment of National Doctrine and Organization, UNIDIR Resources Paper, 2011, available at: http://www.unidir.org/files/publications/pdfs/cybersecurity-and-cyberwarfare-preliminary-assessment-of-national-doctrine- and-organization-380.pdf [Accessed: 18 February 2019] Convention Concerning the Laws and Customs of War on Land (Hague IV), 3 Martens Nouveau Recueil (3d) 461 Convention Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907, 36 T.S. 545 Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case Land, Oct. 18, 1907, 36 Stat. 2310, T.S. 540 Corfield, Gareth, ‘En garde! ‘Cyber-war has begun’ – and France will hack first, its defence sec declares’ The Register <https://www.theregister.co.uk/2019/01/22/france_cyber_war/> [Accessed: 8 March 2019] Department of Health, National Audit Office, Investigation: WannaCry cyber-attack and

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the NHS <https://www.nao.org.uk/wp-content/uploads/2017/10/Investigation-WannaCry-cyber-attack-and-the-NHS.pdf> [Accessed: 19 February 2019] Dept. of Defense Office of Gen. Counsel, ‘An Assessment of International Legal Issues In Information Operations’, 11 (1999) <http://www.maxwell.af.mil/ au/awc/awcgate/dod-iolegal/dod-io-legal.pdf> Diamond, Eitan, ‘Applying International Humanitarian Law to Cyber Warfare (2014) Law and National Security: Selected Issues 67’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3093068> [Accessed: 18 February 2019] Dobrygowski, Daniel, ‘What would a cyberwar look like?’,WEForum <https://www.weforum.org/agenda/2018/04/what-would-a-cyberwar-look-like/> [Accessed: 8 March 2019] Dormann, Knut, ‘Computer network attack and international humanitarian law, International Committee of the Red Cross’, May 19, 2001, para. 29 <http://www.icrc.org/web/ eng/ siteengO.nsf/htmlall/5p2alj> Droege, Cordula, ‘Get off My Cloud: Cyber Warfare, International Humanitarian Law, and The Protection of Civilians’, International Review of the Red Cross, 886.533 (2018) Fidler, David, ‘The UN Secretary-General’s Call for Regulating Cyberwar Raises More Questions Than Answers’, <https://www.cfr.org/blog/un-secretary-generals-call-regulating-cyberwar-raises-more-questions-answers> [Accessed: 19 February 2019] Glennon, Michael, ‘The Road Ahead: Gaps, Leaks and Drips’, INT’L L. STUD., 83 (2013), 362 ICTY, Prosecutor v Dusko Tadic, IT-94-I, Appeals Chamber Judgement of 15 July 1999 ICTY, Prosecutor v. Boskoski, IT-04-82-T, Trial Chamber Judgment of 10 July 2008, paras.

199–203 ICTY, Prosecutor v.Tadic, Case No. IT-94-1-A, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 Int’l Comm. Of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005) <http://www.icrc.org/eng/assets/files/ other/customary-international-humanitarian-law-i-icrc-eng.pdf> International Court of Justice, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) Judgment of 27 June 1986, paras. 115–116.

International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission, 2001, Vol. II (Part Two).

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Kaldor, New and Old Wars - Organized Violence in a Global Era, 6 (Polity Press, 3rd ed.

2012).

Kelsey, Jeffrey, ‘Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare’ Michigan Law Review 106.7 (2008) 1427 Legality of the Threat or Use Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8) Lubell, Noam, ‘Lawful Targets in Cyber Operations: Does the Principle of Distinction Apply?’, Int’l L. Stud. 89 (2013) 252 Neff, Stephen, ‘The rights and duties of neutrals’ 1 (2000).

O’Donnell, Brian & Kraska, James, ‘Humanitarian Law: Developing International Rules for the Digital Battlefield,’ J. Conflict & Security L. 8 (2003) 133 Protocol Additional to the Geneva Conventions of 12 August 1 949, and Relating to t Protection of Victims of International Armed Conflicts (Protocol I) June 8, 1977 1125 U.N.T.S. 3 Robin Geiß and Henning Lahmann, ‘Cyber Warfare: Applying the Principle of Distinction in an Interconnected Space’, Israel Law Review, 45.3 (2012) 381 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, 144 (Sept. 7) Schmitt, Michael and Vihul, Liss, ‘International Cyber Law Politicized: The UN GGE’s Failure to Advance Cyber Norms’, Just Security <https://www.justsecurity.org/42768/international-cyber-law-politicized-gges-failure-advance-cyber-norms/> [accessed 19 February 2019] Schmitt, Michael, ‘The Law of Cyber Warfare: Quo Vadis?’, Stan. L. & Pol’y Rev., 25 (2014) 269, 272 Scott, Roger, ‘Legal Aspects of Information Warfare: Military Disruption of Telecommunications’, Naval L. Rev. 45 (1998) 57 Shane, Scott, ‘Cyberwarfare emerges from shadows of public discussion by US officials’, The New York Times <https://www.nytimes.com/2012/09/27/us/us-officials-opening-up-on-cyberwarfare.html> [accessed 18 February 2019] Statute of the International Court of Justice art. 38(1), June 26, 1945, 59 Stat. 1055; North Sea Continental Shelf (Ger. v. Den.; Ger. v. Neth.), 1969 I.C.J. 3, 77 (Feb. 20) Tallinn Manual on the International Law Applicable to Cyber Warfare 211 (Michael N. Schmitt ed., 2013) [hereinafter Tallinn Manual] Theodore, Christakis, and Bannelier, Karine, ‘Reinventing Multilateral Cybersecurity Negotiation after the Failure of the UN GGE and Wannacry: The OECD Solution,’ EJIL Talk! <https://www.ejiltalk.org/reinventing-multilateral-cybersecurity-negotiation-after-the-failure-of-the-un-gge-and-wannacry-the-oecd-solution/> [accessed 19 February 2019]

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A State of Controlled Instability: The Restrictive Impact of Institutional Discourse on Refugees in France Josie Canham-Williams

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Abstract Exploring the concept of borders and law in relation to the human rights of refugees in France, this essay demonstrates how legal fictions can be used to justify the subsequent actions of imprisoning and deporting individuals. An analysis into the nature of the national border surrounding the legal space of France highlights how constructed concepts, such as the border surrounding the Roissy zone d’attente, a deportation holding area, can result in the mistreatment of individuals. Conscious lexical decision-making in extensive Parliamentary debates from the 1830s onwards demonstrates the impact of the legal definition of a ‘refugee’ on the integrity of the French national border. A short analysis of a media discourse study into the connotations of the terms ‘refugee’ and ‘migrant’ highlights the more compassionate approach associated with the term refugee. Finally, this essay will explore the phenomenon of legal cases for exception which can be used to extend an individual’s period of detention for example. This essay demonstrates the ongoing tension between the border, the law, and the human rights of refugees in France.

Universal Declaration of Human Rights - Article I: ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’.1 Exploring the notion of the French national border and its relationship with refugees in France from the 1800s to the present day, this essay will challenge the above article and demonstrate how constructed concepts can justify the subsequent impingements on human rights.2 I will conduct an analysis into the French national border which demarcates the legal area of France and does not simply run around the perimeter of the country.

The Roissy zone d’attente detention centre just outside of Paris will be used to highlight the French border’s fictional nature.3 Considering linguistic control to be intrinsically tied to legal evolution, I will also explore the development of legal definitions and laws from the mid-19th century. Presenting the French national border alongside legal terminology as politically crafted tools, I aim to demonstrate how the precarious status of a refugee is encapsulated within the legal system. A border, defined by the Oxford Dictionary as ‘a line separating two countries, administrative divisions, or other areas’, holds an immense amount of power for upholding the integrity and validity of a nation.4 Interestingly, the French national border does not solely run around the perimeter of the country and there are small pockets of land which, despite being geographically in France, are not legally viewed to constitute a part of the French nation. Described by Makaremi as a ‘legal fiction’,5 the border around a zones d’attente results in the exclusion of its detainees from the legal space of France.6 This therefore excludes detainees from the basic rights granted to those legally acknowledged to be on French soil.7 The zone d’attente Zapi 3 1 United Nations General Assembly (UNGA), Universal Declaration of Human Rights, (10 December 1948), Article 1.

2 I will be using the term refugee to mean a displaced person fleeing conflict, danger and poverty.

3 Zones d’attentes are waiting, or holding, areas near entrance points to France, such as airports, where people are detained and denied entry into the legal space of France.

4 Oxford University Press, Dictionary (2019) <https://en.oxforddictionaries.com/definition/border> (accessed 15/03/2019).

5 fiction juridique.

6 Chowra Makaremi, ‘Les zones de non-droit, un dispositif pathétique de la démocratie’, Anthropologie et Sociétés, 32.3 (2008), p.84.

7 L’Assemblé Nationale, ‘Les Placements en Zones d’Attentes’ in Commission des lois constitutionnelles, de la législation et de l’administration générale de la République, sur les centres de rétention administrative et les zones d’attente, (24/08/2009).

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de Roissy, which held ninety percent of those placed in a zone d’attente in 2009, is not legally viewed as a part of France despite being situated just outside of the French capital, Paris. Article 7 of the Declaration of Human Rights states that ‘all are equal before the law’, but through the use of the constructed border around the Roissy zone d’attente, the French authorities have found a loophole enabling them to shirk themselves of their duty to adhere to the above Article.8 In his book Bodies at the border: the medical protection of immigrants in a French immigration detention centre, Nicholas Fischer demonstrates the paradox of the border by highlighting the tension between the detainees’ physical presence on French soil, and this legally constructed separation which places detainees ‘outside the state’. 9 The fictional nature of the border is exposed in cases where detainees experience serious illness and are entitled to assistance from French legal and medical experts, thus confirming their presence in France.10 Hannah Arendt outlines the power of legal constructions, such as borders: ‘What first appears as a hypothesis…turns immediately, usually after a few paragraphs, into a “fact”, which then gives birth to a whole string of similar non-facts, with the result that the purely speculative character of the whole enterprise is forgotten’.11 The fictional concept of the nation is also outlined by Anderson, describing it as ‘an imagined political community’, and Stoessinger writes that nations are ‘only abstractions, figments of human imagination’.12 The inescapable power of borders and the nation over the fate of refugees is particularly perplexing when one considers their fictional nature.

Having outlined the border as a fictional tool for control, this paper will now explore the discursive construction of the terms refugee and migrant in the media and the law. The United Nations High Commissioner for Refugees states the importance of understanding of the use of the words ‘migrant’ and ‘refugee’: ‘There is a difference, and it does matter.

The two terms have distinct and different meanings and confusing them leads to problems for both populations’. This paper will firstly explore a discourse analysis on these two terms, and then analyse the legal debates surrounding the definition of a refugee and a migrant. The argument that the legal separation of these terms constitutes a political construction rather than an empirical reality will be put forward and will demonstrate how politically motivated definitions and connotations result in the constantly shifting status of a refugee, affecting their relationship with the border and their potential to be granted asylum.

There has been much research into the study and impact of terminology on public opinion.

Ruth Wodack’s interdisciplinary approach, Critical Discourse Analysis, emphasises that ‘language is not powerful on its own – it gains power by the use people make of it’.13 Critical Discourse Analysis therefore studies linguistic data as a social practice which both reflects and creates ideologies in society. Wodak also outlines the Discourse-Historical Approach which ‘allows the analyst to step outside the corpus and consult other types of 8 UNGA, Universal Declaration of Human Rights, Article 14.

9 Nicolas Fischer, ‘Bodies at the border: the medical protection of immigrants in a French immigration detention centre’, Ethnic and Racial Studies, 36.7 (2015), p.1165.

10 Ibid., 11 Hannah Arendt, On Violence (San Diego: Harcourt, Brace, Jovanovich, 1970), p.6.

12 John Stoessinger, ‘The Anatomy of the Nation State and the Nature of Power’, in Perspectives on world politics: a reader, ed. Richard Little and Michael Smith (London: Routledge, 1991), p.25.

13 Ruth Wodak, Critical Discourse Analysis,Volume 2, Methodologies (Los Angeles: SAGE, 2012), p.9.

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information’.14 Corpus Linguistics is another discourse analysis technique that uses large collections of data to extract trends of vocabulary. Linguistic analysis is essential to understand the significance of the French national border by viewing refugees and migrants as legally and discursively constructed categories of people.

Both Corpus Linguistics and Critical Discourse Analysis were applied in a study by Visual Social Media Lab, titled The Iconic Image on Social Media, A Rapid Research Response to the Death of Aylan Kurdi.15 Francesco D’Orazio explored the linguistic repercussions of the image of the body of the Syrian three-year-old, Aylan Kurdi, washed up on the beach in Turkey in 2015. Using Corpus Linguistics to analyse the frequency of the use of the words ‘refugee’ and ‘migrant’ on Twitter, D’Orazio discovered that following the publication of the image, use of the word ‘refugee’ saw a sharp increase to 6.5 million appearances, over double the 2.9 million appearances which the word ‘migrant’ made.16 In 2015, before the publishing of the image in September, the terms were used with similar frequency.

This linguistic change could be linked to the way that the words ‘refugee’ and ‘migrant’ carry certain connotations and suggests that this linguistic change is a direct impact of the evocative image of a lifeless child. ‘Refugee’ appears to be associated with a more compassionate approach, triggered by a vulnerable child in need of protection. ‘Migrant’ however has become increasingly laden with negativity, with the term being used in a more derogatory manner in media and political discourse. The word ‘migrant’ often has a dehumanising effect, sweeping away individual experiences of unthinkable trauma and turning people into an indistinct and problematic mass. On August 20th 2015, Barry Malone, an editor of Al Jazeera, powerfully explained that ‘the umbrella term migrant is no longer fit for purpose when it comes to describing the horror unfolding in the Mediterranean’.17 In the week following Malone’s article, Le Monde18, Le Figaro19 and La Liberation20 published articles discussing definitions of the terms. Quite ironically, the article in La Liberation article discussing the importance of word choice began with the common dehumanising metaphor of the waves of migrants, evoking images of something wild and uncontrollable.21 The ambiguity surrounding the use and definition of the word refugee is not a new 14 Ibid., p.26.

15 Francesco D’Orazio, ‘Journey of an image : A beach in Bodrum to twenty million screens across the world’, in The Iconic Image on Social Media, A Rapid Research Response to the Death of Aylan Kurdi, Visual Social Media Lab (2015), <http://visualsocialmedialab.org/projects/the-iconic-image-on-social-media> [Accessed: 10/04/2016].

16 Ibid, p.11; Google Data, Knowledge Graph was used to support the study and searched for the terms in ‘thousands of possible combinations and hundreds of languages’.

17 Barry Malone, ‘Why Al Jazeera will not say Mediterranean “migrants”’, Al Jazeera, 20 August 2015 <http://www. aljazeera.com/blogs/editors-blog/2015/08/al-jazeera-mediterranean-migrants-150820082226309.html> [Accessed: 15/04/2016].

18 Alexandre Pouchard, ‘Migrants et réfugiés : des mots aux frontières bien définies’, Le Monde, <http://www. lemonde.fr/les-decodeurs/article/2015/08/25/migrant-ou-refugie-quelles-differences_4736541_4355770.html>, [Accessed : 15/04/2016].

19 Blandine Le Cain, «Migrants» ou «réfugiés» : quels mots pour rendre compte de ces drames humains ?, Le Figaro,(27/08/2015), <http://www.lefigaro.fr/international/2015/08/26/01003-20150826ARTFIG00246-migrantsou-refugies-quels-mots-pour-rendre-compte-de-ces-drames-humains.php>, [Accessed : 15/04/2016].

20 Laure Andrillon, Migrants et réfugiés : des mots aux frontières bien définies, La Liberation, (28/08/2015) <http:// www.liberation.fr/planete/2015/08/28/migrants-et-refugies-des-mots-aux-frontieres-bien-definies_1371340>, [Accessed : 15/04/2016].

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phenomenon. Its meaning has fluctuated several times throughout French history, with direct consequences on the meaning of the French national border to this group of people. This is demonstrated through the following exploration of changes in definition during the 1830s and 1840s, as well as the 1950’s debates surrounding the Geneva Convention.

‘The debate surrounding the right to asylum, during the 1830s, drew a second problem of the 20th century into light: the definition of a refugee.22The lack of an agreed, clear definition of the word refugee was highlighted by Deputy Laurence in the Chamber in April 1832. He questioned: ‘What do you all understand by the word refugee?’.23 Difficulties arose from numerous sides of the chamber due to an awareness of the pivotal impact of the definition on the meaning of government policy. Charles Compte, deputy of Sarthe in 1830, commented:‘the laws surrounding the status of refugees and non-refugees has presented us with the greatest state of disorder’.24 The term was not defined in this session, and the debate was consequently adjourned in May 1834, 21st April 1836,25 July 1837 and again in July 1839.26 It was not until 1849 that a law was declared outlining the requirements and terms for the naturalisation of a refugee, which included being a resident of France for at least ten years, and a morality test.27 It is significant to note the 1848 European wide revolutions for political and social change including the overthrow of the monarchy, were directly followed by the 1849 tightening of immigration policy.The timely finalisation of the definitions of these terms could be seen as a response to the uprisings in order to preserve control and reduce risk of further unrest.

In 1951, the Geneva Convention Relating to the Status of Refugees adopted a definition of a refugee as someone with a ‘well-founded fear’ of persecution.28 Jerome Valluy highlights the questionable nature of the right to asylum and stresses the ambiguity of the abstract term, ‘well-founded fear’ which allows for subjective interpretation by those with legal power.29 In the wake of huge displacement following the Second World War, French ministers stated that there were already too many refugees in France,30 an attitude that is still 21 (Vagues de migrations) 22 Gérard Noiriel, Réfugiés Et Sans-Papiers (Paris: Hachette Littératures, 1998), p.42. (translation my own : « Le débat sur le droit d’asile, dans les années 1830, met en lumière un second problème qui deviendra central au XXe siècle : la définition du réfugié »).

23 Ibid., p.42. (translation my own: « Qu’entendez-vous par réfugiés? »).

24 Ibid., (translation my own : « les lois sur l’état des réfugiés et des non-réfugiés présentent le plus grand désordre ») 25 La République Française, Bulletin des lois de la République Française, Tome 12, (Paris : L’Imprimerie Royal, 1836) p.141. 26 Thaddée Piotrowski, « Documents pour l’étude de l’immigration polonaise de 1831 », dans INED, « Documents sur l’immigration », Travaux et Documents, Cahiers n° 2, PUF, 1947, pp.43-75.

27 ‘Loi du 3 décembre 1849, Naturalisation et Séjour des Etrangers en France’, in Jean-Baptiste Duvergier, Collection complète des lois, décrets, ordonnances, règlements, tome 49 (Paris : Imprimerie de Pommeret et Moreau, 1849) pp.415-420.

28 UNHCR, The 1951 Convention and Protocol Relating to the Status of Refugees <http://www.unhcr.org/ protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html>, p.14.

29 Jérôme Valluy, ‘Le Fiction Juridique De L’asile’, Plein droit 63 (University Panthéon-Sorbonne : 2004).

30 Noiriel, Réfugiés Et Sans-Papiers, p.144.

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familiar today.31 After much debate, it was decided that only those who experienced persecution before 1st January 1951 were to be considered refugees, thereby preventing any further additions to this group. As of the 3rd July 1951, the definition was also given a spatial restriction; only people who underwent persecution in Europe would be considered to be refugees.32 Great Britain and Belgium, however, were the main advocates for abandoning this spatial restriction and making the term applicable to those who have been victims of persecution regardless of location, whilst France and the United States were against the expansion of the definition.33 This debate was settled by leaving the choice of ‘in Europe’ or ‘in Europe or elsewhere’ for each nation state to decide.34 However, the 1967 protocol removed the spatial and temporal restrictions of the definition and thus ambiguity surrounding who is to be considered a legitimate refugee remained.35 Evidently there is a continuing history of confusion, uncertainty and conscious lexical decision-making relating to the definition of a refugees. This is primarily due to its pivotal impact on the relationship between refugees and the French national border and governmental obligations to allow entry and provide asylum. Language plays a key role in this relationship as categories are constructed in order to justify certain legal actions, as previously outlined with the creation of fictional borders to justify certain treatment.

I will now demonstrate the use of the term ‘exception’ to exclude certain people from laws which at first may appear to protect every person’s human rights.

The 1950 European Convention of Human Rights (ECHR) states that ‘everyone has the right to personal liberty and security of person’.36 It then outlines certain cases of exception, including the ‘lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition’.37 Furthermore, the 1986 Pasqua Law, a benchmark regarding immigration and the naturalisation process which has been highly contested, gave border police the complete power to detain and immediately deport any person without the required papers.38 Guilty until proven innocent, refugees can be deprived of their right to personal liberty and security of person and be detained.The use of the word ‘exception’ allows for laws which, although appearing to provide protection to detainees, do not legally apply to all situations. For example, a temporal limit on periods of detention is disregarded in cases of ‘exception’ : ‘administrative detention39 is limited 31 A study in January 2013 by Ipsos showed that 70% thought that there were too many foreigners in France.

Interestingly in the April 2016 survey, this had reduced to 65%; Ipsos, Fractures françaises 2016, <www.ipsos.fr/ decrypter-societe/2016-04-27-fractures-francaises-2016-repli-et-defiance-au-plus-haut> [Accessed: 20/05/2016], p.49. 2 Noiriel, Réfugiés Et Sans-Papiers, p.144. 33 Ibid., p.145.

34 Ibid., p.146.

35 UNHCR, The 1951 Convention and Protocol Relating to the Status of Refugees and its 1967 Protocol, (Geneva : UNHCR, 2011), p.4.

36 Council of Europe, 1950 European Convention of Human Rights, (Strasbourg: Council of Europe, 1950), Article 5, p.7.

37 Ibid., p.8.

38 L’Assemblé Nationale et le Senat, Loi n°86-1025 Dite Pasqua Relative aux Conditions d’Entrée et de Séjour des Etrangers en France, (09/09/1986).

39 Arrest and detention without trial.

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to the time necessary to deport the individual and may not exceed 45 days, except for in cases of exception’.40 Another example is the 2008 Return Directive which states that those awaiting deportation can be legally detained for six months. However, this can be extended to eighteen months in the ‘exceptional’ case of ‘a lack of cooperation’ or ‘delays in obtaining the necessary documentation’.41 This documentation is often very difficult to acquire, therefore extended periods of detention are not uncommon. Through the legal and discursive construction of groups of people and cases for exception exempting specific individuals from certain laws, those fleeing conflict, danger and poverty often find themselves legally deprived of their human rights in France. The Commissioner for Human Rights emphasises that a person irregularly crossing a border or staying beyond their permitted period ‘does not harm a specific individual’ and that the only harm done is to the ‘integrity of the state’s borders and immigration control laws’.42 This affirmation provides a contradiction to the threat of immigration which is constructed in the media and politics. In an interview for La Liberation, sociologist Eric Fassin states that ‘we treat people who are fleeing war like criminals.43 Although Article 31 of the 1951 Geneva Convention states that penalties shall not be imposed on refugees crossing a border illegally, it is only on the condition that they have come ‘directly from a territory where their life or freedom was threatened’.44 This constitutes another restricting factor of the Geneva Convention, described by Katy Long as a ‘politically crafted construction’.45 The Dublin convention, ratified in 1997, states that a refugee must seek asylum in the first ‘safe’ country they reach and not doing so can be regarded as a criminal offence. The Dublin II amendment clarifies that the first country of asylum application is responsible for processing the claim.46 A difficulty of this is that it can often be difficult to prove which is the first ‘safe’ country that a refugee has been through 47. Illegal entry into France is punishable with a fine and imprisonment and as this is often the only way to enter the country, refugees are automatically deemed criminal the moment they set foot in France, even if they have a valid claim for asylum.48 Someone fleeing torture may find it difficult, even impossible, to have documents that are considered satisfactory by the French government to prove their fear of persecution. A 40 Direction de l’information légale et administrative (Premier ministre), Rétention administrative d’un étranger en instance d’éloignement, (20/08/2015) <https://www.service-public.fr/particuliers/vosdroits/F2780>, (accessed 03/03/2016), .(translation my own : « La rétention administrative…est limitée au temps strictement nécessaire à son renvoi et ne peut pas dépasser 45 jours, sauf exceptions »).

41 The European Parliament, Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals, in The Official Journal of the European Union, (2008), p.5 42 Thomas Hammarberg, Criminalisation of Migration in Europe: Human Rights Implications, (Council of Europe Commissioner for Human Rights, February 2010).

43 Laure Andrillon, ‘Migrants et réfugiés : des mots aux frontières bien définies’. (Translation my own : « On traite comme des délinquants des gens qui fuient la guerre »).

44 UNHCR, The 1951 Convention and Protocol Relating to the Status of Refugees, p.29.

45 Katy Long, ‘When Refugees Stopped Being Migrants: Movement, Labour and Humanitarian Protection’, Migration Studies, 1.1 (2013), p.6.

46 Dublin II Regulation, Council Regulation (EC) No 343/2003 (18/02/2003).

47 The 1950 Refugee Convention however does not specify this and in case law, the 1951 Geneva Clause and Dublin II amendment are often ignored; UNHCR, The 1951 Convention and Protocol Relating to the Status of Refugees and its 1967 Protocol, (Geneva : UNHCR, 2011).

48 European Union Agency for Fundamental Human Rights (FRA), Criminalisation of migrants in an irregular situation and persons engaging with them, (FRA, March 2014).

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refugee crossing the border into France without these documents is deemed criminal

by French law and is therefore legally deportable as a result of the ‘double peine’, or the ‘double punishment’. This means that if a refugee commits a crime in France, not only must they serve the punishment for that crime, they are also subject to the additional punishment, known as the ‘peine complémentaire’’, of deportation: ‘The permanent deportation of foreigners, including those from the European Union, from the country.

This deportation applies from the moment they leave prison’.49The ‘double peine’ was first introduced in the 31st December 1970 during the fight againstdrugs, labelled ‘la lutte contre la toxicomanie’, which legalised deportation of foreigners following their prison sentence for serious crimes relating to the drug trade. This was progressively extended to apply to other crimes committed by foreigners, including refugees.50 Article 14 of the International Covenant on Civil and Political Rights, brought into practice in 1976, outlines that one cannot be punished for the same crime twice, however the ‘double peine’ appears to be in breach of this.51 Due to the construction of the border and the categorisations of people in France, there is an inherent misalignment of the human rights interests of refugees and the structure of French policy. The discussions in this essay demonstrate how a hostile approach towards refugees is historically ingrained in the French legal system and provides justification for the deportation and dehumanising treatment of people in search of safety. The deliberation, confusion and concern surrounding the definition of refugees is not a new debate and the acceptance of refugees appears to present a tension between the power 49 Direction de l’information légale et administrative (Premier ministre), Ministère en charge de la justice, Infraction pénale : peines complémentaires, (22/06/2015) <https://www.service-public.fr/particuliers/ vosdroits/ F1406> [Accessed : 09/05/2016] ; (Translation my own : « interdiction de territoire pour les étrangers y compris de l’Union européenne, définitive ou de dix ans maximum. Cette interdiction s’applique dès la sortie de prison ») 50 L’Assemblé Nationale et le Senat, Loi n°70-1320 Relative aux Mesures Sanitaires de Lutte contre la Toxicomanie, (31/12/1970).

51 UNGA, ‘International Covenant on Civil and Political Rights’ in United Nations, Treaty Series (16/12/1966).

Article 14 (7) states: ‘No one shall be liable to be tried or punished again for an offence for which he has already

Bibliography Andrillon, Laure, Migrants et réfugiés : des mots aux frontières bien définies, La Liberation, (28/08/2015) <http://www.liberation.fr/planete/2015/08/28/migrants-et-refugies-desmots-aux-frontieres-bien-definies_1371340> [Accessed : 15/04/2016] Arendt, Hannah, On Violence (San Diego: Harcourt, Brace, Jovanovich, 1970) L’Assemblé Nationale et le Senat, Loi n°70-1320 Relative aux Mesures Sanitaires de Lutte contre la Toxicomanie, (31/12/1970) L’Assemblé Nationale et le Senat, Loi n°86-1025 Dite Pasqua Relative aux Conditions d’Entrée et de Séjour des Etrangers en France, (09/09/1986) L’Assemblé Nationale, ‘Les Placements en Zones d’Attentes’ in Commission des lois constitutionnelles, de la législation et de l’administration générale de la République, sur les centres de rétention administrative et les zones d’attente, (24/08/2009)

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Le Cain, Blandine, «Migrants» ou «réfugiés» : quels mots pour rendre compte de ces drames humains ?,Le Figaro,(27/08/2015) <http://www.lefigaro.fr/international/2015/08/26/0100320150826ARTFIG00246-migrants-ou-refugies-quels-mots-pour-rendre-compte-de-cesdrames-humains.php>, [Accessed : 15/04/2016] Council of Europe, 1950 European Convention of Human Rights, (Strasbourg: Council of Europe, 1950) Direction de l’information légale et administrative (Premier ministre), Rétention administrative d’un étranger en instance d’éloignement, (20/08/2015) <https://www. service-public.fr/particuliers/vosdroits/F2780> [Accessed : 03/03/2016] Direction de l’information légale et administrative (Premier ministre), Ministère en charge de la justice, Infraction pénale : peines complémentaires, (22/06/2015), <https:// www.service-public.fr/particuliers/vosdroits/F1406>, [Accessed : 09/05/2016] D’Orazio, Francesco, ‘Journey of an image : A beach in Bodrum to twenty million screens across the world’ in The Iconic Image on Social Media, A Rapid Research Response to the Death of Aylan Kurdi,Visual Social Media Lab (2015), <http://visualsocialmedialab.org/ projects/the-iconic-image-on-social-media>, [Accessed 10/04/2016] Dublin II Regulation, Council Regulation (EC) No 343/2003 (18/02/2003) Duvergier, Jean-Baptise, ‘Loi du 3 décembre 1849, Naturalisation et Séjour des Etrangers en France’, in Collection complète des lois, décrets, ordonnances, règlements, tome 49 (Paris : Imprimerie de Pommeret et Moreau, 1849) The European Parliament, Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals, in The Official Journal of the European Union, (2008) European Union Agency for Fundamental Human Rights (FRA), Criminalisation of migrants in an irregular situation and persons engaging with them, (FRA, March 2014) Fischer, Nicolas, ‘Bodies at the border: the medical protection of immigrants in a French immigration detention centre’, Ethnic and Racial Studies, 36:7 (May 2015) Hammarberg,Thomas, Criminalisation of Migration in Europe: Human Rights Implications, (Council of Europe Commissioner for Human Rights, February 2010) Ipsos, Fractures françaises 2016 <www.ipsos.fr/decrypter-societe/2016-04-27-fracturesfrancaises-2016-repli-et-defiance-au-plus-haut> [Accessed: 20/05/2016] Long, Katy,When Refugees Stopped Being Migrants, p.6.

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Malone, Barry, ‘Why Al Jazeera will not say Mediterranean “migrants”’, Al Jazeera, (20/08/2015), <http://www.aljazeera.com/blogs/editors-blog/2015/08/al-jazeeramediterranean-migrants-150820082226309.html>, [Accessed: 15/04/2016] Makaremi, Chowra, ‘Les zones de non-droit, un dispositif pathétique de la démocratie’ in Anthropologie et Sociétés, vol. 32, n° 3, (2008) Noiriel, Gérard, Réfugiés Et Sans-Papiers (Paris: Hachette Littératures, 1998) Oxford University Press, Dictionary, https://en.oxforddictionaries.com/definition/border, 2019 [Accessed: 15/03/2019] Piotrowski, Thaddée, « Documents pour l’étude de l’immigration polonaise de 1831 » dans INED, « Documents sur l’immigration », Travaux et Documents, Cahiers n° 2, PUF, 1947 Pouchard, Alexandre, Migrants et réfugiés : des mots aux frontières bien définies, Le Monde, <http://www.lemonde.fr/les-decodeurs/article/2015/08/25/migrant-ou-refugiequelles-differences_4736541_4355770.html> [Accessed : 15/04/2016] La République Française, Bulletin des lois de la République Française, Tome 12, (Paris : L’Imprimerie Royal, 1836) Stoessinger, John, The Anatomy of the Nation State and the Nature of Power in Perspectives on world politics: a reader, ed. Richard Little and Michael Smith, (London: Routledge, 1991) United Nations General Assembly (UNGA), ‘International Covenant on Civil and Political Rights’ in United Nations, Treaty Series (16/12/1966) UNGA, Universal Declaration of Human Rights, (10 December 1948) United Nations High Commissioner for Refugees (UNHCR), The 1951 Convention and Protocol Relating to the Status of Refugees, <http://www.unhcr.org/protection/ basic/3b66c2aa10/convention-protocol-relating-status-refugees.html> Valluy, Jérôme, ‘Le Fiction Juridique De L’asile’, Plein droit 63 (University PanthéonSorbonne :2004) Wodak, Ruth, Critical Discourse Analysis, Volume 2, Methodologies (Los Angeles: SAGE, 2012).

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Etymology and Geology: Problematising the Abstracted Concept of ‘State’ for Refugees in Giorgio Agamben’s ‘Beyond Human Rights’ and Anne Michaels’ Fugitive Pieces Isabel Becker

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Abstract The etymological abstraction of the two common definitions of the concept of ‘state’ – the geopolitical place defined by borders, or the condition of being – is an illusionary separation and has detrimental consequences for the refugee. Giorgio Agamben’s essay ‘Beyond Human Rights’ enables an acute analysis of such etymological abstraction in political philosophy.

Anne Michaels’ literary treatment of the etymological abstraction of ‘state’ in her novel Fugitive Pieces, through privileging the epistemology of geology, corresponds with the latent deliberations in Agamben’s essay. Literature’s depth and creativity can thus be an insightful medium through which to explore the lived realities of theoretical humanitarian work.

At the heart of the discourse on refugees and nation-states is deconstructionist enquiry into etymology: the study of the origin of words and the way in which their meanings change throughout history. Consideration of the ‘abstraction’ of etymological meaning, the inauthentic separation of two concepts with the same origin, is of particular interest to political philosophy.

Taking Giorgio Agamben’s interrogation of the etymological abstraction of the concept of ‘right’ in his 1993 essay ‘Beyond Human Rights’ as exemplar, another concept necessary to question in the same manner is that of ‘state’. Although Agamben overtly critiques the concept of ‘right’ within his essay, there also exists a latent deliberation on the etymological abstraction of the concept of ‘state’. ‘State’ is commonly abstracted into two definitions; either ‘the state’, the geopolitical place, or ‘a state’, a condition of being. A critical understanding of ‘state’ is essential to contemplating the social, political and legal reality of refugee migration to host nation-states; as such, this essay works to excavate Agamben’s internal dialectic and bring to light its significance for the debate on refugee integration.

In consultation of literary texts that approach similar questions, Anne Michaels’ 1996 novel Fugitive Pieces can be read as a response to the problem of the abstracted definition of ‘state’. Enabled through her migratory protagonists and stylistic narrative form, Michaels protests against the abstraction of ‘state’ by using geology as a model for the novel’s aesthetics, as the epistemology of geology refutes the abstraction of ‘state’ into two separate definitions.

Contemporary Italian philosopher Giorgio Agamben interrogates the concept popularised

by Michel Foucault as ‘biopolitics’. Biopolitics, Foucault argues, is “the process by which, at the threshold of the modern era, natural life begins to be included in the mechanisms and calculations of State power”. 1 Yet Agamben understands structural biopolitics to be palimpsestic of classical democracy and Roman law. State control of some human lives over others is instead legible at the level of the ‘homo sacer’ or sacred man, who “may be killed and not yet sacrificed”, as all human life is “included in the juridical order…solely in the form of its exclusion”.2 Thus, further than Judith Butler’s famous remark of the “precarious life of the Other”, Agamben argues that all humans exist within this

1 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, California: Stanford University Press, 1998), p.10.

2 Agamben, Homo Sacer: Sovereign Power and Bare Life, p.12.

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exclusionary paradigm.3 Those lives that are particularly excluded indicate the boundaries by which human life is valued, and valuable within the capitalist order, to the modern, democratic, nation-state. Agamben observes the homo sacer through the figure of the refugee, as the refugee is simultaneously conformant to the state ‘juridical order’ and excluded or sacrificed from it. This philosophical terrain concerning refugee migration is vast and demanding; one example through which to consider state valuation of the ‘precarious life’ of the refugee is that of their supposed ‘universal human rights’. Looking deeper than what ‘human rights’ refugees have, which is commonly considered by critics to be an arbitrary assignment, in ‘Beyond Human Rights’ Agamben questions what exactly ‘human rights’ are in the first instance. He returns to etymology to understand the theoretical and practical definition of ‘right’ and its implications for the refugee.

Agamben presents the question of whether the two concepts of ‘human rights’ and ‘state citizenship rights’ are any different in practicality. For example, the title of France’s 1789 Constitution, Déclaration des Droits de l’Homme et du Citoyen, implies a distinction between homme (man) and citoyen (citizen). But, are these two terms “two distinct realities or…a hendiadys?”, whereby “the first term is actually always contained in the second”. 4 Agamben exposes the uncertainty of whether these siblings of one etymon, ius [right], are ever mutually exclusive. Is there any practical difference between the two, at least from the perspective of the refugee, the supposed claimant of such ‘rights’, or are they in essence the same?

The argument that Agamben proposes in answer to these questions is that “so-called sacred and inalienable human rights are revealed to be without any protection precisely when it is no longer possible to conceive of them as rights of the citizens of a state.”5 Although the two concepts have evolved in Western language to denote two separate entities of ‘rights’, Agamben exposes that ‘human rights’ and ‘state citizenship rights’ are the same in legal and political practicality. ‘Rights’ of any sort can only be legitimised once implemented by a state power, meaning that the authority of international ‘human rights’ over ‘state citizenship rights’ is an illusion.

The separation of these two concepts is therefore a reductive abstraction, and the consequences of such an opaque sense of ‘rights’ for refugees is detrimental. Once in the nation-state, when refugees are excluded from ‘state citizenship rights’, they are simultaneously excluded from ‘human rights’. The etymological “inscription of natural naked life in the political-juridical order” – the “human” and “citizen” forced into synonymity – demonstrates the biopolitical structure of the nation-state.6 Agamben’s etymological interrogation of the concept of ‘right’ as the basis to his philosophical evaluation of the lives of refugees provides the exemplar framework this critical essay. Similar to Agamben’s deconstructive re-interpretation of the work that had

3 Judith Butler, Precarious Life: The Powers of Mourning and Violence (London:Verso, 2004), p.xviii 4 Giorgio Agamben, ‘Beyond Human Rights’, Social Engineering, Open 2008, 90-95, p.92.

5 Agamben, ‘Beyond Human Rights’, p.92.

6 Agamben, ‘Beyond Human Rights’, p.93.

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great influence over him – that of Michel Foucault – this essay treats ‘Beyond Human Rights’ from this point onwards as a text to deconstruct in order to study the lived experience of refugees.

Whilst the interrogation of the etymological abstraction of ‘right’ is overtly a point of focus for Agamben, another concept of similar contention which quietly yet significantly permeates Agamben’s essay is that of ‘state’: a noun that in common definition diverges into ‘the state’ (a place) and ‘a state’ (a condition of being).

The abstraction of ‘state’, the separation of the geopolitical place from the condition of being, is similarly illusionary and harmful to the life of the refugee. This is evident at the subconscious level of ‘Beyond Human Rights’, embedded within the arguments made and examples provided by Agamben. Two specific instances best demonstrate this thesis.

Agamben’s use of Hannah Arendt’s famous ‘polemic’ to frame his essay begins his internal argument against the abstraction of ‘state’. In ‘We Refugees’, a reflection on Arendt’s experience as a refugee from Nazi Germany that since its publication in 1943 has become seminal to refugee studies, Arendt remarked that Jewish refugees in fascist twentiethcentury Europe “represent the vanguard of their peoples”.7 She suggested that Jewish refugees who refused to assimilate into host nations, cultures and languages consequently represented the very disintegrating definition of the ‘nation-state’.8 Those who “insist upon telling the truth”, refusing to shred their Jewish identity, “get in exchange for their unpopularity one priceless advantage”: the novel and liberating opportunity to symbolise the imminent deconstruction of the ‘nation’.9 Due to the influx of new people, languages and belief systems, the nation is no longer a homogenous grouping of similarly ideological people. For Arendt, it is exactly this “paradigm of a new historical consciousness” of the refugees, as Agamben articulates, this new, heterogeneous ‘state’ of being, that governs the emerging definition of the geopolitical ‘state’.10 Here, the ‘state’ (being) dictates the ‘state’ (place).

Agamben then appears to inherit this critical approach of Arendt throughout the rest of his essay: the idea that the two definitions of ‘state’ – a spatial entity, or a condition of consciousness or being – can theoretically be understood as a tautological ‘hendiadys’, whereby ‘the first term is actually always contained in the second’.

The first instance of this is when Agamben exposes how international human rights organisations such as the United Nations High Commissioner for Refugees (UNHCR) may be as excluded from “a political character”, as devoid of political and legal power, as the individual refugee.11 The UNHCR self-proclaims itself to be a “global organization dedicated to saving lives, protecting rights and building a better future for refugees, forcibly displaced communities and stateless people”.12 The two entities of the UNHCR 7 Hannah Arendt, ‘We Refugees’, in Altogether Elsewhere: Writers on Exile, ed. by Marc Robinson (Winchester, MA: Faber and Faber, 1994), p.119.

8 Arendt, ‘We Refugees’, p.119.

9 Arendt, ‘We Refugees’, p.119.

10 Agamben, ‘Beyond Human Rights’, p.90.

11 Agamben, ‘Beyond Human Rights’, p.91.

12 United Nations High Commissioner for Refugees, ‘About Us’, <https://www.unhcr.org/uk/about-us.html> [Accessed: February 16, 2019]

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and the refugee appear to be opposite to one another.

However, the UNHCR is international (not bound to one nation-state) and therefore removed from political and legal authority. Similarly, the refugee is ‘displaced’ or ‘stateless’, and therefore outside of political and legal protection. Despite the UNHCR supposedly being the gatekeeper to ‘human rights’ that the refugee seeks to claim, a power dynamic that would appear to posit these two entities as diametrically opposite, Agamben indirectly demonstrates that both the UNHCR and refugee are in fact stateless. Thus, according to this logic, the ‘state’ (political and legal being) of both the UNHCR and of the refugee unequivocally determines their legitimate access to the ‘state’ (place). This deconstruction of the practical power of legitimising ‘human rights’ that the UNHCR and refugee have is an example of how the ‘state’ (place) is, in reality, an expression of the ‘state’ (being).

The second significant moment is Agamben’s conclusion to his essay. He ends by considering the “Palestinian question”, echoing Edward W. Said as he regards Palestinian refugees as constituting Arendt’s mimetic concept of “the vanguard of their people” in the contemporary moment.13 Agamben considers a solution to the problem that Jerusalem poses to Palestinians. Jerusalem is the designated capital of Palestine and the current capital of Israel. Agamben suggests that Jerusalem should be released from only being the capital of Israel, and rather “the capital of two different states”, in a condition of “reciprocal…aterritorality”.14 Embedded within this call for topological statehood – nation-states liberated from a merely geopolitical definition – to be the “model of our new international relations” is the following realisation.15 Although currently excluded from a topological reality, for Palestinians, their collective national consciousness (‘state’ of being) – their history, culture, language, faith, and so on – is exactly what determines for them the concept of the Palestinian ‘state’ (place).

They already demonstrate how the nation-state exists as much more than merely a geopolitical region or spatial entity. Thus, in this case, the ‘state’ (being) does create the ‘state’ (place).

Whilst Hannah Arendt demonstrated that the identity of non-assimilationist Jewish refugees consequently revolutionised the twentieth-century definition of the nation ‘state’, Agamben shows that contemporary Palestinian refugees also redefine the essentialist notion of the geopolitical ‘state’.Thus, although these two contexts are not only different, but exist in historical tension with one another, both exhibit that the abstraction of ‘state’ (place) from ‘state’ (being) as two separate definitions is a reductionist fallacy. The ‘state’ (place) and ‘state’ (being) exist in symbiotic accordance; this means that they should be re-considered as a ‘hendiadys’ in both theory and practice.

Anne Michaels’ 1996 novel Fugitive Pieces, another text in the critical discussion of refugees and the nation-state, can be read as sitting in conversation with Agamben’s latent 13 Agamben, ‘Beyond Human Rights’, p.95.

14 Agamben, ‘Beyond Human Rights’, p.94.

15 Agamben, ‘Beyond Human Rights’, p.94.

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interrogation of the etymological abstraction of ‘state’. Michaels is a Canadian poet and novelist who also writes about questions of identity and spatial order, amongst other themes. Fugitive Pieces follows the journey of a Polish Holocaust survivor, Jakob, who grows through the grief of losing his family to the Nazis and travels across nations as a – legally and spiritually – stateless refugee. In his hometown of Biskupin, Jakob is found amongst ruins by archaeologist and geologist Athos, who takes Jakob to his home in Zakynthos, Greece. Athos becomes Jakob’s guardian, educating Jakob on many subjects, not limited to, but including: geology, history, botany and language. Together, through mutual suffering and isolation, they form a tight filial bond, living materially impoverished but rich in intellectual stimulation. After the war ends, Jakob and Athos move to Toronto to pursue their intellectual passions, but struggle. Athos passes away and Jakob mistakenly marries and divorces the quirky, modernist Alex who disregards the value of time. Jakob then meets Ben in Toronto, a child of Holocaust survivors. Ben, who then takes on the authorial voice of the speaker, becomes a disciple of Jakob’s poetry, particularly that which focuses on the Holocaust. Ben connects to Jakob’s Holocaust trauma through his own second-hand experience. At the end of the novel Ben returns to Athos and Jakob’s former home in Zakynthos to retrieve Jakob’s library, and learn from the literature that gave both Athos and Jakob their spiritual sustenance.

Within the incredibly moving story and elegiac prose, encompassing so many themes and questions across multiple disciplinary interests, Michaels problematises the abstraction of the concept of ‘state’ for the figure of the refugee. She decisively enacts the theoretical principle that the ‘state’ (being) is what creates the ‘state’ (place). As Michaels uses the form of fictional prose to achieve such didacticism, she performs this principle on an aesthetic level, evident in her characterisation and narratological plot development.

Michaels understands that the abstraction of ‘state’ (place) from ‘state’ (being) is an ideology of nation-states that injures migrant refugees. The idea that a ‘state’ (place) is simply a set of borders and legislation, rather than a logistical function of a nation’s collective ideology (a ‘state’ of being), denies the reality that the former can be just as malleable as the latter. However, nation-states often ignore this possibility.Their reduction of arbitrary borders into a tangible sense of security is to Benedict Anderson ‘philosophical poverty’.16 Yet for the refugee, these materialised boundaries are continually used to deny their access to the ‘state’ (place).

Furthermore, Michaels’ arrest of the abstraction of essential existence from physical existence extends to the specific historical context of the novel.The extermination of six million Jews in the Holocaust was effectively a result of an extremist political philosophy of abstraction: as Michaels’ speaker words it, “Nazi policy was…anti-matter, for Jews were not considered human”.17 The Nazis worked to excavate conscious being (‘state’) from the Jews, completely separating this from their physical bodies (physical ‘state’), and consequently rendering them below the classification of living matter.

16 Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1983), p.49.

17 Anne Michaels, Fugitive Pieces (Bloomsbury, 1996), p.165.

18 Michaels, Fugitive Pieces, p.32.

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Thus, in reaction to the wider and specifically Jewish context of the refugee experience, Michaels opposes the binaries of ‘state’ (being) and ‘state’ (place), essence and existence.

Interestingly, it seems that her approach is to use geology as a structural foundation for the novel’s content and form, for geology’s epistemological understanding of ‘state’ (being; essence), and ‘state’ (physical existence) unequivocally rejects the abstraction of the two definitions. The very chemical equations (the essential ‘state’) one admires in the study of rock formation, for example, is fantastically actualised into physical, empirical matter.

For this reason, Michaels devotes much of the novel’s content to describing the beauty of geology: for example, Jakob learns “the power we give to stones to hold human time”.18 Jakob’s fascination with his study of natural sciences is due to the fact that ‘state’ (being; essence) and ‘state’ (physical existence) are always, inexorably, unified. The structure of the novel’s plot can be read as being created in the image of the formative process of metamorphic rocks. Each phase is compressed onto the next, resulting in an intimately layered narrative.This metamorphic process begins at the very beginning, when Jakob says “I knew my mother was inside me. Moving…under my skin”, and can be traced through the three protagonists, Athos, Jakob and Ben, who effectively metamorphise into the next character.19 The last character’s ‘state’ (being; essence) is physicalised in the next character’s physical existence (‘state’).

Perhaps the most moving example of this is a quietly recurrent yet imperative image.

Jakob begins his journey at the start of the narrative with the admiration of Athos’ copy of “Pliny’s Natural History” in Zakynthos, a text that symbolises the convergence of geology and history, both of which study the metamorphic trajectory of time.20 At the end of the novel, Ben finds the very same text, perhaps the exact same copy, in Jakob’s study in Toronto.21 Thus, after his death, Athos’ ‘state’ (essence; character) is physically realised by Jakob, who remembers Athos through a material copy of his existence: Pliny’s Natural History. Ben then inherits Jakob just as Jakob inherited Athos, through the medium of Pliny’s Natural History. In Fugitive Pieces, the essence of a distanced ‘state’ (being) is always physically resurrected, whether that be in the form of a person’s spiritual essence or ‘being’, or a physical relic of their existence. As such, the ‘state’ (being) is symbiotic with, not abstracted from, the ‘state’ (physical place).

A thorough comparative analysis of these two important texts in the literature of refugees and nation-states finds that both Giorgio Agamben and Anne Michaels oppose the reductionist abstraction of ‘state’ (place) from ‘state’ (being). As they both demonstrate, the ‘state’ (place) is an expression of a somewhat collective or homogenised 19 Michaels, Fugitive Pieces, p.8.

20 Michaels, Fugitive Pieces, p.38.

21 Michaels, Fugitive Pieces, p.265.

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Bibliography Agamben, Giorgio, ‘Beyond Human Rights’, Social Engineering, Open 2008, 90-95 Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (Stanford, California: Stanford University Press, 1998) Anderson, Benedict Imagined Communities: Reflections on the Origin and Spread of Nationalism (London:Verso, 1983) Arendt, Hannah, ‘We Refugees’, in Altogether Elsewhere: Writers on Exile, ed. by Marc Robinson (Winchester, MA: Faber and Faber, 1994) Butler, Judith, Precarious Life:The Powers of Mourning and Violence (London:Verso, 2004) Michaels, Anne, Fugitive Pieces (Bloomsbury, 1996) United Nations High Commissioner for Refugees, ‘About Us’, <https://www.unhcr.org/ uk/about-us.html> [Accessed: February 16, 2019]

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Crossing Borders: Critical Analysis of the Effectiveness of Regional Human Rights System Through the Eyes of Disabled People Feisan Minin

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Abstract Borders limit our freedom; but, they can be overcome. The same is true for people with disability. Every day, they face invisible borders that confine their freedom in ways that are unique from the average experience. But, with the right “passport”, they can cross over these borders and enjoy the freedoms that they are endowed with. This paper asserts that the three main Regional Human Rights Systems (RHRS) i.e. the European, Inter-American and African systems, with their potential as catalysts for strong protection of human rights on an international level, embody this “passport”. However, their effectiveness in terms of public awareness and domestic implementation of human rights are far from ideal, and must be significantly improved for them to be effective “passports” for people with disability.

Borders limit our freedom; but, they can be overcome. State borders, for instance, limit our movements to within a political area. With a passport, however, we can go across them and to the world beyond.The same is true for people with disability. Every day, they face invisible borders that confine their freedom in ways that are unique from the average experience. But, with the right “passport”, they can cross over these borders and enjoy the freedoms that they are endowed with.

This paper asserts that the three main Regional Human Rights Systems (RHRS) i.e. the European, Inter-American and African systems, with their potential as catalysts for strong protection of human rights on an international level, embody this “passport”. However, their effectiveness in terms of public awareness and domestic implementation of human rights are far from ideal, and must be significantly improved for them to be effective “passports” for people with disability. The discussion is divided into two parts. Part One critically analyses the different implementation structures of the RHRS. Part Two proposes specific suggestions for improved effectiveness of the RHRTS, particularly in relation to two rights, namely the disabled’s right to personal liberty and their freedom from discrimination.

The implementation structures of the three RHRTS are similar in that they all consist of a Commission and/or a Court. Arguably, the European system is the most effective and “most advanced model”,1 with evidence of its success seen in the high rate of communications to the European Court of Human Rights (ECtHR). This may be due to the active political engagement of member States, since the Ministers for Foreign Affairs of all member States are responsible for follow up on judgements of the ECtHR.2 This puts political pressure on member States to implement rulings of the Court in their respective domestic courts. The high public awareness of the European Convention on Human Rights (ECHR) is evidenced by the fact that European human rights law is relied on frequently even in cases not directly related to violations of human rights.3 The European RHRS also effectively protects disabled’s rights. For example, in Winterwerp v.

1 Jean-François Renucci, Introduction to the European Convention on Human Rights: The rights guaranteed and the protection mechanism (Council of Europe Publishing 2005) p.6, <https://www.echr.coe.int/LibraryDocs/DG2/ HRFILES/DG2-EN-HRFILES-01(2005).pdf> [Accessed: 9 January 2019].

2 Rachel Murray and Elizabeth Mottershaw, ‘Mechanisms for the Implementation of Decisions of the African Commission on Human and Peoples’ Rights’, Human Rights Quarterly, 36 (2014), pp.368-9.

3 Renucci, p.7.

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The Netherlands4 the ECtHR found that a diagnosis for the need of confinement must make use of “objective medical expertise”5 to detain a mentally disabled person without violating his right to liberty and security.6 In a region of persistent violations of rights and failing democracies, the Inter-American RHRS has contributed to the promotion of human rights by setting standards that have guided important legal and political reforms in the region7 and has positively shaped state behaviour.8 A notable characteristic of the Inter-American system is its fact-finding and reporting efforts innovated in the 1960s and 1970s. Today, such name-and-shame tactics are the “backbone” of human rights promotion activities by non-governmental human rights organisations such as Amnesty International and Human Rights Watch.9 The human rights of persons with disabilities are being developed in the Inter-American system as well. For example, In the Matter of Victor Rosario Congo10 the Inter-American Court of Human Rights (IACHR) found a violation of the right to humane treatment11 when a mentally ill man died in the penitentiary institution due to the states’ gross negligence and wilful acts. Although the right to personal liberty was not discussed, the IACHR recently noted that “persons with disabilities in psychiatric institutions are at particular risk” of the “deprivation of liberty”.12 The African human rights system is the youngest of the three systems. An interesting feature of this system is its distinctively African recognition of collective rights and duties.13 The African Commission on Human and People’s Rights (ACmHPR) and African Court on Human and People’s Rights (ACtHPR) complement each other in promoting and raising the public awareness of human rights. Together they form a two-tier system: The ACmHPR can hear complaints from individuals and NGOs and subsequently refer them to the Court. If, however, the member state of the individual or NGO recognises the ACtHPR’s competence, parties can bring cases directly to the Court. Disabled persons’ rights are recognised as well. In Purohit and Moore v. The Gambia14, the ACmHPR found violations of the guarantee of equal protection of the law and anti-discrimination.15 The implementation of the country’s Lunatic Detention Act (LDA) resulted in a higher rate of detention of people from poorer backgrounds, with legal assistance only provided to 4 Winterwerp v. Netherlands [1992] 33 Eur. Ct. H.R. (ser. A) at 18.

5 Ibid.

6 Article 5 of the European Convention on Human Rights.

7 Ibid.

8 Fernando Basch et al., ‘The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to its Functioning and Compliance with its Decision’, International Journal on Human Rights, 7.12 (2010), p.9.

9 Lea Shaver, ‘The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection?’, Wash. U. Global Stud. L. Rev., 9 (2010), pp.667-668 <http://openscholarship.wustl.edu/law_globalstudies/vol9/ iss4/4> [Accessed: 29 December 2018].

10 Congo v. Ecuador [1999] Case 11.427, Inter-Am. C.H.R., Report No. 63/99, OEA/Ser.L/V/II.106, doc. 6 rev.

11 Article 5 of the ACHR. 12 Maria Isabel Rivero, ‘IACHR Urges States to Protect the Rights of Persons with Disabilities at Mental Health Facilities’ <http://www.oas.org/en/iachr/media_center/PReleases/2016/179.asp> [Accessed: 11 January 2019].

13 Ilias Bantekas and Lutz Oette, International Human Rights Law and Practice, 2nd edn (Cambridge University Press, 2018), p.275.

14 Purohit and Moore v. The Gambia [2003] Afr. Cmm’n on Hum. And Peoples’ Rts., Comm. No. 241/2001 para 85.

15 Articles 3 and 6 of the ACHPR respectively.

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those charged with capital offences, violating the above guaranteed rights.16 As seen above, the regional systems complement the global UN human rights system by bringing human rights principles into the context of their respective regions.They provide specialised human rights actions that are swifter and more responsive than the global UN system,17 raising greater public awareness of these rights and encouraging domestic implementation. In relation to disability policy specifically, the regional systems, through their respective regional awareness initiatives,18 provide useful guidance and expertise in the formulation of action plans, especially through the sharing of good practices and the promotion of dialogues at the sub-regional and regional levels.19 There has been encouraging progress made in relation to disabled persons’ human rights, as seen in the effective protection of their rights including the right to liberty (Winterwerp20) and freedom from discrimination (Purohit21). The implementation mechanisms of the RHRS provide the platform for debate about these rights, with the positive result of better defining and subsequently enforcing human rights of the disabled.22 However, despite its successes, it is submitted that the systems lack effectiveness in terms of raising public awareness and actual implementation of human rights in the respective domestic courts.This is due to two main causes – systemic shortcomings and lack of state compliance. In relation to disabled persons, they face additional challenges in relation to accessibility.

All three major systems are plagued with some form of systemic shortcoming. The European model has the ironic problem of chronic delays in legal proceedings and the large volume of cases pending in the ECtHR.23 This problem arises due to the effectiveness of the European RHRS in promoting and implementing human rights, as discussed above.

However, this problem effectively means that victims may have to wait some time before obtaining remedies to their human rights violations. This undermines the effectiveness of remedying violated rights.

The African system’s two-tier system poses the problem of limited competence recognition which undermines its effectiveness. It can only receive direct communications from individuals or NGOs if the related member states recognise its competence.

16 Purohit and Moore v. The Gambia [2003] Afr. Cmm’n on Hum. And Peoples’ Rts., Comm. No. 241/2001 para 53-54.

17 L. O. Gosting and Z. Lazzarini, Human Rights and Public Health in the AIDS Pandemic (Oxford: New York; Oxford University Press 1997), p.11.

18 For example, the African Decade of Persons with Disabilities.

19 UN Economic and Social Council, Report of the Secretary-General on the Implementation of the World Programme of Action concerning Disabled Persons: the Millenium (Geneva: United Nations, 2007) [A/62/157].

20 Winterwerp v. Netherlands [1992] 33 Eur. Ct. H.R. (ser. A) at 18.

21 Purohit and Moore v. The Gambia [2003] Afr. Cmm’n on Hum. And Peoples’ Rts., Comm. No. 241/2001 para 85.

22 Michael L. Perlin, ‘Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to give Life to the UN Convention to the Rights of Persons with Disabilities’ [2012] 44 The Geo. Wash. Int’l. L. Rev 10.

23 Bantekas and Oette, p.249.

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However, as of January 2019, only nine of the 55 African states have recognised the competence of the Court.24 Another issue faced by the African system is its severe lack of resources. This has negatively affected the quality and efficiency of its work, resulting in increasing delays.25 Raising public awareness of human rights and encouraging domestic implementation of it is thus difficult. The Inter-American system faces the problem of inefficiency as the offices responsible for state foreign relations and the one involved in implementing the required measure is often different.26 For example, the Executive may push for reforms in compliance with the requirement of the modification of a law, but this measure can only be fulfilled by the Legislative, who would need the consensus of the diverse political forces contained within it. This requires a high level of coordination between the different governmental offices, which is often lacking. There is also the problem of delay. On average, the IACtHR requires more than seven years to progress from the submission of petition to reaching a final decision, and a further two and a half years for states to comply with the recommendation.27 This means that those affected may not get their human rights issues addressed efficiently and in a timely manner,28 consequently generating distrust and frustration among the complainants.29 The second cause is the lack of state compliance. The European system faces low state compliances with the ECtHR’s judgments as there is “no obligation... to make judgments of the [ECtHR] executable within the domestic legal system” 30. Non-compliance in the Inter-American system is worse and more widespread due to the culture of widespread impunity.31 Only 36% of remedies recommended were given effect to, and even then, long lapses of times occur between decision and compliance.32 State compliance in Africa is inconsistent. While some states show excellent compliance, such as Nigeria where the ACHPR is part of its domestic law, the impact of the Commission is less visible in most states.33 There is also the question of the legal status of the Commission’s findings. A case in point is Good v Botswana.34 Here, Mr Good was expulsed from Botswana for writing criticisms on the country’s presidential system. However, the government refused to follow the Commission’s recommendation to compensate him for human rights violations as “(the Commission) does not give orders” and that “it is not a court”.35 This prevalent view severely hampers domestic implementation of human rights recommendations.

24 Arusha, ‘The Gambia Becomes the Ninth Country to Allow NGOs And Individuals To Access The African Court Directly’ (African Court of Human and Peoples’ Rights, 23 November 2018) <http://www.african-court. org/en/index.php/news/press-releases/item/257-the-gambia-becomes-the-ninth-country-to-allow-ngos-andindividuals-to-access-the-african-court-directly> [Accessed: 10 January 2019].

25 Bantekas and Oette, p.281.

26 Basch, p.28.

27 Ibid.

28 Ibid.

29 Ibid.

30 G. Ress, ‘The Effect of the Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order’, Texas International Law Journal, 40 (2005), pp.359, 374.

31 Victor Abramovich, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System’, International Journal of Human Rights, 6.11 (2009), p.25.

32 Basch, p.28.

33 Bantekas and Oette, p.282.

34 Kenneth Good v Republic of Botswana [2010] African Commission on Human and Peoples’ Rights 313/05.

35 Murray and Mottershaw, p.353.

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In short, systemic shortcomings severely limit the effectiveness of the RHRS in raising public awareness of human rights. Low state compliance hinders domestic implementation of these rights. For the disabled communities, however, these failures and difficulties are amplified manifold. In addition, they face difficulties in accessing justice. They are often fearful of the possible negative consequences of voicing their dissatisfaction, and are thus discouraged from making formal complaints.36 The following cases will illustrate the specific accessibility difficulties that the disabled community faces, namely the lack of representation, unfavourable interpretation of rights, and the lack of accommodation.

The issue of lack of representation surfaced as some persons with disability lack the intellectual capacity to make decisions, thus requiring another to act on their behalf when their rights are violated.37 Usually, however, there is no appropriate person to take on this role, and the law on representative action is ambiguous.38 In the European case of Skjoldager v Sweden,39 the applicant psychologist complained on behalf of residents of a care home for people with learning disabilities for being unlawfully locked in their rooms, and their right to liberty and security was being violated.40 The case was rejected on the ground that the applicant did not have a “sufficiently close” connection with the unlawfully detained patients.41 Unfortunately, this means that the disabled patients were outside the protection of the Convention.42 Second, the protection of disabled persons’ rights, even when contained in a human rights treaty, is often interpreted against their favour. In the case of Purohit,43 for example, the ACmHPR found that there was no violation of the right to personal liberty44 because the ACHPR was held ‘not intended to cater for situations where persons in need of medical assistance or help are institutionalised.’45 Regrettably, this means that disabled persons who have been institutionalised fall outside the protection of the Charter.

Third, there is the problem of lack of accommodation. In the ECtHR case of Malone v UK,46 the complainant, a wheelchair-user, complained of court inaccessibility. She had to undertake a 950km round trip to the court, be carried up the stairs, and experienced excruciating pain when using wheelchair-inaccessible toilets. Her Strasbourg complaint was rejected for failure to “appropriately bring to the attention of the court her difficulties.” 47 This lack of accommodation towards disabled persons, which leads to indirect discrimination, by the very institutions that claim to enforce and protect human rights is a shame. In short, disabled people face barriers that are complex and multilayered.48 36 Ibid.

37 Ibid., p.24. 38 Ibid.

39 [1995] ECtHR 22504/93.

40 Article 5 of the ECHR. 41 Ibid.

42 Anna Lawson and Caroline Gooding, Disability Rights in Europe: From Theory to Practice (Hart Publishing, 2005), p.24.

43 Purohit and Moore v. The Gambia [2003] Afr. Cmm’n on Hum. And Peoples’ Rts., Comm. No. 241/2001 para 85.

44 Article 6 of the ACHPR. 45 Purohit and Moore v. The Gambia [2003] Afr. Cmm’n on Hum. And Peoples’ Rts., Comm. No. 241/2001 para 68.

46 [1996] 25290/94.

47 Lawson and Gooding, p.25.

48 Ibid., p.23-4.

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The second part of the paper will now turn to consider ways to improve the effectiveness of the RHRS in relation to the disabled person’s right to liberty and freedom from discrimination; Or, metaphorically speaking, looking at ways to strengthen the “passport” to their enjoyment of freedoms. From the above, it is submitted that the main issue regarding disabled persons’ rights is a lack of awareness.Thus, education, the use of mass media and NGO involvement are ways in which public awareness of their plights can be heightened to achieve effective enforcement of the human rights of disabled persons.Firstly, education of the special needs of the disabled community, especially of those who come in direct contact with the machineries of justice, is vital. The 2017 report by the Directorate of Internal Oversight of the Council of Europe found that the ECHR, especially in relation to persons deprived of their liberty, is not taught as a part of continuous professional training or by university law faculties.49 Therefore, the Directorate suggested the integration of the ECHR into the curricula of law faculties and initial trainings of legal professionals to ensure continuous awareness of human rights issues.50 This recommendation from the European RHRS can be applied to other regions as well.

Although this recommendation is made in relation to those whose right to liberty is restricted in police custody, it is submitted that it can be similarly applied in the context of the disabled. Disabled persons are more prone to have their personal liberty restricted against their will, and sometimes with little that they can do to communicate their intentions, such as those detained in Skjoldager51. Unfortunately, this also means that they face indirect discrimination from the very institutions whose duties are to protect and enforce their human rights. Educating future legal professionals with the special needs of the disabled communities through curriculum integration, as seen in the University of Leeds Centre for Disability Studies, can solve this predicament. Prospective lawyers and judges who are better acquainted with the special positions of disabled persons will be better equipped to frame their cases or deliver decisions that better accommodate the needs of this minority community. This in turn ensures that persons with disability are free from discrimination and their right to liberty is respected and upheld, even from the very people whose duties are to protect and enforce their rights.

Secondly, the use of mass media will also be effective in raising public awareness of the rights of disabled persons. The Directorate recognises that public awareness and acceptance of reforms require “a concerted effort” to “raise the media profile” of these human rights issues. 52 This can be achieved through television appearances or radio interviews of human rights rapporteurs, or engagements in public debates.53 Promoting awareness through mass media has the potential to reach a wide audience, ensuring better domestic implementation of their rights.

This is especially useful in relation to the disabled person’s right to freedom from

49 Directorate of Internal Oversight, Evaluation of the Council of Europe Support to the Implementation of the ECHR at National Level, Evaluation (2017) 20 para 51 <https://rm.coe.int/16806f9221> [Accessed: 9 January 2019] 50 Ibid., para 53.

51 [1995] ECtHR 22504/93.

52 Ibid., para 26.

53 Ibid., para 27(a).

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discrimination. As a result of their needs differing from the general population, they are more vulnerable to discrimination. The complainant’s difficulty in accessing the courts, with unsuitable toilets and inaccessible staircases in Malone54 is an unfortunate example.

If their plight and needs are well publicised, laypersons will be able to better understand their needs, without resorting to outright or implied discrimination. The complainant would be able to have better access to justice if architects who built the court building understood her needs and included wheelchair-accessible facilities. The long journey to court could have been avoided if her request to be heard at a more convenient location had been approved by the court’s administrative staff. Thirdly, NGO involvement can potentially improve the effectiveness of the RHRS in relation to the rights of disabled people. Research done in the Inter- American system found that international NGO intervention in proceedings before the region’s human rightssystem produces a slight but positive influence on subsequent state compliance with recommendations.55 This may be because expert NGO’s have greater technical and structural resources for exercising pressure on states in demanding effective compliance,56 encouraging a bottom-up impetus in raising awareness and enforcing disabled persons’ human rights.This leads to increased pressure on the RHRS to respond more urgently to the human rights challenges faced by disabled persons’ in their regions.57 This is especially true in the Inter-American system where disability rights remain relatively unexplored. With expert NGO involvement in pushing for progress in human rights issues of the disabled community, the onerous burden of having to fight an uphill battle in enforcing their rights will be lifted from the disabled community.

The above suggestions can potentially bring positive impact on the progress of disabled persons’ human rights jurisprudence in the respective regions. The underlying shortcoming of the RHRS in relation to these two rights – freedom from discrimination and right to personal liberty - is the lack of vision. The treaties are drafted broadly to ensure its applicability to every situation possible.There have been successful applications of human rights to new domains such as the rights of children and those of the LGBT community. This same vision and imagination that allowed for the development of human rights jurisprudence that identifies, articulates and attempts to remedy the injustices people in novel domains should be applied to disabled people.58 In conclusion, the RHRS are largely effective catalysts for protection of human rights, including those of the disabled communities in their respective regions.They bring human rights principles down to their local contexts, improving effectiveness and encouraging domestic implementation. Undoubtedly, they are not without faults, each facing systemic shortcomings and low state compliances that impede their effectiveness. Disabled persons face additional challenges relating to accessibility. Nevertheless, education, mass media exposure and NGO involvement may improve the effectiveness of the systems in relation to the right to liberty and freedom from discrimination of disabled 54 [1996] 25290/94.

55 Basch, p.29.

56 Ibid.

57 Bantekas and Oette, p.282.

58 Luke Clements and Janet Read, ‘The Dog that Didn’t Bark: The Issue of Access to Rights under the European Convention on Human Rights by Disabled People’, in Disability Rights in Europe: From Theory to Practice (edited

by Anna Lawson and Caroline Gooding, Hart Publishing 2005) p.28.

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persons. Once awareness and exposure of their plights are made known, it is submitted that the protection and enforcement of human rights under these systems will be more effective. The “passport” to the enjoyment of freedom is thus strengthened, effectively empowering and enabling the disabled community to cross over the invisible borders.

Bibliography Abramovich V, ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System’, International Journal of Human Rights 6.11 (2009) Arusha, ‘The Gambia Becomes the Ninth Country to Allow NGOs And Individuals To Access The African Court Directly’ (African Court of Human and Peoples’ Rights, 23 November 2018) <http://www.african-court.org/en/index.php/news/press-releases/ item/257-the-gambia-becomes-the-ninth-country-to-allow-ngos-and-individuals-toaccess-the-african-court-directly> [Accessed: 10 January 2019] Bantekas I and Oette L, International Human Rights Law and Practice (2nd edn, Cambridge University Press 2018) Basch F et al., ‘The Effectiveness of the Inter-American System of Human Rights Protection: A Quantitative Approach to its Functioning and Compliance with its Decision’, International Journal on Human Rights, 7.12 (2010) Clements L and Read J, ‘The Dog that Didn’t Bark: The Issue of Access to Rights under the European Convention on Human Rights by Disabled People’, in Disability Rights in Europe: From Theory to Practice (edited by Anna Lawson and Caroline Gooding, Hart Publishing 2005) Congo v. Ecuador [1999] Case 11.427, Inter-Am. C.H.R., Report No. 63/99, OEA/ Ser.L/V/II.106, doc. 6 rev.

Directorate of Internal Oversight, Evaluation of the Council of Europe Support to the Implementation of the ECHR at National Level, Evaluation (2017) 20 para 51 <https:// rm.coe.int/16806f9221> [Accessed: 9 January 2019] Gosting L O and Lazzarini Z, Human Rights and Public Health in the AIDS Pandemic (Oxford: New York; Oxford University Press 1997) Kenneth Good v Republic of Botswana [2010] African Commission on Human and Peoples’ Rights 313/05 Lawson A and Gooding C, Disability Rights in Europe: From Theory to Practice (Hart Publishing 2005) Murray R and Mottershaw E, ‘Mechanisms for the Implementation of Decisions of

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the African Commission on Human and Peoples’ Rights’, Human Rights Quarterly, 36 (2014) Perlin M L, ‘Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to give Life to the UN Convention to the Rights of Persons with Disabilities’, The Geo. Wash. Int’l. L. Rev, 44 (2012) Purohit and Moore v. The Gambia [2003] Afr. Cmm’n on Hum. And Peoples’ Rts., Comm.

No. 241/2001 Renucci J, Introduction to the European Convention on Human Rights: The rights guaranteed and the protection mechanism (Council of Europe Publishing 2005) <https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-01(2005).pdf> [Accessed: 9 January 2019] Ress G, ‘The Effect of the Decisions and Judgments of the European Court of Human Rights in the Domestic Legal Order’ Texas International Law Journal, 40 (2005) Rivero M I, ‘IACHR Urges States to Protect the Rights of Persons with Disabilities at Mental Health Facilities’ <http://www.oas.org/en/iachr/media_center/ PReleases/2016/179.asp> [Accessed: 11 January 2019] Shaver L, ‘The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection?’, Wash. U. Global Stud. L. Rev, 9 (2010) <http://openscholarship.wustl. edu/law_globalstudies/vol9/iss4/4> [Accessed: 29 December 2018] Skjoldager v Sweden [1995] European Court of Human Rights 22504/93 UN Economic and Social Council, Report of the Secretary-General on the Implementation of the World Programme of Action concerning Disabled Persons: the Millennium (Geneva: United Nations, 2007) [A/62/157] Winterwerp v. Netherlands [1992] 33 Eur. Ct. H.R. (ser. A)

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The Impact of Human Rights Being Developed in a Western Christian Context: Does a Unified Global Human Rights Discourse Provide a Useful Framework for Global Political and Ethical Conversations?

Jessica Fowler

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Abstract This paper questions the extent to which human rights discourses are a useful framework for global political or ethical conversations, researching the affect of human rights discourse arguably being developed within a Christian Western context. Exploring this topic involves an analysis on the drafting process and the resulting values inherent in the most globally distinct human rights declaration, the Universal Declaration of Human Rights (UDHR), and how this may hinder the global applicability of the declaration. The cultural relativist argument, which would deem human rights discourses as a non-useful framework for global political and ethical conversations due to the diversity of ethics and values around the world, is critically analysed and arguably not as strong as initially deemed. Alternatively, it is the underlying christian theology inherent in human rights discourse, and the continuing Christian interpretations of the UDHR, which has hindered the global applicability of a set of rigid global human rights. Ultimately, it will be argued that in spite of the global input to human rights declarations, Christian Western voices are amplified whilst other religions and cultures around the globe are ignored, misunderstood and often left unprotected by human rights.

Do the historical origins of human rights declarations help or hinder universallyunderstood human rights conversations? Utilising a cultural relativist argument, this essay analyses Western Christian interpretations of human rights, using real life examples to examine the harmful discourse this produces for cultures and religions around the globe.

By drawing on scholars’ discussions it also takes a critical stance towards the cultural relativist argument to determine whether the drawbacks of relativism still allow for a strong criticism of the Western Christian context of human rights. Additionally, this essay will measure the extent to which the underlying Christian theological concepts within human rights declarations enable useful global political conversations by providing human rights with moral clarity (Zimmerman, 2011). This essay is adopting Khor’s definition of ‘human rights discourse’, consisting of declarations but also organisations, social practices and policies. The Universal Declaration of Human Rights (UDHR) will be used as a representative of human rights discourse due to it arguably being ‘the universal framework of human rights today’ (Lee, 2011, p888). ‘Western Christian context’ refers to the human as influenced by, and involved in the promotion of, Western values of individuality, autonomy and liberal democracy.

Firstly, in order to determine whether human rights discourses are hindered by a Western Christian context, it is helpful to examine the origin of human rights declarations and discuss whether this prohibits global political or ethical conversations. Analysing the UDHR’s drafting process suggests that, contrary to received understanding, it was not solely influenced by dominant Western Christian powers (Joas, 2013). Kohen (2007) argues that the UDHR provides all that is required in order to defend a universal concept of human rights, which is supported by the 154 governments that agreed to the declaration following the drafting process. The Universal Declaration of Human Rights resulted from a collaboration of diverse authors, including non-Western powers China and Lebanon who were given central voices in the drafting process (Cox & Yoo, 2009).This process involved a universalist mutual modification of values, or as defined by Joas, ‘value generalisation’, the process of adjusting one’s own traditions or values after engagement with representatives of other traditions. In this sense, we can understand the UDHR as a

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major stride towards global societal justice (Rawls, 1973).The 171 governments and 1000 NGOs (Cox & Yoo, 2009) that joined to establish the UDHR representing different global cultures and traditions ensured that all cultural and religious voices were somewhere represented in the document. Therefore, as expressed by Joas, ‘the schema Western/nonWestern is incapable of capturing this diversity’ of authors (Joas, 2013, p187).

Yet, despite the universal agreement for the UDHR in the drafting process, human rights declarations implementations are biased by Western and Christian interpretations and therefore harmful when uncritically adopted within global-scale political or ethical conversations. Bielefeld agrees with this argument, expressing how human rights movements often unconsciously propagate Christian values and continue to carry out Christian missionary work (Bielefelt, 2000, p92), contributing to the project of colonisation.

To discuss this proposition, it is useful to take into consideration the cultural relativist argument presented by Kohen (2007). This argument explains how the diverse socioreligious nature of the world prevents the dominant human rights discourse from being appropriate for global discussion and administration. Kohen (2007) uses an anecdote describing an Indian group who were appalled upon learning that Greek society cremate their deceased ancestors, with the group of Greek people equally appalled by the Indian group’s tradition of eating their deceased fathers. Similarly, Okembe-Ra (2008) suggests that despite universal agreement on the UDHR, a functioning global understanding of human rights is actually impossible due to the Western dominance of human rights discourse.

This is demonstrated through her analysis of the impact of the Western democratic ideal embedded within human rights discourse. Whilst democracy is often seen as the central Western model of freedom and equality, Okembe-Ra explores how Western human rights movements often use human rights justifications to democratise developing worlds with an overarching discourse of ‘liberating’ the oppressed (Okembe-Ra, 2008).

This has proven harmful in particular for South Africa, where in most communities the ‘mbongi’ is the central political site that is accessible to all and political power functions as customary law: where elders have positions of power due to having more wisdom (Okembe-Ra, 2008). Thus, the Western attempts of implementation of democracy often results in the replacement of the traditional ethnically-based elder leadership structures.

It must be noted that the cultural relativist argument is problematic due to the inherent assumption that all cultures and religions can be essentialized in order to be understood.

As was discussed earlier, the dichotomy of Western/non-Western is incapable of capturing the range of the world’s cultures and religions, and attempting to categorise human rights in this way ignores the internal diversity of religions and cultures. Okembe’s example of South African societies does not take into consideration the full scope of South African societies that greatly differentiate from one another. Whilst Okembe’s example of a South African culture may not be compatible with democracy, many others may function differently than mbongi leadership, and may even be compatible with democracy.

Yet, despite this criticism, the cultural relativist argument still raises some legitimate working problems with Western human rights discourse, highlighting how the Western interpretation of human rights discourse can prove harmful to non-Western societies and sometimes, as in the case presented by Okembe, even ‘erod[ing] the culture and religion of people from particular societies’ (Khor, 2013, p2). However, it must be remembered that certain mostly Islamic states rejected the Western Christian nature of the UDHR, and therefore experience less pressure to follow Western Christian standards. These

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states expressed their rejection to the drafting of the UDHR by curating the 1990 Cairo Declaration of Human Rights (CDHR) as an alternative. The CDHR is more adaptable to Islamic Sharia law. One way in which the two declarations differ is that, in the CDHR, women and men are not explicitly equal and are prescribed separate responsibilities (CDHR, 1990).

Next, we must consider whether the underlying Christian theological justifications within human rights declarations enable them to succeed in providing each individual with grounded worth and rights. In other words, do Christian interpretations really provide human rights with moral clarity (Zimmerman, 2011)? The UDHR does not contain any explicit references to God or the theological origins of our inherent human rights (Banchoff, 2011).Yet despite this, there are arguably three themes in the UDHR that have been influenced from core Judeo-Christian values. These are; ethical monotheism, the belief that God instills rights in every person to ensure equal opportunities for all, the idea that we are made in the image of God, meaning that we all have equal inherent worth and life should be treated as sacred (Sharma, 2006), and individual autonomy, meaning we have the capacity to live our lives as we choose (Peetush & Drydyk, 2015). With these values in consideration, one of the main motifs criticised for influencing the UDHR is the idea that murder is the worst crime committable (Bielfeldt, 2000), for if man is made in the image of God then it would be a sin to destroy that image. At first glance, taking this perspective of the UDHR would suggest it functions as a useful framework for global ethical conversations and applications, for it installs worth within each and every human life and thus inherently condemns power-structured crimes such as human trafficking or slavery. As expressed by Banchoff, ‘the idea that we are made in God’s image might be thought to sustain the authority of rights in a much deeper and more significant way than secular theories’ (Banchoff, 2011, p194).

However, upon closer inspection, such emphasis placed on the sanctity of individual human life in the UDHR often results in the protection of individual human rights, yet a lack of protection forcommunities, traditions or holy places. For example, there are numerous cases in which Indigenous American holy land is constructed upon for amenities such as car parks (e.g.) and parks (e.g. Bridgeport Ruin). This demonstrates how the dignity of humans can be violated by someone desecrating something holy that does not belong to them (Peethush & Drydyk, 2015), and how in situations like these the UDHR fails to provide grounds upon which sacred land is protected. Thus, despite the diverse range of authors who partook in the creation of the UDHR, human rights best serve individualistic Western Judeo-Christian societies.This argument is summarised

by Peetush & Drydyk (2015), who distinguish between personal and individual rights.

Whilst ‘personal rights’ include protection of one’s community, ancestors and non-human artifacts, ‘individual rights’ consider only the dignity of the individual human (Peetush & Drydyk, 2015), thus suggesting that personal rights would be a more inclusive and therefore useful framework for global conversations. Similarly, instead of striking a balance between individual and social responsibilities, which Witte and Green (2012) would believe would make them universally applicable, human rights declarations and discussions continue to put an emphasis on the individual which echoes the individualistic tone of the UDHR (for example, everyone and no-one). Human rights being this personspecific results in a number of negative consequences when looking at global political or ethical conversations; including how the individualistic nature of human rights means

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that control is exercised over aspects of human lives that are often considered private, including how and when we can marry (e.g. restrictions on age) (Khor 2013).

This shows that whilst the Judeo-Christian values inherent in human rights discourses provide justification for our equal and permanent worth and dignity, when it comes to the practicality of human rights protection it is not a useful framework for global conversations as it does not take into account the worth and value of those things which are not individually owned or protected. Therefore, human rights discourse conflicts with cultures or religions which place significant emotional worth on things other than individual human life. As expressed by Okembe-Ra (2008), the Enlightenment-inspired proposition of rational, individual human rights is problematic for many societies of the world, including Hindu communities, whose collectivist values involving moral obligations based on social roles conflict with the Western idea of human rights originating from our inherent worth (Peetush & Drydyk, 2015). For example, Hinduism prescribes eternal duties, putting compassion and patience as a priority as opposed to the Western view of inherent self worth. In fact, Peetush & Drydyk (2015) believe that the concept of Hindu dharma place significant emotional worth on things other than individual human life.

As expressed by Okembe-Ra (2008), the Enlightenment-inspired proposition of rational, individual human rights is problematic for many societies of the world, including Hindu communities, whose collectivist values involving moral obligations based on social roles conflict with the Western idea of human rights originating from our inherent worth (Peetush & Drydyk, 2015). For example, Hinduism prescribes eternal duties, putting compassion and patience as a priority as opposed to the Western view of inherent self worth. In fact, Peetush & Drydyk (2015) believe that the concept of Hindu dharma is more suitable for the role of universal â&#x20AC;&#x2DC;human moral obligationâ&#x20AC;&#x2122;, rather than the western liberal democratic form which has conceptual problems for religions such as Hinduism.

Having established the negatives of the Christian ethics within human rights discourse, this essay will now discuss as to whether the Western Christian nature of human rights is merely harmful for those outside of the West or whether their problematic nature even permeates into Western society.

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Romero (2013) demonstrates how the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) offer a biased interpretation of the UDHR, serving only the interests of Christian churches whilst simultaneously contributing to negative stereotypes of Islamic faith. This is depicted in the Dahlab case, in which a Swiss school teacher refused the right of a Muslim child to wear the religious headscarf. The ECHR ruled that the teacher was correct in her judgement, due to the headscarf not expressing gender equality or a respect for other students (Romero, 2013), and overall arguing that the headscarf would put the religious harmony of the school at risk. As aforementioned, examples like the Dahlab case arguably occur due to the UDHR being based on a Western individualistic understanding of religion. Therefore, they provide no protection for equal respect for group religions. As argued by Bhambra & Shillam (2009), human rights functioning from a mostly Western understanding (e.g. organisations and government bodies) means they leave little room for any values apart from liberalism, individualism and autonomy. Another example of this is the debates held

by Islamic scholars (Bhambra et al.) regarding the rights of minority Muslims in Western countries which have been repeatedly ignored in Western political discussions about multiculturalism. Here we can see clear cases in which Western human rights interpretations prove to be an inoperative framework for minority religions within the

West.This may be due to the widespread belief that Christianity is the only religion which can work alongside Western political thought to allow for an agreement on the rights of human beings (Lee 2011). Thus resulting in the tendency for government human rights bodies to act in a prejudiced manner towards non-Christian religions.

To conclude, Sharma (2006) believes that human rights are still suitable for universality despite being developed in the West. The cultural relativist argument, conversely, emphasizes the drawbacks of a universal idea of human rights because cross-cultural dialogue is impossible in a diverse socio-religious world. Since many human rights movements involve the West ‘democratizing’ and ‘liberating’ other parts of the world, accepting universal human rights would support efforts that are often harmful and result in displacement. The Christian values inherent in recognized human rights are often neglectful of community issues and rights of non-human artifacts or holy lands in favour of individualized human rights. This inherent value system marginalizes non-Christian, non-Western people in addition to minority groups in the West. Overall, despite the collaborative nature and diversity of thought involved in developing global human rights discourse, it is evident that global human rights declarations, organizations, practices and policies are not a useful framework for global political and ethical conversations.

Bibliography Banchoff, T. 2011. Religion and the global politics of human rights. Oxford: Oxford University Press.

Bhambra, G.K. and Shillam, R. 2009. eds. Silencing human rights: critical engagements with a contested project. New York: Palgrave Macmillan.

Cox, L, Yoo, J. 2009. Are Human Rights Universal? Brown Journal of World Affairs. 16(1), pp.9-20.

Heiner Bielefeldt, H. 2000. ‘Western’ versus ‘Islamic’ Human Rights Conceptions? A Critique of Cultural Essentialism in the Discussion on Human Rights. Political Theory.

28(1). Pp90-212.

Joas, H. 2013. The sacredness of the Person: A new genealogy of human rights.

Khor, L. 2013. Human rights discourse and its global network: books beyond borders.

Kohen, A. 2007. In Defense of Human Rights: A non-religious grounding in a pluralistic world. London: Routledge.

Lee, M.Y.K. 2011. Religion, human rights and the role of culture. The International Journal of Human Rights. 15(6), pp.887-904.

Lee, N. 2016. Are Human RIghts Universal or Culturally Relative? Peace Review: A Journal of Social Justice. 28(2), pp. 203-211.

Organization of the Islamic Conference (OIC), Cairo Declaration on Human Rights in Islam, 5 August 1990, available at: https://www.refworld.org/docid/3ae6b3822c.html [accessed 18 March 2019]

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Peetush A and Drydyk J. 2015. Human Rights: India and the West. Oxford: Oxford University Press.

Rawls, J. 1973. A Theory of Justice. London: Oxford University Press.

Romero,A.C. 2013.The European Court of Human Rights and Religion: Between Christian Neutrality and the Fear of Islam. New Zealand Journal of Public and International Law. 11(Special Conference Issue), pp75-102.

Sharma, A. 2006. Are Human Rights Western? A Contribution to the Dialogue of Civilizations. Oxford: University Press.

Witte, J and Green, M.C. 2012. Religion and Human Rights: an Introduction. Oxford: University Press.

Yvonne C. Zimmerman. 2011. Christianity and Human Trafficking. Religion Compass.

5(10), pp.567â&#x20AC;&#x201C;578.

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Leeds Uni Protests Martha Adebambo 08/03/2018 On International Womenâ&#x20AC;&#x2122;s Day, an emergency demonstration took place outside the Parkinson Building to stand in solidarity with over 100 detainees on hunger strike at Yarlâ&#x20AC;&#x2122;s Wood. Yarlâ&#x20AC;&#x2122;s Wood is an immigration detention centre in Bedfordshire, where over 3,000 people (mainly women) are locked up in prison like conditions indefinitely. They have committed no crime and are waiting for the outcome of an immigration or asylum claim. The centres are unethical, unnecessary and only contribute to the hostile environment for migrants. All detention centres must be shut down, no human is illegal.

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Absent Seeds AM and Peter Turley This piece was composed collaboartively and performed in London for the Unviersity Camarade IV. It seeks to negotiate disparate identities between self and land to resolve the tension born of displacement through multiple voices that compete integration of a liminal self composed of subjective memory and dissolves the boundaries between land and meaning to compose a stabel self that trancends borders.

This was inspired by AMâ&#x20AC;&#x2122;s own history of migration which was catalysed by the Partition of India 1947.

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Pickets fracture the earth

No - not earth.

Ground? Mud? No, land.

Pickets fracture the land anchored with the ahnds of ancestors.

Hired workers plant roots of withered wood yellow and old

a splintered bone

rises from the grasp

of centuries one with the infertile soil.

I rest my hand against the sand Mud, earth, Deserted land.

I see a reflection of myself

in sand.

I have searched for colours the world over and compared skin with

History pulses like a knife

through meaningless veins

of recollection veins of golden sand

Uncountable as stars that drip like

wounds from the bruised sky

fragments of a sacred carcass.

I bury corpses under barren rock, drain stagnant blood from lifeless veins.

Penetrate the earth with

empty expectations of Rivers of red scream beneath bridges

And dry.

No, will dry in my absence or burst the banks that tremble beneath the

Wait

for something that tastes like speech

pooling on your tounge.

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I have no duty to infertile land.

You have no duty to land.

Burnish whisper-thin cracks in fragile glass out of existence.

Bury shards of yourself under sand.

Nothing of substance can survive.

The airstrip drives the horizon out of you.

Mud, earth, fertile land.

Not your land.

Not my land.

Stand always on the edge of something there ready to burst beneath the weight of

waves devouring themselves

in a treaty to be

only sea.

Laugh like an injured bird at build a home of white

shrivelled sky picket bones

drive them beneath skin.

Splinter your

self.

Stuff the anywhere of your mouth with

absent language

stretched beyond the doubt of

a shadow

of tounge and lip

the lavender thickens and

grips the picket like

a child born again and

again.

Harvest and prunce.

Remove buds from shrubs, Itâ&#x20AC;&#x2122;s June now shear and store. The weather is dry.

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Shall I pluck the rose that rises in my neck like an egg.

Hatch promises inside seeds

the breed like years coiled

in claim of you and hang like fragrant words in either hand harmless.

Erect windows on partitions.

Let no nation exist unguarded inside your chest.

Open veins and arteries

Bleed on dirt, earth,

on lifeless soil.

Pick linkes from the map like loose threads And shred imagined boundaries.

Passports cannot extinguish

History rises

like the breath of

a child chased

by the moon.

Degorge splintered I of seeping syllables that stretch across skin-canvas to paint colours with hands of clocks yet to chime.

The airstrip drives the horizon out of you Hand paper to planes and fold the creases of your mind against the sweep of mountain that shrugged you.

Find beginnings in the guts of transcontinental journeys.

Derail from airspaces and present tomorrow as a gift Wrap and unwrap and

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All work in this journal is licensed under the Creative Commons AttributionNonCommercial-NoDerivs 4.0 Unported License.

No part of this work can be reproduced without prior permission. To view a copy of this license, visit: https://creativecommons.org/licenses/by-nc-nd/4.0/ All photographs within this journal were taken by the respective author unless stated otherwise.

The Leeds Human Rights Journal is a student-led undergraduate journal, published annually in the summer term. This is its sixth year running, and it remains the only journal of its kind in the country. Each year, articles are submitted by undergraduate students across a broad range of disciplines and then reviewed by their peers to maintain an excellent standard of work. The journal is a vital tool for encouraging research at an undergraduate level, where there are fewer opportunities for students to display their work.

This year, the â&#x20AC;&#x2DC;In Focusâ&#x20AC;&#x2122; theme is The Border. The thrust of the theme is to highlight the struggle many face across the globe when displaced, impeded or exploited by national boundaries, through the interrogative work of University of Leeds undergraduate students.

From analysing the human rights violations caused by cyber warfare, to the issues surrounding borders in Jerusalem, Volume VII of the Leeds Human Rights Journal aims to provide a global commentary of the human rights debates about borders on either side. The Journal also provides a platform for creatives to display their work.