Dr Eliana Cusato, Lecturer in Law, University of Essex, has published a paper titled ‘International law, the paradox of plenty and the making of resource-driven conflict’.
This article intervenes in legal debates on the relationship between natural resource extraction and armed conflict. Since the 1990s there has been a proliferation of international/global initiatives to end wars fuelled through the exploitation of ‘conflict resources’ and improve resource management in fragile, conflict and post-conflict countries. Examples of such developments include the use of commodity sanctions by the UN Security Council to restrict trade in ‘conflict resources’ and multi-stakeholder initiatives, such as the Extractive Industry Transparency Initiative. International courts have also dealt with resource exploitation in conflict situations (e.g. the International Court of Justice in the Armed Activities Case) expanding the scope of international provisions, such as prohibition of pillage.
While the consensus in the field is that these international interventions have improved the governance of natural resources in war-torn and post-conflict countries (although enforcement remains a key concern), the capacity of the law to engage with questions of resource access and distribution, which may be at the root of these conflicts, is rarely discussed. Yet, as the peacebuilding literature tells us, a failure to address socio-economic grievances may weaken the chances of positive peace and reproduce inequalities important to conflict causation. In other words, although the objective of normative/institutional interventions is to reinforce international peace and security, they seem to ignore a crucial part of the picture. This is the puzzle at the core of the article.
Until now international legal scholarship has focused on ways to improve the protection of natural resources in conflict and post-conflict scenarios to reinforce the chances of creating more stable and sustainable societies. Limited, if any, attention has been paid to the political, economic, and theoretical assumptions underpinning international rules and how these assumptions shape current responses to violence/conflict in the Global South. The aim of this article is to fill this gap, by exploring the influence of the resource curse theory (or paradox of plenty) upon legal and institutional developments in this field.
The overall argument is that the uncritical acceptance of the paradox plenty (and its hidden propositions) by scholars, institutions, and civil society lead to a marginalisation of distributive concerns at the root of violent conflict in the Global South. To demonstrate the pervasiveness of the theory in legal practices and the problems with its understanding of the causes and dynamics of resource wars, I use the Sierra Leonean and Liberian TCs as a case study.
On 18 June 2020, I hosted a roundtable on the role of mediation in Court of Protection (CoP) proceedings. Originally, this meeting was meant to be held in person, but due to events I decided to move the roundtable online, rather than delay. The aim was to get a range of stakeholders with expertise in mental capacity law, the CoP and/or mediation together to discuss the key issues arising where mediation is used in the context of CoP proceedings. The roundtable included discussion of the role of mediation in improving P’s participation (P being the subject of the proceedings).
Evidence suggests that P’s participation in CoP proceedings is limited and so part of the aim of my current research is to consider whether i) mediation provides more opportunities for participation and, if so, why, and ii) whether or not this improvement in participation is reflected in practice. The roundtable also included discussion of wider issues, including mediation’s various advantages and disadvantages, and discussions about the use of virtual mediations during the pandemic.
Despite the limitations of holding a roundtable by Microsoft Teams, the event was a success, bringing together a range of perspectives including lawyers, mediators, academics, policy makers, members of the judiciary and others. The session began with three short presentations to identify the core issues to frame the roundtable discussion. These presentations covered: an overview of the current evidence on mediation in the CoP; vulnerability and the values of participation in mediation; and, reflections on the use of virtual mediations during the pandemic. After a short break, we then moved on to the roundtable, whereby participants engaged with a multitude of topics ranging from the extent to which P participates in mediations, to which issues are most appropriate for mediation and who should fund mediations.
Clear positive reflections on the possibility of CoP mediation included: mediation’s potential to improve relationships between parties; that it can be a better form of resolution; and, that its processes are more flexible and informal. Potential challenges of CoP mediation included: dealing with power imbalances and participant vulnerability; safeguarding concerns; the potential for mediation to create delay in resolution; and, concerns about substantive justice, for example whether the outcome of mediated agreements is always in P’s best interests.
The roundtable also included some discussion of the mediation scheme, set up by a working group of experts, which is currently underway and seeking to gather evidence on the use of mediation in CoP proceedings. I will be carrying out the independent evaluation of that scheme and the roundtable discussion was invaluable for identifying some of the key issues that will need to be addressed in that report. Themes and issues identified at the roundtable will also help to shape the future direction of my research in this area more generally and I hope will facilitate further discussion between academia, policy and practice on this important issue.
I am grateful to all who took part, as well as the Socio-Legal Studies Association for funding the event through a research grant. The roundtable was held under the Chatham House Rule, which means that individual participants will not be identified, implicitly or explicitly, publicly. A full report of the roundtable will be available soon. Please get in contact with me if you would like a copy of that report (j.t.lindsey@essex.ac.uk).
The publication, titled ‘Broken companies or broken system? Charting the English insolvency valuation framework in search for fairness’, adopts a normative approach to investigate the measurement of value in English insolvency and bankruptcy cases.
In the article, the most commonly used (by courts and practitioners alike) valuation techniques are assessed against a revised communitarian, fairness-orientated framework. Such framework is based on a modified version of Rawls, Finch and Radin’s social justice concepts of fairness.
Asking questions about fairness and fair value in insolvency is particularly important due to a variety of factors. These include the increased complexity of valuation cases, where intangible assets such as cryptocurrencies and intellectual property rights feature with increasing prominence and frequency. They also include the need to counteract the increasing risks of conflict of interests with some of the parties involved in these procedures, particularly in rescue proceedings.
Answering questions about fairness in valuation cases can no longer be avoided due to the public outcry associated with the use of certain corporate insolvency procedures such as pre-packaged administrations to connected parties or company voluntary arrangements by large retailers to avoid or significantly reduce rents.
Dr. Vaccari’s article investigates the structural components of the notion of fairness, explains the need for a revised communitarian, fairness-orientated framework to measure value in insolvency, and suggests how this could be implemented in practice.
The Clinical Legal Education Handbook (edited by Linden Thomas and Nick Johnson; published by University of London Press on behalf of the Institute of Advanced Legal Studies) has launched providing law schools with a go-to-guide for establishing or maintaining their clinical programmes. Two academic members of the University of Essex Law School have contributed to this publication.
Lee Hansen, Deputy Law Clinic Director and Member of the Human Rights Centre, has contributed three chapters.
The first of Lee’s chapters provides guidance for clinics on client care to help such organisations provide to their clients a proper level of service. The chapter sets out key aspects of client care including the use of intake guidelines; client identification; time limit management; conflict screening; and the disclosure of key information to clients about the service and how their matters will be handled.
Client care has always been important but is of particular significance in the context of the current pandemic. Clinics are making changes to their regular service models to enable them to continue to assist the community throughout this unprecedented time. This may inevitably involve some new ways of working (such as the use of video conference technology) but it remains as important as ever to maintain appropriate systems and processes to ensure that clients who are placing their trust in these services, receive the best quality experience.
The second of Lee’s chapters provides guidance on effective signposting and referral. The chapter sets out key principles of effective signposting and referral, provides information about referral systems and set outs the regulatory position under SRA standards and regulations.
University law clinics often close outside of term time as students return home. Such closures also provide academic staff with much needed time to catch up on their scholarship or research which is often impossible to do during term time. In such circumstances where there are gaps in the continuity of a service it is critically important that persons enquiring for help are directed to an appropriate service that is able to assist. Again, in the current pandemic as sources of assistance are narrowed this guidance is of particular significance.
The third of Lee’s chapters provides guidance on the provision of debt advice by university law clinics. This chapter reviews changes to the regulatory landscape that largely prevent university law clinic from providing debt advice and suggests potential workarounds to support some provision in this important area. There will clearly be a significant level of legal need for debt advice in the context of the current pandemic and in its economic aftermath. This chapter therefore suggests some practical options to university law clinics to assist in meeting such need.
In addition to Lee’s chapters, Prof Donald Nicolson was asked to provide “words of wisdom” from those with many years of experience with law clinics and clinical legal education. Drawing on 25 years of experience in running law clinics (and four years as a student in a student-run clinic), Donald offered four items of advice to other clinicians:
the key to a clinic’s success is its people, so take your time selecting students and work colleagues;
never underestimate student – they will always surprise you with their enthusiasm, passion and new ideas;
take risks – don’t let the perfect be the enemy of the good; and finally,
look after yourself – don’t allow your passion for the clinic take over your life to the detriment of friends and family.
Published in May 2020
The Clinical Legal Education Handbook is freely available online in PDF here.
With ongoing concern over the impact of waste on our environment, specifically the threat to marine life from plastic, a new report takes a timely look at our laws and responsibilities relating to litter and the costs to councils of dealing with it.
Litter itself can pose severe dangers to wildlife and deface our community spaces. Consequently, one of the principal questions that we posed was whether there were any gaps in the current anti-littering regime in terms of legal measures to deal with littering, as well as responsibilities for the clearance of litter and other debris. Importantly, we also looked beyond the strict confines of the law to other potential measures to help reduce the incidence of littering.
While welcoming recent government initiatives, such as the 2017 Litter Strategy for England, the new report identifies a range of obstacles to progress on dealing with litter.
Attempts to protect our marine environment from litter are hampered by the lack of clear oversight.
In addition, the way in which litter law has evolved makes it overly-complex; a lack of clarity exists over land ownership and therefore responsibility; councils are exercising their powers in different ways, creating a ‘postcode lottery’ in enforcement; and confusion over responsibilities between different councils and agencies such as Highways England are resulting in action being delayed.
A further contribution to the report, by Professor Shahzad Uddin of Essex Business School, asks if we know the true cost of dealing with litter. His chapter, based on interviews and Freedom of Information requests, paints a picture of significant expenditure by cash-strapped councils, which is still failing to fully address the problem of litter. A survey of eight local authorities across Essex resulted in only one council, Basildon, providing a detailed breakdown of costs.
The authors have called for clarity regarding both the law and the regulation of aquatic litter; an analysis of water-borne litter levels, to inform an updated DEFRA Code of Practice on Litter and Refuse; greater cooperation; and transparency on the costs to councils resulting from litter.
They also suggest councils should provide greater incentives to businesses to take greater responsibility for their own litter and littering around premises, and that the UK learn from initiatives in other countries, such as bottle return schemes.
With the UK government proposing a new national litter campaign, the report also asks if its strategy will make councils and landowners too reliant on volunteers.
Litter Law is a second key contribution to environmental debates in recent weeks from our School of Law. In April, Essex hosted a two-day workshop featuring experts in human rights and climate change, with speakers including two United Nations Special Rapporteurs, past and present, and experts from the World Bank, NASA, our own University and academics based on three continents.
Dr Davey and Professor Hulme were assisted in their research by students from Essex Law Clinic.
This post was first published on the University of Essex website and is reproduced here with permission and thanks.
On 20 April 2020, the UK communications regulator Ofcom ruled that ESTV Ltd had breached its Broadcasting Code by airing an interview on the Coronavirus pandemic which risked causing “significant harm to viewers.”
ESTV Ltd, the licensee, is the owner of the local TV channel London Live, which serves the London area. On 8 April 2020, London Live broadcast an 80-minute interview with the former footballer and sports broadcaster David Icke, who was introduced by the presenter Brian Rose at the start of the programme as “a writer and public speaker known since the 1990s as a professional conspiracy theorist.” At the time of the broadcast, it was estimated that approximately 1.4 million people had been infected globally and the UK Government had introduced its lockdown policy to curb the spread of the virus.
Given the global Coronavirus crisis, the regulator expressed particular concern over the broadcast of Icke’s opinions which “cast doubt on the motives behind the official health advice aimed at reducing the spread of the virus.” The interviewee repeatedly suggested in the programme that the measures taken by the UK Government, other national governments and international health bodies such as the WHO were being implemented to further the malevolent ambitions of a “clandestine cult,” rather than to protect public health. While not expressly mentioning 5G technology, Icke referred, among other things, to an “electromagnetic, technologically generated soup of radiation toxicity” which, he claimed, had compromised the immune system of elderly people. Icke also expressed doubts over the use of vaccines (which are widely accepted by scientific communities as important mechanisms in controlling infectious disease outbreaks and part of a long-term solution to COVID-19), describing them as a “tidal wave of toxic shite” and any decision to make them mandatory as a form of “fascism.”
ESTV Ltd acknowledged that the programme included “controversial” and “unorthodox” material that challenged mainstream thinking, but considered it to be an exploration of Icke’s “extraordinary” views about the origins of the virus and governments’ responses within the limits of Article 10 of the European Convention on Human Rights. The regulator stated that the licensee was not, in principle, prohibited from broadcasting opinions which diverged from, or challenged official authorities on public health information and that Icke had a right to hold and express these views. However, Ofcom queried whether in the current unprecedented circumstances the programme had ensured that members of the public were “adequately protected” from the inclusion of potentially harmful material in compliance with Rule 2.1 of the Broadcasting Code.
The regulator stated that some viewers might well have expected that Icke’s opinions would not necessarily be scientifically or otherwise empirically supported, but they had also been likely to be “particularly vulnerable” during a global public health emergency. The extended nature of the interview, its sensitive subject matter, the severity of the situation and the degree of challenge (or the inclusion of opposing views) were factors that weighed significantly in the decision-making. Ofcom found that for some 80 minutes, ESTV Ltd had provided David Icke with a platform to set out highly controversial and unsubstantiated claims (which the licensee itself considered “may be absurd”) with minimal challenge within the programme. Moreover, the impact of the limited challenge that was present was minimised by the presenter’s final comments to the interviewee: after shaking hands, Brian Rose said that David Icke had “amazing knowledge and amazing perspectives about what’s going on here.” The regulator concluded that the licensee had failed to adequately protect viewers from potential harm and considered the breach of Rule 2.1 to be serious.
Ofcom directed ESTV Ltd to broadcast a summary of its ruling. Its Sanctions Panel will consider the matter further. Ofcom’s decision was delivered within just two weeks, as the regulator prioritises cases linked to Coronavirus whereby programmes may have helped spread misinformation or included material of a misleading nature about the illness and public policy in relation to it.
The original position can be summarised by the Government’s mantra ‘stay home, save lives’ which became ingrained in the minds of the general public. We were permitted to leave the house for one of the following reasons only: daily exercise, medical need, caring for vulnerable individuals, to shop for essential supplies, and to go to work if it was not possible to work from home. All shops, except for those selling essential supplies such as food and medicines, were closed. We were no longer permitted to socialise, face-to-face, with people outside of our households. Social distancing became the new norm with guidance emphasising that people should maintain distances of 2m from individuals outside of our households. The changes led to the need for adjustments with many people working from home and children being educated from home. No one could have anticipated how different our lives would have become in 2020. Nor could we have predicted the restrictions on our civil liberties deemed necessary to protect the individuals most vulnerable to the virus such as the elderly and those with pre-existing health conditions. At first, many people accepted the legitimacy of these measures. Over time, however, many people in support of the Coronavirus Law and the corresponding guidance have become concerned over constraints on their civil liberties.
The restrictions on our daily lives were (and still are) overwhelming and perplexing for many people. While these measures felt short of the tough stance taken in countries such as Russia and Spain, where people were not even allowed to leave their home for daily exercise, we are not used to the state having such control over our day-to-day lives. In the space of just over two months, not only has the legal landscape shifted dramatically but so has the social landscape. Actions once seemed natural, such as hugging and visiting close relatives, were deemed as potentially dangerous and unlawful. In order to hope to continue to enforce lockdown law, the guidance accompanying the law needs to be seen as legitimate since legitimacy fosters public obedience.
At the time of writing, in June 2020, over 36,000 people in England have died from the coronavirus. The daily death toll has decreased gradually which has led to changes in the restrictions which will apply from June 1st and June 15th. From June 1st, schools re-opened (albeit just to reception, year 1 and year 6 pupils) and some workers were able to return to work, including those working at shops selling non-essential goods. We can now go out more than once a day for daily exercise, we will have more choices in which shops to visit and we can meet in groups of up to 6, if these meetings take place outside and there is social distance. Further relaxations are to follow on June 15th. Social distancing seems likely to continue for the foreseeable future although there are talks of reducing this from 2m to 1.5m.
Since my original reflections on the coronavirus law, the social and legal landscape has changed significantly. From both an academic and a personal perspective, it is challenging to remain up to date with the guidance accompanying the Coronavirus Law. This law and the corresponding guidance have been likened, by some, to George Orwell’s works of fiction such as 1984. It is argued that the legitimacy of the government guidance is under threat. At best, the guidance lacks clarity and, at worst, is contestable, ambiguous and even contradictory in nature. Indeed, the government guidance accompanying the Coronavirus Law has been voluminous, confusing and, at times, contradictory. The rules change so rapidly that the metaphorical ink on the paper barely has the chance to dry before pages are ripped out and replaced with fresh pages. This raises issues about the diminishing legitimacy of such government guidance and perhaps even of the Coronavirus Law itself. What is the democratic legitimacy of guidance provided via policy documents, press briefs and pages on government websites? In other words, what democratic legitimacy does guidance have which has been created to support law?
The Coronavirus Law contains provisions which permitted the police to intervene to arrest those who had committed breaches of the social distancing requirements. Police have been involved in cases where, for example, large parties have been organised and when offences have been committed against key-workers, such as coughing on them. The key difference with the Coronavirus Law compared to many other laws is that it is emergency legislation which has not been through the usual checks and balances. Worse still, the law has been interpreted and applied in the light of rapidly evolving government guidance rather than a single, thoughtfully drafted policy document. The government has provided guidance on the law via website summaries, reports and press briefings. Sometimes these sources have been contradictory and have changed rapidly with the passage of time. Although laws change over time and what might constitute lawful conduct one day and not the next (and vice versa), it is argued that actions by state officials based on guidance rather than on specific provisions from the Coronavirus Law (such as police actions) raises issues of legitimacy. The far-reaching nature of the guidance and emphasis on controlling day-to-day conduct makes it difficult to be certain that the guidance is being observed. These are challenging times for the government and members of the public alike but law and documents which seek to define, interpret and assist in developing law ought to have legitimacy also.
There is little doubt that the furore over Dominic Cummings and other senior government officials, who left their homes for non-essential reasons, in contradiction of the guidance provided by the Government, has led to questions about whether the public can be expected to follow guidance and face sanctions if they do not. In particular, if those in authority are not seen to follow guidance they have helped to create, it undermines the legitimacy of the guidance. The perception of differential treatment and the confusing nature of the guidance documents also serves to distract the public from the government’s main objective behind the Coronavirus Law: the protection of the health and well-being of vulnerable groups in society. Will these relaxations be welcome measures to improve the country’s economic and psychological well-being or measures which will lead to further confusion about government guidance and a corresponding weakening of the legitimacy of the Coronavirus Law itself? Only time will tell.
Geoff Gilbert, Professor of International Human Rights and Humanitarian Law, University of Essex
As Paul White has written on these pages, success in our COVID-19 response in humanitarian settings should not be measured in the ‘number of webinars, seminars, guidance and strategies’. Part of achieving success, though, is ensuring that humanitarian actors in the field are aware of key laws, so as to ensure that governments fulfil their obligations and displaced persons do not fail to obtain their rights. While this pandemic raises new challenges, there are well-established bodies of law to keep at the front and centre of responses, including international human rights law, international refugee law and international humanitarian law.
If governments and humanitarian actors are to safeguard displaced persons during this pandemic, they need to be aware of all of the law, all of the time. Only by constantly reasserting these legal commitments will governments be forced to leave no-one behind.
Protection is often thwarted by lack of access – access to safety, access by humanitarian actors, and access to services. According to UNHCR, as at 24 April 2020, there had been no serious outbreaks of COVID-19 in any refugee or IDP camp or settlement. However, governments had restricted access to protection, curtailed the rights of displaced people in their territories, and had limited humanitarian agencies’ access to them in some cases. Let’s look at each challenge in turn, and the pertinent law that can help our response.
Access to safety
Much has been published on the right of refugees to seek and enjoy asylum and protection from refoulement, despite states’ power to control their own borders in the light of the pandemic. Yet, article 14 of the Universal Declaration of Human Rights and article 33(1) of the Refugee Convention mean that states cannot use their power to control borders to override the rights of refugees and people seeking asylum. In addition, article 12 of the International Covenant on Civil and Political Rights provides the right to freedom of movement, including the right of individuals to leave their country of nationality. Article 12 also protects IDPs seeking safety within their own country.
Individuals caught up in conflict must be allowed to move within the country in order to obtain protection. According to Additional Protocol I to the Geneva Conventions, parties to an international conflict cannot constrain the movements of non-fighters ‘in order to attempt to shield military objectives from attacks or to shield military operations’ (art 51(7)). In an internal armed conflict, Additional Protocol II provides that ‘displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand’ (art 17(1), emphasis added). Principles 5–9 of the Guiding Principles on Internal Displacement are about trying to prevent displacement, but Principle 15 recognises that when people are displaced, they have the right to leave their country and seek asylum.
Access by humanitarian agencies
Under its 1950 Statute, UNHCR has a unique mandate to provide international protection to refugees; its extended mandate includes conflict-driven IDPs and other persons of concern. To fulfil that role, UNHCR needs access to these populations, and governments have a duty to cooperate with UNHCR in the exercise of its functions (Refugee Convention, art 35).
During the pandemic, however, access by humanitarian actors has been restricted, particularly in conflict zones – even though they face the same COVID-19 threat. To resolve this, regard needs to be had not just to human rights law, but also to the international law of armed conflict and the international rule of law which strangely have been missing from much of the current analysis.
Under the 1949 Geneva Conventions, the International Committee of the Red Cross and ‘any other impartial humanitarian organization’ (Geneva Convention IV, art 9; Additional Protocol I, art 5; Additional Protocol II, art 18(1)) may undertake care for the sick, while parties to the conflict should permit ‘relief actions which are humanitarian and impartial in character and conducted without any adverse distinction’ (common art 3). The UN General Assembly has also affirmed that international and national rule of law applies to states and international organizations. Read with the 2018 Global Compact on Refugees, which ‘emanates from fundamental principles of humanity and international solidarity, and seeks to operationalize the principles of burden- and responsibility-sharing to better protect and assist refugees and support host countries and communities’ (para 5) and the humanitarian principles that include humanity, neutrality and impartiality, it is clear that states have obligations to ensure access so that people’s essential and medical needs can be met.
Access to services
Displaced people need to be able to obtain a variety of services, whether they are refugees or IDPs. During the pandemic, the most obvious is access to health care. However, when it comes to accessing health care, legal status matters. IDPs, by definition, are within their own country so should have access to all services as normal (unless, of course, their displacement resulted from an event that disrupted services for everyone). As for refugees, it will depend on the laws of each country, but if a country has recognised someone as a refugee then he or she will ordinarily be treated the same way as a national. However, asylum seekers may not have full access to health care. That said, they should always have access to emergency care – there should be no discrimination based on the fact that they are seeking asylum.
Refugees, asylum seekers and IDPs must be able to access the highest attainable standard of health (International Covenant on Economic, Social and Cultural Rights, art 12). If people are scared that seeking medical advice might lead to their detention and removal, then they will be more likely to conceal their presence. And if they are contagious, then this has huge risks for the virus spreading. It therefore makes sense – for everyone – to ensure that displaced people have as much access as possible to testing and health care.
Equally, they need access to information, which includes access to the internet. Access to the internet for information has been recognised as a right by the Human Rights Council, and governments must ensure there is no digital divide. As UNHCR’s guidance has made clear, that information must be understandable by refugees, asylum seekers and IDPs, possibly requiring governments and UNHCR to combine their resources.
Likewise, everyone has the right to an adequate standard of living (ICESCR, art 11). What is adequate in the time of a global pandemic that requires social distancing is clearly different from what would be acceptable at other times. It should also be noted that over 60 per cent of refugees live in urban settings, not camps, so the ability of international organisations to regulate accommodation in such circumstances is limited.
The flipside of in-state services is detention by the state. Quarantining those who may have the virus is undoubtedly permitted, but it must be provided for by law, be proportionate and last for no longer than is necessary. When it comes to those held in immigration detention, governments must ensure that people are not placed at greater risk of infection from COVID-19 – social distancing and proper sanitation must be part of any detention regime.
Conclusion
The lives of displaced people are already complicated and challenging: COVID-19 has added a further layer of complexity, if not outright threat. Within the already complex context of displacement, the pandemic presents new and pressing issues for all the various actors – but existing law can address these challenges provided that we have the knowledge and will to use it. Refugees and IDPs have to be resilient to survive displacement, but, as Jane McAdam has made clear on these pages, they are in situations of vulnerability, and when states are threatened, the ‘outsider’ is frequently left unprotected.
Before the COVID-19 crisis there was the refugee crisis: protecting forcibly displaced persons in a global pandemic
UNHCR have released a set of documents relating to protection considerations in the context of the COVID-19 response. Roughly 75% of refugees live in overcrowded camps, settlements or shelters around the world, where they lack access to adequate sanitation and are therefore extremely vulnerable to the COVID-19 pandemic.
Listen to the new RightsCast episode, in which Dr. Madeline Garlick of UNHCR and Professor Geoff Gilbert of the University of Essex discuss the work to protect the 80 million people of concern to UNHCR globally and how that work is adapting to the challenges posed by Coronavirus.
Their enlightening conversation ranges from a reminder of states’ obligation to provide access to asylum in a context of closed borders, to how refugees are contributing to health responses in their communities, and ultimately ends with a call for strengthened international cooperation in light of the Global Compact on Refugees.
Lorna McGregor, Professor of International Human Rights Law at the University of Essex and Director of the multi-disciplinary Human Rights, Big Data and Technology Project; and Dr. Ahmed Shaheed, Senior Lecturer in Law, University of Essex, UN Special Rapporteur on Freedom of Religion or Belief and Chairperson of the URG’s Board of Trustees
The UN Secretary General has characterised the pandemic as a ‘public health emergency … an economic crisis. A social crisis. And a human crisis that is fast becoming a human rights crisis’. Other UN agencies predict global mass unemployment and severe food insecurity. If urgent action is not taken, existing structural inequalities will expand and entrench and threaten the protection of human rights and the rule of law worldwide.
As the COVID-19 pandemic has pushed the world online, technology has been critical to coping with lockdowns and keeping our communities resilient and functioning. It has enabled many people to access essential public health information, and deal with isolation by maintaining contact with families and friends and sustaining existing and building new communities. It has also been critical for accessing public services, such as through e-health services; continuing education and work online; and allowing key institutions, such as parliaments and courts, to continue to function.
However, these possibilities have been denied to many people across the world due to the ongoing digital divide. The COVID-19 pandemic has laid bare the persistence of the digital divide in its most basic form: lack of physical access to the internet. Despite recent advances in mobile-cellular network coverage, only ‘half of the world’s population’ are current internet users, with only 20% in the least developed countries. Internet access is also shaped by ongoing structural inequalities. For example, worldwide, a stark gender digital divide exists, with the OECD reporting that, ‘327 million fewer women than men have a smartphone and can access the mobile Internet’. The UN Secretary-General has also pointed out that older persons and persons with disabilities are disproportionately affected by the digital divide.
During the COVID-19 lockdowns, the digital divide has meant a lack of access to work, critical services, health information and education for individuals and groups in positions of vulnerability, entrenching existing inequalities. Some parents have reported having to choose between whether to eat or top up data for their children’s education. The digital divide has also prevented people subject to domestic violence – which has risen significantly during lockdown – from reporting and accessing help.
The COVID-19 pandemic underscores the urgent need for immediate action to address the lack of physical access to the internet. However, that will not be enough. States also need to address the complex range of factors that sustain the digital divide, even once digital access is secured, including low digital literacy skills and security concerns.
The following five principles are immediate priorities for states in responding to harm caused by the digital divide during the COVID-19 pandemic. They are not exclusive but should be the first steps towards a multi-layered and multilateral strategy to closing the digital divide:
Guaranteeing Internet Access as a Human Right and Public Good
States must recognise that internet access is a human right and a global public good. They should pursue policies grounded on human rights principles to fulfil that obligation, including equality and non-discrimination, inclusion and empowerment, transparency and access to remedy, and respect for human dignity and privacy, paying particular attention to digital divides experienced by particular groups, such as older persons.
Increasing Availability and Acceptability of Digital Infrastructure
States should take urgent action to ensure that internet access is available to all. This includes increasing the availability of broadband access of acceptable quality and speed through targeted investments, public-private partnerships, regulation, and accelerated international cooperation. States should not resort to internet takedowns and other forms of internet disruption.
Increasing Accessibility and Affordability of Digital Services
States need to take urgent action to enable people to get online. This includes facilitating ‘access to and affordability and use of connected digital devices’, removing barriers to internet access, such as data caps, promoting net neutrality, and increasing access to free public Wi-Fi. They also need to roll-out digital literacy programmes to increase digital skills, ensure accessibility and adaptability for persons with disabilities, and increase locally relevant content.
As digital exclusion often results from wider structural inequalities, strategies to overcome the digital divide need to be embedded in wider strategies to address existing inequalities, such as gender divides and stereotypes in society.
Targeted strategies are needed to ensure access to physical devices and digital literacy to ensure that:
the offline right to education applies online, equally and in a non-discriminatory way;
states provide remote access to health care, including for mental health, in order to avoid unnecessary potential exposure to COVID-19 by limiting visits to healthcare centres but only in a way that complies with human rights-based approaches to health care, by being equally accessible, affordable and acceptable;
ensure access to essential services, including food, by ensuring that services are not digitally excluding;
offline services and support for domestic violence are moved online, as recommended by UN Women in relation to violence against women, and increase ‘online advocacy and awareness campaigns’.
Specific measures must be taken to ensure the most vulnerable can seek the help they need online such as providing toll-free 24-hours hotlines, free texting services and online chats, remote psychological and social services as well as new and creative solutions to support those most in need. Attention should be paid to intersectional vulnerabilities that reinforce and aggravate digital exclusion.
However, the introduction or strengthening of online public services must not lead to new inequalities after the pandemic. This could arise through the permanent replacement of face to face health care or education with online services. Rather, online public services should complement and improve existing services.
Empowering People by Addressing Disinformation and Hate Speech without Censorship
States must take effective measures to ensure safety online, including through cybersecurity measures. The COVID-19 pandemic has resulted in a surge in hate speech and hate crimes against groups scapegoated for the spread of the virus. States and internet companies must address disinformation in the first instance by themselves providing reliable information, through robust messaging in relevant languages and including sign language. Addressing hate speech requires robust implementation of community standards by service providers while protecting free speech in line with international standards.
Enabling Access Online Should Not Be A Cause for More Surveillance
States must not respond to the pandemic by widening and repurposing counterterrorism tools or introducing new surveillance tools, such as some forms of contact-tracing apps, as this could risk of a new era of surveillance, censorship, repression and discrimination even more severe than post 9-11. States must ensure that they continue to comply with their human rights obligations and that any limitations to human rights meet the specific purpose of preventing the spread of COVID-19 or injury to others and are lawful, necessary and proportionate, including time-limited and with effective safeguards in place. Failure to do so would reinforce the digital divide.
Lessons from COVID-19: Serious Commitment to Overcoming the Digital Divide
At the national and international level, very little action appears to be underway to address the urgent need to close the digital divide as one means to address inequalities in access to basic services during the COVID-19 pandemic. If states fail to take urgent action to address the divide, they will be failing in multiple human rights obligations and they will worsen the multiple crises identified by the UN Secretary-General.
If they take these steps, they will not only be addressing the serious harm being experienced by so many non-internet users but will also be taking concrete action to actually realising the longstanding international commitment to address the digital divide. Response to COVID-19 has brought home the urgency of realising SDG 9c on digital inclusion. The increasing reliance of technology also shows the importance of maximising the benefits of technology while mitigating risks, and the relevance of the human rights approach to technology. In addition to immediate responses identified above, investments in effective long-term solutions are vital. Harnessing digital technologies for good requires multi-stakeholder approaches at both the national and international levels, and, as the ITU Connect 2030 Agenda identifies, must pursue the five goals of growth, inclusion, sustainability, innovation and partnerships.
This post first appeared on the Universal Rights Group website and is reproduced here with permission and thanks.
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