Redesigning Slavery Through Law: A Play in Four Acts

Photo by Hermes Rivera

Dr. Marija Jovanovic’s work was selected for presentation at the 2021 Midyear Meeting of the American Society of International Law.

The meeting, which will be held on 11-12 November 2021, encompasses several events, including the Research Forum, which features cutting-edge international law scholarship by more than 70 authors and is open to the public. Registration details are available here.

Marija’s presentation is titled ‘Redesigning Slavery Through Law: A Play in Four Acts’ and will be hosted by the Reimagining International Law panel, chaired by Professor Noah B. Novogrodsky of the University of Wyoming College of Law.

Marija’s paper investigates, in particular, the relationship between the law and slavery including ‘modern slavery’. It argues that just as states in the Global North have maintained ‘traditional’ slavery using law as a primary tool, so have they substituted the old with ‘modern slavery’ to accommodate and fulfil the needs of the present-day global economic order and political reality. This contradicts their projected image of the champions of the abolitionist movement and the recent global action against ‘modern slavery’.

This work is situated within Marija’s broader research on modern slavery and human trafficking, which explores how various aspects of law both contribute to and work to suppress these practices. It builds on her doctoral work, which is further developed in the book on State Responsibility for ‘Modern Slavery’ in Human Rights Law: A Right Not to be Trafficked forthcoming with the Oxford University Press in 2022.

Basque Separatist Group ETA Lowered Its Weapons 10 Years Ago. Has Reconciliation Truly Happened?

For too long, Basque society remained petrified and silent

Screenshot of YouTube/BBC video depicting footage of ETA members putting ‘arms beyond use’ in October 2011.

Ten years ago, on October 20, 2011, the Basque armed group ETA (Euskadi Ta Askatasuna, “Basque Country and Freedom”) finally declared “a definitive cessation of its armed activity.” This was what Basque and Spanish societies had long been waiting for.

It would take them until 2018 to formalise their dissolution, but October 20 is marked in the calendar as a day of liberation, especially for those whose lives were at risk. The Basque Country was finally going to have the chance to become a free and “normal” society like any other.

Jesús Eguiguren, one of the tallest figures in Basque politics in recent decades, was also relieved. Days after ETA’s much-awaited declaration, when asked what normality would mean to him, he said: “For me, it means the freedom to eat pintxos in the Old Town” of Donostia-San Sebastian, my hometown. Because of being directly threatened by ETA for his political opposition to Basque independence, the old town had been a no-go area for Eguiguren, but also for thousands more.

ETA was formed in 1959, during the Franco era, with the goal of seeking self-determination and independence for the Basque Country. Since the late 1960s, ETA was responsible for more than 850 deaths in the Basque Country and other parts of Spain. This figure underestimates the pervasive sense of fear caused by ETA and its supporters. In the last 15 years of their existence, ETA, through extortion and threats, specifically targeted politicians, academics, police officers, journalists, and civil servants who disagreed with their totalitarian agenda. Approximately 3,300 men and women were forced to live with police escorts.

The Basque Country is a region with a strong national identity divided between the north of Spain and the southwest of France. With fewer than three million inhabitants, it’s hard not to have known someone who paid a high price for being who they were, sometimes the highest of all prices—their life. In my case, this included a primary schoolmate, whose father—a police officer—was killed by the armed group; a teacher in the same primary school whose husband, a journalist, was murdered; a sport’s teammate’s father, who reluctantly moved to Madrid after receiving serious threats; one of my university professors, and my friend and former boss, the Basque parliament’s high commissioner for human rights between 2004 and 2014, Iñigo Lamarca, whose name appeared in one of ETA’s hit lists.

A lot has changed in the Basque Country in the past 10 years. Nobody’s life is at risk as a result of their politics, and that is no mean feat. My nephew and nieces, who are 11 years old, are blissfully unaware of the environment of low-intensity violence that permeated society up to a decade ago.

Basque society is still working out a public memory about that time. Victims of ETA’s violence have received recognition from public institutions, but social recognition has been much slower, and more timid. In towns and communities where Basque independence was the preferred political choice, ETA suspects were often treated like heroes. At the same time, credible reports of police torture were systematically dismissed by the Spanish government, tarnishing the public image of the State and its institutions. Despite multiple reports from independent investigators and international human rights bodies, the official line was, and largely remains, that the torture allegations against the police were simply lies spread by terrorists—ETA members.

Spanish public authorities and a sizeable majority in Spanish society have a long way to go to recognise that torture and ill-treatment were an obnoxious part of the anti-terrorist strategy in the 1980s, 90s and 2000s. As I explain in my new book Spain and its Achilles’ Heels: The Strong Foundations of a Country’s Weaknesses, these practices harmed the credibility of the police as a fully democratic institution and made life even more difficult for the officers who respected the rule of law.

In the 2000s, ETA was being cornered by the police, but the decline in popular support was a key reason why the group stopped their violence for good in 2011. In previous decades, ETA benefited from long periods of silence of large parts of Basque society who believed their discretion would keep them away from the attention of ETA and their informers. Outstanding exceptions must be noted, including the case of “Gesto Por la Paz” (“Gesture for Peace”), an organisation that convened silent rallies the day after each murder and on a weekly basis for 25 years, starting in 1986. It was a modest gesture that, nonetheless, required a large dose of bravery.

Over time, Basque society empowered itself to make it clear that ETA did not represent them. The sociological statistical survey of the Basque Country shows that fewer than 25 per cent of people totally rejected ETA in 1981, but that number went up to 60 per cent by 2000 and remained at that level for 10 more years, while ideological support for ETA was minimal in the 2000s (around 1-3 per cent).

The Basque Country has changed substantially for the better in a new spirit of calm, peace and rediscovered freedom. More time will be needed, however, to strengthen bridges and walk decisively towards reconciliation. Police officers, bodyguards, journalists and politicians were unjustly killed, and for too long the Basque society remained petrified.

In shifting public perception in Spain, a new film can potentially make a difference: Maixabel dramatizes the true story of Maixabel Lasa, a brave activist for peace, memory and reconciliation, whose husband was killed by ETA in 2000. A few years ago, Maixabel met face-to-face with the man who killed her husband. The killer had distanced himself from ETA in a difficult process of atonement.

Maixabel Lasa’s testimony is one of a handful of conversations during the last decade between ETA victims and repentant ETA members. Most of these meetings were held in private, but some of the participants are talking about their experience in schools, and conveying their emotions at other public events.

Other events have brought together victims of ETA, victims of GAL (state-sponsored terrorism of the 1980s), as well as victims of police torture. Also, pro-independence politicians have apologised for the damage they caused through their decades-long complicit silence.

Working out the past in a plural, inclusive and respectful way will take time, and the Basque Country only recently got rid of ETA’s yoke. Historical memory is a powerful reminder that freedom should not be taken for granted.

As my mum once said to me when talking about Basque peace and reconciliation, it’s shocking how quickly one gets used to normality, when people are not killed for their ideas.

This piece first appeared on Global Voices and is reproduced on our ELR blog under a Creative Commons Licence. The original post can be accessed here.

Front-of-Pack Nutrition Labelling: Experts Come Together to Discuss National, Regional and Global Challenges for Regulation

Photo by Penn State on Flickr

In this post, Dr Nikhil Gokani (School of Law, University of Essex), an expert on regulating food labelling, writes about a major conference he organised with partner institutions.

On September 9 and 10, 2021, the Health and Medical Humanities Hub at the University of Essex, the Law & Non-Communicable Diseases Unit at the University of Liverpool and the Global Center for Legal Innovation on Food Environments of the O’Neill Institute for National and Global Health Law at Georgetown University jointly held a major online conference on the national, regional, and global regulatory implications of front-of-pack nutrition labelling (FoPNL).

Unhealthy diets are a leading cause of death and a significant factor in the development of non-communicable diseases (NCDs) as they are associated with an increased risk of overweight, obesity, and diet-related NCDs such as diabetes, cardiovascular diseases and cancers. To tackle the growing burden of poor nutrition, the World Health Organization (WHO) recommends that states implement FoPNL as part of a comprehensive approach to healthy diets. FoPNL displays simplified, at-a-glance graphical information on the front of food and beverage packaging. It helps consumers understand the nutritional quality of foods and beverages easily and more quickly, and can lead to healthier purchasing decisions, especially with members of lower socioeconomic groups. Even though the evidence base is still developing on how specific forms of FoPNL can best meet consumer needs, FoPNL is most effective when it is interpretive and makes an evaluative assessment about the nutrition quality of food and beverage products.

Many states have now introduced, or are considering introducing, a variety of voluntary or mandatory FoPNL schemes within their respective jurisdictions. These schemes differ in objectives and, consequentially, in design. In particular, the level of public health protection offered by these different schemes varies, not least as the ease of understanding, and the level of interpretation required by consumers to understand the nutrition composition of the food is different for each scheme. In light of the proliferation of national schemes, discussions are being held at the regional and global levels on the harmonization of FoPNL. At the same time, these developments face strong opposition from powerful food and beverage businesses.

In this context, the conference brought together global actors. It gathered over 250 participants from 39 countries, from Antigua to Vietnam, and provided a discussion forum where academics from various disciplines, international civil society organizations, and government and public health agency representatives discussed a range of overarching issues relevant to the regulation of FoPNL. The conference was organized into six panels.

Panel 1 began the event with a discussion on the importance for states of adopting FoPNL, and in particular interpretive FoPNL. Panellists discussed the rationale for FoPNL and the scientific evidence supporting this intervention, including the role of FoPNL in building healthier food environments and reducing health inequities, as well as the support it has received from the international community. Panellists explored states’ obligation under international human rights law to uphold the right to the enjoyment of the highest attainable standard of health and other related human rights, such as the rights to adequate food, information, and the benefits of scientific progress, through the implementation of FoPNL.

Panel 2 focused on national experiences. In particular, panellists discussed the development, adoption and implementation of legislation mandating warning signs on certain foods and beverages in the Americas – with case studies form Mexico and Uruguay – and government-endorsed schemes in Europe – not least the Nutri-Score which originated in France and UK multiple traffic light labelling. This panel highlighted the importance of gathering evidence and galvanizing public support, in addition to raising key questions concerning the different objectives that different FoPNL schemes pursue, as well as the nutrient profiling models underpinning them.

Panel 3 concluded the first day by looking at how national schemes had been – and could be – contested at the World Trade Organization (WTO) Technical Barriers to Trade (TBT) Committee and, were a formal legal dispute to arise before the WTO Dispute Settlement Body or an international arbitration tribunal, what arguments could be made and how they could be addressed. Ultimately, all panellists agreed that the question was not so much the lawfulness of FoPNL but its implementation. Under this framework, it is indeed possible for states to adopt effective FoPNL schemes, but they will be more equipped to do so well if they are mindful of their obligations under international trade and investment law and if they anticipate potential legal disputes (even if these disputes never do arise). In fact, linking the discussions of Panels 1 and 3 together, while states have some degree of discretion as to how to regulate FoPNL, it is clear that they have an obligation to do so under international human rights law.

One the second day, after discussing national experiences, the focus moved to regional harmonization and global standards. Panel 4 focused on the experience of the European Union (EU) and the anticipated developments following the European Commission’s repeated announcements that it would publish a proposal for an EU-wide FoPNL scheme in 2022. The discussions highlighted the limits of EU law as it currently stands, preventing Member States from mandating FoPNL at national level. After hearing the plans of the European Commission, panellists analysed the imperative for the EU to adopt a regulatory framework introducing an EU-wide, mandatory, interpretive FoPNL scheme, or, at the very least, a framework that does not prevent Member States from adopting mandatory FoPNL at the national level in the absence of enough political will to act effectively at regional level.

Panel 5 focused on the experience in Latin America and the Caribbean, bearing in mind that an increasing number of countries have already regulated or are in the process of regulating FoPNL, and that regional bodies, such as MERCOSUR and CARICOM, are reflecting on common rules. In the case of South America, panellists stressed that trade-related arguments were often used to halt or delay national FoPNL measures, though MERCOSUR empowers countries to take unilateral measures to protect public health. In the case of the Caribbean, panellists emphasized the flaws in CARICOM’s process, including due process concerns related to the food and beverage industry’s disproportionate influence in policy decisions. They also addressed the use of inaccurate trade-related arguments as a barrier for regional progress on FoPNL. In turn, in North America, panellists echoed the above concerns on the use of trade agreements as barriers to achieving health-related goals, inspiring contradictions in policy decisions as a result of political swings that endanger the sustainability of public health policies.

Finally, panellists expanded the discussions from the regional to the global plane. Panel 6 concluded the proceedings with a discussion on the role that Codex Alimentarius standards could play in promoting or hindering effective FoPNL schemes. In particular, panellists discussed what the international community could do to promote better consumer information through the adoption of common standards on FoPNL, not only at a regional but also at a global level. They also reflected on how to ensure that these standards were an effective tool of public health protection, rather than subservient to the food and beverage industry’s interests, and more specifically how the voice of public health could be better heard in this joint commission of the WHO and the UN Food and Agriculture Organization.

Having discussed the national, regional, and global regulatory implications of FoPNL, with a particular focus on the policy debates in the Americas and Europe, this conference made clear that comparisons between different FoPNL schemes should indeed be drawn with caution, paying particular attention to the objectives each of these schemes set out to achieve. The devil lies in the detail, and the law and public health communities need to tread cautiously if they are to resist the opposition from powerful food and beverage industry actors and ensure that FoPNL schemes effectively serve the interest of consumers and the protection of public health.

Nevermind at 30: Why the Nirvana Baby Lawsuit is a Warning for Parents

Photo by Jurian Kersten

Alexandros Antoniou, Lecturer in Media Law, University of Essex

Nirvana’s album Nevermind has reached its 30th anniversary and is under more scrutiny than ever as a result of a lawsuit recently filed by the former cover-star.

Spencer Elden, the underwater baby tempted by a dollar bill on a fishhook, is suing the band and Kurt Cobain’s estate for having “knowingly produced, possessed, and advertised commercial child pornography”. The claim states that the band benefited financially from their participation in his “sexual exploitation”. Elden now seeks a civil remedy of US$150,000 per defendant for the “lifelong damages” he claims to have suffered.

Originally inspired by Cobain’s fascination with waterbirths, it has been said the cover can be interpreted as a comment on the values society imparts to the youth. The same picture is, however, interpreted differently in the lawsuit which attempts to weave in the idea that the image was designed to elicit a sexual response from viewers.

It goes so far as to suggest that Cobain “chose” the image depicting Elden “like a sex worker – grabbing for a dollar bill that is positioned dangling from a fishhook in front of his nude body”.

The legal argument

Under US federal law, a key factor in distinguishing between the artistic cover and illegal explicit content is whether the depiction of the minor constitutes a “lascivious exhibition” of their intimate parts – in other words, a depiction designed to excite sexual stimulation in the viewer. Also, any determination of lasciviousness must be based on the depiction taken as a whole, with its overall content and context in mind.

Elden is likely to face an uphill struggle in persuading a court that the cover is deliberately focused on the baby’s genitals and that the creators intended to elicit a sexual response – as the first thing most people probably notice is the underwater background.

But, even if he was successful on the child pornography ground, the difficult question would arise of whether fans who own or have downloaded the album with its cover art have copies of a child sex image and so have committed a crime.

The lawsuit also suggests that Elden has suffered a “loss of enjoyment of life” and had his privacy violated. But it could be pointed out that Elden has previously acted in ways that continue to cement his connection with the band. He has re-enacted the cover to honour the album’s past anniversaries and attended events to sign album covers.

Although it’s not unusual for people to reconsider the impact of their experiences from early life, the fact that Elden leaned into the public sphere and seemingly relished his involvement with the album may dilute the strength of his claims.

Couldn’t consent

Elden’s parents were reportedly paid US$250 for the photo shoot. Presumably, this was a standard rate for an unknown model rather than taking into account what the image would be used for.

It is uncertain whether this money was passed down to Elden. He has expressed his bitterness about having never directly profited from his involvement in the Nevermind project. As his parents’ deal cannot now be renegotiated, some might dismiss his current lawsuit as an attempt to get compensation for the commercialisation of his image.

At the core of Elden’s lawsuit is the fact that the band’s team got his parent’s consent before photographing him. Though of course being a baby, Elden did not have any choice. And from this perspective, Elden’s case is a useful reminder for parents to think about the types of images they share online.

A warning to ‘sharents’

A lot has changed since the release of Nevermind in September 1991. With the rise of social media sites and photo-sharing networks, the average parent today is said to share over 1,000 images of their child online before their fifth birthday. Compared to the Nirvana baby album cover, images shared online nowadays are even harder to control.

Indeed, a recent study found that 42% of teenagers in 25 countries are troubled by what their parents post about them on social media.

Although some steps have been taken to protect children’s privacy online – such as the introduction of the Children’s Code which applies to digital services that target minors – the law is not clear as to whether a child’s right to privacy is essentially lost when parents share their images online.

The legal avenues currently available do not guarantee protection against parental “over-sharenting” either, meaning that so-called “generation tagged” may have to live with the longevity of their digital footprint – often attached to them without their consent.

Elden has previously addressed the popularity of the iconic cover and he appears conflicted about it. His ambivalence about the image may be valid. The public’s perception of the album and the visceral feelings attached to its success should not discourage a dispassionate and neutral legal assessment of whether the photograph is unlawful.

But the Nirvana baby lawsuit also serves as a timely reminder to parents to think carefully of the digital shadows they may create for their children. Indeed, parents cannot simply have a “nevermind” attitude to what they share online.

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

The Essex Law School represents the UK at the 2022 IACL General Congress

Photo by Mikel Parera

Dr Anna – Mari Antoniou, Lecturer in Maritime and Commercial Law, has been appointed as the UK’s special national rapporteur at the International Academy of Comparative Law’s (IACL) General Congress, which will take take place in Asunción, Paraguay in 2022.

Dr Antoniou will be representing the United Kingdom for Trade Finance and her report deals with Topic IV of the Congress: ‘The Effectiveness of International Legal Harmonisation through Soft Law – UCP600’. It discusses the UK’s approach to several trade finance issues, including how courts, arbitral tribunals and financial institutions solve recurring problems in documentary credit contracts.

The report’s most significant contribution is an investigation and analysis of two current problems: first, how the COVID-19 pandemic has affected the industry and supply chains; and second, the way the pandemic has forced the issue of digitisation of trade finance.

It discusses the Law Commission’s Electronic Trade Documents project, which is in the consultation phase, and if the proposed draft Bill is adopted by Parliament, electronic transport documents will become a reality.

Dr Antoniou’s report looks at the issue both from a practical perspective and a legal perspective; international trade is worth £1.153 trillion to the UK so an incredibly significant amount is reflected in this report.

Moreover, the legal issues discussed are an excellent example of how the law needs to be updated to reflect the commercial reality. COVID-19 has highlighted other failings in the trade system, but has also emphasised the need for electronic alternatives for an industry deeply rooted in paper-only transactions.

Dr Antoniou’s preliminary report was submitted on 31 August 2021 with final reports due November 2021.

The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law

Photo by Sergio Torres

Dr. Eliana Cusato, who is currently appointed as a Marie Skłodowska-Curie postdoctoral fellow at the Amsterdam Center for International Law, authored a new book titled The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law. Her book was published by Cambridge University Press in September 2021.

The interrelation of ecology and conflict has been the object of extensive study by political scientists and economists. From the contribution of natural resource ‘scarcity’ to violent unrest and possibly armed conflict; to resource ‘abundance’ as an incentive for initiating and prolonging armed struggles; to dysfunctional resource management and environmental degradation as an obstacle to peacebuilding, this literature has exerted a huge influence upon academic discussions and legal/policy developments.

While international law is often invoked as the solution to the socio-environmental challenges faced by conflict-affected countries, its relationship with the ecology of war and peace remains undertheorized. Drawing upon environmental justice perspectives and other theoretical traditions, the book unpacks and problematizes some of the assumptions that underlie the legal field.

Through an analysis of the practice of international courts, the United Nations Security Council, and truth commissions, the book shows how international law silences and even normalizes forms of structural and slow environmental violence (notably, uneven access and distribution of natural resources; less visible forms of violence associated with the environmental aftermath of wars).

This, in turn, jeopardizes the prospects of creating more peaceful societies, while perpetuating deeply rooted inequalities. Ultimately, the book urges us to imagine entirely different legal notions of justice, peace, and security in times of ecological disruption.

By drawing upon extra-legal fields of inquiry (e.g., the literature on environmental security, the political economy of civil wars, the resource curse, and environmental peacebuilding), the book strives to refine extant understandings of how international law conceptualizes and regulates the ‘environment’ before, during, and after armed conflict.

By engaging with some of the international legal order’s most pressing concerns – rising intra-state violence, environmental degradation, resource depletion, and their interaction – the book opens intellectual spaces for rethinking current approaches to the ecological challenges of our hyperconnected world and their adverse impact on the most marginalized peoples. As such, it offers a critical companion work to related titles and, at the same time, pushes the research envelope further and in new directions.

E Cusato, The Ecology of War and Peace: Marginalising Slow and Structural Violence in International Law (CUP 2021)

The book will be of interest to academics and students across different disciplines, primarily international law, but also peace and conflict studies, political theory, and international relations. It will also prove useful as a reference for policymakers and practitioners working at the intersection of environmental issues, human rights, and peace and security within international organisations/tribunals, governmental departments, think thanks, and NGOs.

Dr. Eliana Cusato is currently on academic leave from the Essex Law School.

Grandparent Act or Granny Annex?

Dr. Samantha Davey, Lecturer in Law at the University of Essex, presented a paper titled ‘Grandparent Act or granny “annex”? Waiting for the Government?’ at the Family Law Reform Now conference, hosted by Birmingham Law School in September 2021. The event was organised in collaboration with the Law Commission and conference proposals will be published in a book as part of an initiative to feed into for the Commission’s 14th Programme of Law Reform.

This post offers a brief outline of Dr. Davey’s chapter.

The 21st century has been characterised by systematic social changes to the family unit and legal reforms aimed at regulating and protecting those within it. Many of these shifts in ‘familial landscape’ would have appeared ‘radical’ at the start of the 20th century. Such changes include recognition of and protection from domestic abuse, increasing emphasis on the need to place equal value upon the gender roles of men and women within the context of child welfare, especially in the wake of COVID-19.

Most of this reform has centred around the ‘nuclear’ family, however, rather than the extended family such as grandparents. This is even though grandparents have increasingly had a prominent role in 21st century family life due to longer lifespans, working mothers and as the providers of moral and practical support in single-parent families. Grandparents can thus be viewed either as ‘replacement’ figures for parents or as a valuable form of support for parents and/or children.

There has been conversation, from the academic community, non-governmental organisations and successive governments over the last decade, concerning the role of grandparents in children’s lives. Such discussion includes consideration of whether there is the need for improved protection of the grandchild-grandparent relationship via legislative reform or ‘soft law’ guidance.

Such academic excavation into the array of options has included the consideration of a legal presumption in favour of contact, the removal of a leave requirement and greater ease in obtaining legal funding and financial support (the latter being appropriate where grandparents become carers for children, with or without the explicit support of Children’s Services and/or approval of birth parents).

Dr. Davey’s chapter explores the matter in a more comprehensive manner and considers whether it is time for legal reform to reflect the diversity in family units, specifically the importance of the role of grandparents, via a ‘Grandparent’ Act, substantial reform to the public and private law regimes provided within the Children Act 1989 or an amendment or ‘granny annex’ which reflects greater ‘inclusivity’ of extended family members, namely grandparents.

Dr. Davey proposes that it is time to acknowledge the importance of the role of grandparents (and other kinship carers) and consider the ways in which the grandparent-grandchild relationship, in its myriad of forms, may be best protected via legal reform.

The chapter takes take a ‘holistic’ approach covering both private and public law matters and both procedural and substantive matters, with a focus on the grandparent-grandchild relationship, rather than the rights of grandparents per se.

Greater protection can be provided to grandparents and grandchildren via the development of an ‘inclusive’ legal framework within the Children Act 1989 which modifies the language of ‘decision-making’ (including the welfare checklist) and substantive orders (such as a parental responsibility order).