By Dr. Koldo Casla, Lecturer in Law and the Director of the Human Rights Centre Clinic
In the 2008 case of McCann v UK, which concerned the eviction of a family renting a house from a local authority in England, the European Court of Human Rights established that:
“(T)he loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal”.
Para 50, emphasis added
In a decision on admissibility ten years later, FJM v UK, the Court restricted the principle above to evictions in the public sector. Despite the wording in McCann, the proportionality test would not really apply to any person, but only to tenants in the same situation McCann found himself in, namely, social/public housing tenants.
In my new article in European Human Rights Law Review, I argue that the European Court of Human Rights should reconsider the position expressed in FJM v UK, and establish that evictions with no proportionality test are contrary to the right to home of Article 8 ECHR, also in the private rental sector
In FJM v UK, the European Court went as far as to say that, if tenants were entitled to require national judges to examine the proportionality of an eviction before ordering the possession of their home, ‘the resulting impact on the private rental sector would be wholly unpredictable and potentially very damaging’ (para 43, emphasis added).
This article shows that this need not be the case, and that in fact before reaching such a conclusion the European Court should have examined European comparative practice and national legal orders, as well as other human rights obligations. This article makes the case for a proportionality assessment of all evictions, irrespective of public or private ownership. The scope of the margin of appreciation requires an analysis of the common ground that may exist in European comparative practice and in light of other international human rights obligations accepted in the continent. The social function of homeownership provides the ground to achieve a better balance between the right to private property, the right to private and family life, and the right to housing.
Neither Article 11 ICESCR (on the right to adequate housing) nor Article 8 ECHR (on the right to home as part of private and family life) would give tenants a blank check to stop paying their rent or to break the lease in any other way. And giving judges the power to assess the proportionality of an eviction in the private rental sector would not fix all the housing problems. But it would be an important first step towards a more balanced relationship between landlords and tenants.
I recently have had opportunities to reread the works of Professors Erik Reinert and Peer Vries and to reflect on my previous work on the relationship between institutions, economic development, and China’s development policy for escaping poverty. Professors Reinert and Vries have studied, along with a few other distinguished economists and economic historians, ‘poverty traps’ at national and transnational levels for decades (eg, Serra 1613; Landes 1998; Reinert 2007; Reinert 2009; Vries 2013). Both argued that innovation and structural change are the keys to escaping poverty.
Professors Reinert’s and Vries’s work on economic development has brought the work of Joseph Schumpeter (1883-1950) to light. In this blog post, I will review how the work of Schumpeter, Reinert, and Vries helps us explore three key questions: First, what kind of development does a country need to escape poverty? Second, what kind of institutions can promote development? Third, how to develop? These three questions are crucial to understand China’s escape from poverty.
Professors Reinert’s and Vries’s arguments can be well supported by China’s national development policy. Below are a few highlights of rich empirical evidence. In 1984 the Chinese government proposed a development-oriented poverty reduction policy to replace the previous aid reliance policy (Central Committee of the Communist Party of China and the State Council 1984; for critiques of relying on massive foreign aid to escape poverty, see e.g. Moyo 2009; Hubbard and Duggan 2009; Banerjee and Duflo 2011). On 18 January 1992, Deng Xiaoping (1904-1997, leader of the PRC from 1978 to 1989) made a famous speech in his Southern Tour, emphasising that ‘development is the absolute principle’ (fazhan cai shi ying daoli). Since then, China’s economic development has entered a new stage. In 1994 the Chinese government fully adopted the development-oriented poverty reduction policy as a national policy.
Schumpeter made a fundamental distinction between economic development and economic growth. This distinction helps answer the first question. Mere quantitative growth does not amount to economic development: as Schumpeter (1934/2012: 64) argued, ‘add successively as many mail coaches as you please, you will never get a railway thereby’. GDP growth, for example, does not equal Schumpeterian economic development. Economic development ‘comes from within the economic system and is not merely an adaptation to changes in external data; it occurs discontinuously, rather than smoothly; it brings qualitative changes or “revolutions,” which fundamentally displace old equilibria and create radically new conditions’ (Elliott 2012: xix). A country needs this kind of economic development to escape poverty (Reinert 2009).
Economic development needs Schumpeterian institutions. This answers the above second question. Schumpeterian institutions are concerned with the importance of innovation in generating new knowledge and modes of production, which helps move the economic activities to the next ‘stage’ or ‘paradigm’ (Reinert 2000: 11). Schumpeterian institutions focus on production, and this stands in sharp contrast to the view of institutions adopted by mainstream economics, which focuses on the free market and trade and favours export-led and FDI-driven economic growth (Reinert 2006: 2-3). Further, Schumpeterian institutions differ from the world bank’s conception of ‘good institutions’ including those for ‘building market institutions that promote growth and reduce poverty’ (World Bank 2002: III).
Professor Vries also highlighted the difference between ‘growth-promoting institutions’ (I use development-promoting institution below for consistency with Schumpeterian economic development) and ‘good institutions’ as preconditions for growth as understood by the World Bank. Economic growth existed before the formation of ‘good institutions’. He argued:
Many institutions [,,,] which in mainstream institutional economics are regarded as necessary preconditions for growth actually only emerged when the economy already was growing and a certain wealth already existed: they, in brief, often were effect or symptom rather than cause
(Vries 2013: 377-378; italics original; see also Chang 2002: Chapter 3)
We now need to think about the third question of how a country can develop. It is important to recognise the process of economic development as ‘creative destruction’: ‘[a] process of industrial mutation…that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one’ (Schumpeter 1943/2010: 73, italics original). Combined with the answer to the second question, economic development as a process of ‘creative destruction’ can be elaborated as in Table 1 below.
Further, whether due to ‘improvisation and luck’ (Vries 2013: 378) or through purposeful activities, the ‘development state’ plays a crucial in promoting innovation laying the foundational elements for escaping poverty, that is, diversity, competition, and emulation (Reinert 1999; see also Vries 2013: 376). Professor Reinert argued:
[…] the antagonism between state and market, which has characterised the twentieth century, is a relatively new phenomenon. Since the Renaissance one very important task of the state has been to create well-functioning markets by providing a legal framework, standards, credit, physical infrastructure and – if necessary – to function temporarily as an entrepreneur of last resort. Early economists were acutely aware that national markets did not occur spontaneously, and they used “modern” ideas like synergies, increasing returns, and innovation theory when arguing for the right kind of government policy
(Reinert 1999: 268)
The importance of the development state and the mutual relationship between state and market are reflected in China’s development policy. For example, Wen Jiabao (the sixth Premier of the State Council of the PRC 2003-2013) made a speech at the World Bank Global Poverty Alleviation Conference on 26 May 2004, emphasising:
[China should] continue “development-oriented poverty deduction” and enhance the capacity of the poor to escape poverty and become rich […] [We should] adhere to [the policy] that the state plays the leading role, make full use of market mechanisms, and improve the level of self-accumulation and self-development in poor areas by improving infrastructure construction, adjusting economic structure, and developing local resources.
Since how to develop is the central issue or problem of China’s escape from poverty in China’s national policy, it has become a key contemporary research topic. A quick search via the National Library of China using keywords such as ‘poverty traps in China’ and ‘escaping poverty traps’ gives at least hundreds of research outputs. Every scholar who studies poverty alleviation in China or China’s escape from poverty would like to give their own answers. I think whether China will continue its past success to develop depends on two key issues: first, whether it continues expanding the ‘market’ to allow exploring, testing and experimenting with different ideas and policies; second, whether the state will continue to promote diversity, competition, and emulation. This will be the subject of my next blog posts.
This article first appeared on Developing Economics and is reproduced on the ELR Blog with permission and thanks. You can read the original post here.The full list of references can be found below.
Banerjee, Abhijit and Duflo, Esther (2011) Poor Economics: A Radical Rethinking of the Way to Fight Global Poverty. Public Affairs.
Central Committee of the Communist Party of China and the State Council (1984) ‘Notice on Helping Impoverished Areas As Soon As Possible (Guanyu bangzhu pinkun diqu jinkuai gaibian mianmao de tongzhi), the Gazette of the State Council of the People’s Republic of China, 1984,No. 25.
Chang, Ha-Joon (2002) Kicking Away the Ladder: Development Strategy in Historical Perspective. Anthem Press.
Elliott, John E. (2012) ‘Introduction’ to Joseph Schumpeter, The Theory of Economic Development: An Inquiry into Profits, Capital, Credit, Interest, and the Business Cycle, 16th edn. Transaction Publishers, vii-lix.
Hubbard, R. Glenn and Duggan, William (2009) The Aid Trap: Hard Truths About Ending Poverty. Columbia Business School Publishing.
Landes, S. David (1998) The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor. W. W. Norton & Company.
Moyo, Dambisa (2009) Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa. Farrar, Straus & Giroux.
Reinert, Erik S. (1999) ‘The Role of the State in Economic Growth’, 26 Journal of Economic Studies 4/5: 268-326.
Reinert, Erik S. (2000) ‘Karl Bücher and the Geographical Dimensions of Techno-Economic Change: Production-Based Economic Theory and the Stages of Economic Development’ in Jürgen Backhaus (ed), Karl Bücher: Theory-History-Anthropology-Non Market Economies. Metropolis-Verlag, 177–222.
Reinert, Erik. S. (2006) ‘Institutionalism Ancient, Old and New: A Historical Perspective on Institutions and Uneven Development’, UNU-WIDER (World Institute for Development Economics Research), Research Paper No. 2006/77.
Reinert, Erik S. (2007) How Rich Countries Got Rich…and Why Poor Countries Stay Poor. Carroll & Graf Publishers.
Reinert, Erik S. (2009) ‘The Terrible Simplifiers: Common Origins of Financial Crises and Persistent Poverty in Economic Theory and the New “1848 Movement”, DESA Working Paper No. 88.
This is the second in a set of blog posts in which I discuss the lessons I learned in writing an article that uses a methodology from Critical Race Theory (CRT)—Bennett Capers’ “Reading Black” method—to examine modern investment law scholarship. The article is now out in the Journal of World Investment & Trade (JWIT). I reflected on what led me to use CRT to critique international legal scholarship in part 1 and will now discuss my experiences using CRT as a relatively privileged white woman, and the lessons I am taking forward as to what we as an academic community owe racialised CRT scholars.
The Process of ‘Reading Black’
Admittedly, using Bennett Capers’ methodology centres me as the reader. As I acknowledge in the article, Reading Black others’ work is form of exercising power. I, as the reader, place the narratives in the broader context I deem relevant; and I assert, using linguistics and careful textual readings, the (sometimes unintended) implicit racialised narratives that underpin others’ work. If done well (and I’m not claiming here that I have done it well), the Reading Black method advances our scholarly understanding of how linguistics and social understandings embed in legal discourse, allowing the law and legal scholarship to replicate racialised hierarchies.
Unfortunately, my first submitted draft did not do Bennett Capers justice.
The Unpleasant Middle of my Story
By January 2021, I had selected a methodology and a few pieces to Read Black. I had also begun the writing process, outlining my main arguments on paper. In a panic, I speed-read Ntina Tzouvala’s excellent Capitalism as Civilization when I discovered she also uses Capers’ ‘Reading Black’ methodology.
Then, I received numerous, explicit death threats from a White supremacist who declared me a traitor to my race.
People tend to think a death threat is a death threat. Unfortunately, I have long learned to separate ‘death threats’ from Death Threats. I’ve received the former frequently enough, and the latter less so. The ones in January 2021 were Death Threats.
I had to report the threats to campus security and police forces in two countries.
The US police brushed the threats off despite their frequency, graphic nature, and the fact that these threats happened in the same month that White nationalistsattacked the US Capitol building. They told me it was probably an upset student (it wasn’t) and I shouldn’t worry (the Essex police disagreed). I found myself learning how to investigate these kinds of cases and prodding and teaching the US police force how to do their job. This drained my energy.
Because I had received Death Threats before, as a White woman I had assumed that the experience of Death Threats was relatively the same.
I was wrong.
The earlier Threats had a specific trigger so I could plan how to protect myself in advance. To the extent I could control the reality around me, I did. This time, I couldn’t.
There was no specific incident that brought this on. It was my identity – being a White woman who had spoken publicly about racism – that was the trigger. I didn’t know how to respond to that.
Women learn at an early age how to navigate unsafe spaces. The rules are culturally specific, but universally women are forced to consider how we protect ourselves from the ever-present threat of being a woman in society. In the US, we learn to stay away from men whose demeanour raises the hair on our neck. To travel in groups to the bar. To never leave our friends alone. To kindly laugh off and extricate ourselves from unwanted advances. To text our location if we’re going to have dinner at a guy’s house for the first time. We take self-defence classes and don’t drink from glasses we haven’t controlled at all times. We have to do this because society does not respond to our concerns and will generally blame us for being victims of violence.
This time, the hair on my neck was always up. It became difficult to navigate my space and time around (most) White men. I could only relax, truly relax, with a few friends and in private spaces.
I knew I needed help and sought it. I pushed my deadline as far as I could, but I was still in the middle of therapy when I hit the make-or-break submission date. I submitted a draft of something, but it is not the version you will read today.
When I look back at that first draft, I can see the trauma written into it: vacillating somewhat erratically between saying too much, almost saying something, and avoiding saying anything. The draft was sometimes on point but was equally sweeping in claims, unfocused, and unclear. At times, I shied away from analysis, fearful of what could trigger new Threats.
As I wrote, I worried that the next Threat wouldn’t come from a ‘random’ White supremacist but from someone within my field.
I recognise that fear is irrational. Hostile academics wouldn’t explicitly threaten to dismember me; they’d just silently undermine my career by marginalising my scholarship now and in the future (neither the importance of blind peer review nor the politics of citation should be lost here).
But, that isn’t as comforting as you might think. If you’re going to die for being outspoken, you at least want what you say to matter. What if backlash to this article meant my words wouldn’t matter anymore?
In truth, I could only finish even the roughest draft of that article because I had communities around me, in my department, in Business and Human Rights, and in the IEL Collective. But, I wonder how many critical ideas have been self-censored because someone didn’t have that kind of community.
A Privileged Experience
I should be clear as to why I am telling you this: as I was responding to the Threats – and as I write this now – I recognize how privileged I am. It remains rare for me to receive Threats, and rarer still to receive them on the basis of my identity as opposed to something I actively choose to do. Moreover, these threats were somewhat temporarily defined. There was a point at which the threat dissipated.
Even in the worst moments, I knew that would be true.
White supremacists are not routinely targeting me, nor can they tell when I walk down the street that I’m someone they hate. My ‘normal’ existence occurs in the relative security of a woman who has already learned, as all women do implicitly and explicitly, how to navigate unsafe spaces and a world hostile to her independence.
In contrast, I have friends and colleagues who regularly face Threats for their work. Those Threats exist on top of and in addition to the daily assault on their identity and safety that comes from both systemic and individualised racism. That is the real ‘cancel culture.’
I am telling you about my experience because I do not think (White) academia fully appreciates what it means to write CRT generally and cannot conceive of what it means to write CRT as a racialised scholar specifically. CRT theorists, particularly those from racialised backgrounds, are writing significant and challenging contributions to our existing understanding of the law. They are doing this while operating within a space that history, modern news, and likely their own lived experiences tell them they cannot trust or fully relax into. They navigate a society, which includes the academy, hostile to their existence and scholarship. As CRT has become the Scare du Jour, demonized by people who can’t describe it and mischaracterized by those who should know better, the identities of CRT’s founding lights and those who write in this space have become well-known. Which means their lives are at greater risk. Still, they write. And what they write is important, adding to our knowledge and understanding of the law even when we might disagree with their conclusions.
The result of this reality is that we, at least in law, ask a lot more of racialised scholars who write CRT than we do of other scholars. We ask them to preserve, transfer, and add to knowledge whilst enduring threats of violence that we have thus far failed to significantly address. When I look at my first draft, I don’t feel ashamed of how trauma impacted it—trauma by nature is supposed to impact us—but I do realise how much more fragile my capacity for scholarly contribution is compared to those who write CRT regularly, particularly those who do so from a racialised background.
Which returns us to the question that prompted this post:
What do we owe CRT and its Theorists?
My three-prong answer to this question is rather simple and perhaps incomplete: respect, engagement, and security.
Respect: Racialised scholars have long faced an academy that is unwilling to listen to them, to believe their experiences or accept their contributions. That has not changed (in or outside law), and is enhanced by an unwillingness to address CRT contributions within mainstream legal scholarship. That unwillingness to listen is a sign of disrespect for racialised colleagues. The only counter to that is greater respect, which requires introspection, education, and explicit allyship on both a personal and structural level. Once respect is gained, it should lead to:
Engagement. CRT (and its cousin, Third World Approaches to International Law) remain marginalised within legal scholarship. Too often, they are addressed in ‘black letter’ and ‘mainstream’ scholarship only when necessary and then only in a footnote; just as frequently, they are excluded from consideration altogether. Given what is demanded of CRT theorists, this is both unwarranted and troubling. It may, however, reflect our own insecurities as White academics. CRT intentionally disrupts the mainstream claim to an ‘unemotional’ or ‘objective’ law and in doing so undermines our belief in our own academic objectivity. One way to diminish the personal challenge CRT makes to each of us is to suggest this is a niche area of critique, one relevant only where ‘race issues’ are prevalent. In the JWIT article, I analyse how this form of ‘othering’ manifests in some modern investment law scholarship and examine how this ‘othering’ undermines the strength and rigour of the marginalising scholars’ research. We need stronger engagement with CRT (and TWAIL) even where we are not contributing to CRT ourselves. It is not enough to acknowledge that CRT theorists exist or have ideas on a topic if we do not engage with those ideas. These performative and perfunctory notes can be just as othering as ignoring the contributions altogether. Instead, we must recognise that CRT has told us something about the law, reflect on that and engage with it. Doing so is not only the minimum we owe our colleagues but it strengthens our individual scholarship and our field.
Finally, we owe them Security. How many universities have a process for responding to death threats? How many managers know how to trigger that response? Following the Threats, I asked that my office address be removed from my web profile. I received the run-around as no one knew how to do this, and no one knew whom to ask to get this done. After a few weeks, my exasperated email said something like: “I would just like the University to not provide every White supremacist in the UK with a roadmap for killing me.” It was perhaps a tad dramatic. It was also effective. It turns out that there is a process for this at my university, but no one I was speaking to knew how to trigger it. Universities need policies and processes in place to protect CRT theorists and we need to train academics on how to use these protections when they are needed.
We also need to provide security within our fields of research. Fears of being marginalised for their contributions can dissuade scholars from racialised backgrounds from publishing the kinds of insights and challenges we need to hear to strengthen the field of scholarship. It can be an impediment to the pursuit of knowledge.
We need to create and enlarge the space available for racialised scholars and CRT theorists both to intervene when and how they choose. In the aftermath of the Christchurch mosque attack, White New Zealanders flooded social media with commitments to Muslim residents and citizens too afraid to travel alone: “I’ll walk with you.” Not “I’ll agree with you.” Not even “I’ll like you.” But “I’ll walk with you.” I will make sure you are safe. That explicit guarantee of security and community matters. It is the only reason I could finish this article. Every scholar deserves the same.
We need to make clear that CRT is a legitimate and respected means of engaging with the law even when we disagree with the critique(s) it prompts. When politicians try to demonise CRT theorists, it should not be incumbent upon CRT theorists alone to defend their work or the legitimacy of their scholarship. That responsibility sits across the spectrum of legal academics. We should be hearing mainstream lawyers rise to the defence of CRT.
Unfortunately, that is rare.
We need to do better moving forward so that our mainstream becomes active interveners rather than passive bystanders, anti-racist rather than a racist structure.
A concluding note
I will not pretend, as academics can do, that either my question or the answers I offer here are particularly original. They build on and draw from decades of work done in TWAIL and CRT. But, it took 600 years of intentional efforts by writers, scholars, and politicians from a variety of places to construct the racialised beliefs we have now. Deconstructing that will require each of us to reiterate our lessons learned, and the actions we need to take to be antiracists. This post, and the article in JWIT, are merely intended to add to that practice.
My latest publication is now out in the Journal of World Investment & Trade. In it, I use a methodology from Critical Race Theory (CRT)—Bennett Capers’ “Reading Black” method—to examine how modern investment law scholarship continues to embed and evidence historical narratives around race.
CRT is a set of methodological contributions that allow us to interrogate how the law protects, fosters, and replicates racist hierarchies. It is not, as the media would suggest, a singular narrative about race and racism. Yet it is premised on the recognition that race is a social construct, often beyond our cognition. Its founding lights, including Derrick Bell, Kimberlé Crenshaw, and Richard Delgado have pointed to how the law has been used to produce, embed, and replicate racialised narratives and beliefs so as to allow for the protection of power and privileges for White people in the US. Third World Approaches to International Law (TWAIL) has done similar work for international law.
This article brings together Capers’ methodology with the scholarship from TWAIL and other international law scholars to analyse how historically constructed narratives around race remain a part of international investment law scholarship now. I argue that by failing to guard against the impacts of socialised racism on our scholarship, we undermine the integrity, rigour, and significance of that scholarship and of our field.
I also consider how we can do better, individually and collectively, by intentionally centring critical scholars and communities of scholars in our inquiries, Reading Black our own and others’ writing, and better integrating issues of race into journals and peer-review processes.
In this two-part autoethnographic blog post (part confessional, part reflective), I explain what led me to use CRT to critique international legal scholarship (part 1), what I learned in using it as a relatively privileged white woman, and what we as an academic community owe CRT scholars, particularly those from racialised backgrounds (part 2).
It is necessary to know up front that I am a White, American woman who considers herself attuned to issues of race.
Asserting my identity as ‘White’ is itself problematic. There is no biological basis for race. Instead, Whiteness is a fluid social construct that is the result of the European need to justify colonialism and slavery.
Moving into direct control of Africa—as opposed to procuring gold and slaves through trade with North Africans—required a justification that would appease their citizens, the Church, and other European states. Writers like Gomes Eanes de Zurara (p.24), lawyers like Grotius, philosophers like Immanuel Kant, and numerous politicians and scientists, wrote and rewrote those justifications. The result is that we now have approximately 600 years of socialised belief in race and in racist narratives. At each step, the intentional socialisation of racialised hierarchies has left an implant on our language and framing choices.
In many ways, my childhood was one long education in this history and its modern impacts.
I grew up in a politically conscious family in a racially and socioeconomically diverse community (more about that here and here). In my better childhood moments, I could identify how race impacted social, economic, and political opportunity and how I benefitted from those inequalities. I could identify my own Whiteness without understanding it or having a term for it.
In my worst moments, I accepted the privileges Whiteness offered without thought and often with the belief that I deserved them.
It was not that I ever, by values, believed in racism or White supremacy. Had you asked me then, I would have pledged my allegiance to equality and diversity and pointed to my Black friends. Yet, I lived an existence that was designed to protect my Whiteness and by failing to challenge the structures that did that, I often and without intention reproduced racist beliefs and hierarchies.
When someone said something racist, I often assumed someone else (i.e., someone from a racialised background) would call them out. That was, until a friend in high school explained the exhaustion and resignation she felt every time she was left to speak up on her own. It was through this conversation that I learned the difference between being not-racist and being anti-racist: given our global history, it is not enough to, by values, be not-racist. We must be actively antiracist by action, meaning we must work to deconstruct the systems, structures, and narratives that were historically constructed for racist purposes.
At the time, I did not use that language or know that vocabulary. I merely recognised and accepted responsibility for calling out and ‘calling in’ racist statements (sometimes gently, sometimes not), and for having the discussions with White people that are forms of unseen labour for people from racialised backgrounds (no, you can’t use the N-word even though a rapper or comedian does; no, colonialism did not bring democracy to the colonised).
Given how very White my undergraduate (and law school) was, I had a lot of practice in this.
It was through these conversations, and more so through hearing White colleagues defend their privileges, that I recognised my own Whiteness and was forced to confront the worst versions of my childhood self: accepting the world as I enjoyed it as a neutral reality and ascribing blame to those who did not enjoy the same privileges.
I became comfortable having conversations about race. Until last year, however, I had never written academically on the issue.
That choice reflects a series of complicated questions I had about my place in this scholarship, starting with:
Can I Write CRT?
I have to credit Verna Williams and Emily Hough for starting me on a path to using CRT. I never took their Race and the Law class, but I started reading CRT because I was overly competitive with a small number of close friends who were taking it and wanted to sound informed when we spoke (as I said, the post is part confessional).
CRT adds to our knowledge and methods the means for interrogating, identifying, and explaining how the law and our social institutions have been and are designed to protect Whiteness from all others.
Through CRT, I was able to better understand experiences with Whiteness that I had from my earliest childhood memories through my life in Japan, Denmark, and the U.K. I consumed CRT because it answered the questions that my subconscious had clocked but I had not been able to articulate, and it gave me a vocabulary for expressing things I did understand but had difficulty explaining to others.
I never wrote on race or used CRT explicitly in my own research, however, because I never thought I had anything of interest to say. I also worried about the space I would take up if I did try to say something meaningful.
I still worry about that. And I’m glad I do.
When I think about what it means to be White talking about race, I often think of the fish in the aquarium toward the end of Finding Nemo. For those hazy on the Disney classic, Nemo is a fish taken from the ocean and brought to an aquarium where he meets other fish who have only ever lived in the aquarium. Nemo understands the constraints imposed by the aquarium and tries to explain to the other fish what the ocean is like. The aquarium fish exist in a system constructed for the purpose of protecting them, keeping them fed, but also keeping them confined and isolated from all other spaces and objects, particularly the ocean. The fish know they exist within the aquarium, they can identify the contours of the aquarium, and can see what lies immediately beyond it. But, they never know what it means to be outside the protected system, to look at it, to understand it, to escape it, or (in any knowing way) to be oppressed by it.
They could never deconstruct or explain the aquarium; at best they can offer a limited understanding of their experience and reality within it.
That’s how I feel when writing about race.
CRT has given me terminology, language, and methodologies but I was never sure if I had anything to offer it. The structures and systems invented for my ‘protection’ keep me on the inside, meaning I can never examine them from the outside and therefore can never adequately or completely critique them.
Simultaneously, not participating in the scholarly discussion unduly transfers the burden of leadership onto those from racialised backgrounds. This has two significant consequences. It reproduces an existing narrative that ‘race issues’ fall into a niche field of study for racialised scholars. This is a form of othering that centres the White experience as ‘neutral,’ an area of research that all are interested in, while the impact of the neutral reality on those that are ‘not White’ becomes irrelevant to those who are White. I have witnessed how this is used to diminish the contributions of racialised scholars, and in the JWIT article I recognise moments where this form of othering occurs in modern scholarship.
The second consequence of White scholars refusing to engage with issues of racism or CRT is that individual racialised scholars are given a mandate they may or may not want to take up.
In the two fields where I spend most of my time (Business and Human Rights, and International Investment Law), there are an increasing number of racialised scholars, but they remain disproportionately underrepresented, particularly in mainstream leadership positions. It is not unusual in either field to attend an all-White panel (or ‘Wanel,’ if you will). If we leave leadership on ‘race issues’ to the few racialised scholars, they face an unfair choice: either speak about race and nothing else or speak about other things and leave unaddressed issues associated with race and racism.
Neither of those realities are acceptable.
Continuing a Lifelong Conversation
I began the current article almost two years ago when I tweeted about a book review I found troubling for the way in which it diminished the criticisms of those writing from the ‘Global South.’ To their credit, JWIT’s Editors-in-Chief, Hélène Ruiz Fabri and Stephan Schill invited me to develop my concerns through an article. I had wanted to protect space for an early career researcher from a racialised background to co-author with me, but I couldn’t find someone willing to do this. So, I decided to do what I have long done: have a conversation about race with other White people.
The methodology places legal developments in their broader context to examine how cases developed, socially and linguistically, to protect and preserve a White identity that sits apart from and is superior to the identity of others.
In the JWIT article, I Read Black four pieces from modern investment law scholarship to explain how they unintentionally embed and replicate historical, racialised narratives. In developing the article, I wanted to focus on current scholarly contributions. There is a great deal to discuss on the racialised development of investment law, but it is easy to dismiss the impact of the historical developments if we do not address how they continue to manifest in our work now.
It would be easy, and wrong, to conclude that the article targets the authors or practices of those four pieces. I do not believe the authors of the four pieces are, by value or intention, racist. Yet, as I demonstrate in the article, they produced language and framings that reproduced racialised hierarchies. This was likely because they did not, and were not required to, reflect on their assumptions and develop an intentional, antiracist praxis to their work.
This is unsurprising. Success in academia often requires mimicking the ‘big names’ of a field. In investment law, those names are often White (culturally) Europeans. Replicating their work can mean ignoring significant criticisms and scholarly contributions from racialised scholars, and in doing so replicating the hierarchies the ‘big names’ constructed, accepted or reproduced themselves. That’s a problem if we ever want to do better with and by our scholarship than they did.
The article is aimed at reminding us to be as rigorous and intentional in our language and framing choices around in- and out-groups as we are in other areas of our research. In doing so, we can produce better scholarship while contributing to the normative good of combatting racism.
Using Capers’ methodology to raise these issues felt like a continuation of the conversations I learned to have as a teenager while moving those conversations into the professional circles I occupy as an adult. As with all the other conversations I’ve had on racism, I expect some will dislike the article and disagree with my conclusions. I’m comfortable with that. But, in the next part of this blog post, I explain how hate and fear almost derailed the work and how that experience can remind us of what we owe CRT theorists.
The amount of the award is £250,000 for a 12-month project, which began in June 2022. The project team involves Dr. Jovanovic as a Principal Investigator (PI), Dr. Patrick Burland of the International Organization for Migration (IOM) UK as a Co-Investigator (Co-I), and a group of researchers from the Hibiscus Initiatives, a non-governmental organisation that works with prisoners.
The project investigates what happens to the survivors of modern slavery who end up in prisons in the United Kingdom and the extent to which the existing legislation and policies provide an opportunity for them to be identified and access the necessary support and assistance.
The project has two central objectives:
First, to provide a critical appraisal of the existing law and policy applicable to survivors of modern slavery in prisons in the UK and consider their compatibility with binding international obligations in this field. In doing so, we will identify the gaps and blind spots of the relevant laws and policies and articulate actions/reforms needed to bring domestic law and policy in line with the UK’s international obligations.
Second, to evaluate current institutional practices, which are meant to give effect to the relevant law and policy. In other words, even if the research finds that the applicable laws and policies are adequate and in line with international law, do practices follow their letter and spirit? We will seek to identify the reasons for discrepancies between the rules and their application and propose actions needed to bring practices in line with the rules.
The research is conducted through both the desktop analysis of the relevant sources using a doctrinal method as well as by interviewing the survivors of modern slavery who have been in prison in the UK and other stakeholders, such as the government officials, civil society actors, lawyers, and members of the prison administration.
This project is part of the portfolio of five projects examining the impact of wider laws and policies on modern slavery funded by the MSPEC. Further details about Marija’s and the other four projects included in the portfolio will be provided in a detailed announcement by the Modern Slavery PEC in due course.
The Modern Slavery PEC is an AHRC-funded, Strategic Priorities Fund Centre, created by the investment of public funding to enhance understanding of modern slavery and transform the effectiveness of laws and policies designed to address it. The Centre funds research and works with funded research to enhance the evidence it creates and maximise its impact potential.
Prof. Ferstman and Fabian Ilg recently conducted an interview with JRR about the research paper. Their responses are reproduced on the ELR Blog below with permission and thanks.
Carla, As the author of the report, could you summarize the key findings and its recommendations?
The purpose of the report is to explain the key challenges to investigate allegations of sexual exploitation and abuse involving child victims. It is not a “how to” guide, but there are several clear messages to the report.
First, allegations of SEA involving child victims are likely to happen in settings that present unequal power dynamics. This will include fragile settings whether impacted by conflict, insecurity, weak governance, poverty, disease, or natural disasters. Because of this likelihood, all humanitarian agencies and organizations working in these environments need to actively prepare for such eventualities. Hoping that it won’t happen is simply not a good enough strategy. Active preparation includes having clear child-friendly policies in place, being proactive about uncovering child SEA, having specialist staff on hand, and taking effective steps to mitigate the risk of SEA involving child victims.
Second, agencies and organizations should ensure that their policies and practices maximize the rights of child victims. Ensuring the best interests of the child in relation to SEA investigations is not only about protecting children from psychological and other forms of harm during investigations; it also requires that children’s rights to information, to participate in investigation processes, to justice and to reparations are all maximized to the greatest possible extent. How child victims are consulted during SEA investigations should reflect their evolving capacities and their maturity. Third, agencies and organizations should recognize and address the conflicts of interest they often have when conducting SEA investigations. This includes ensuring children have access to independent advice and support about how best their interests, needs and rights can be respected during a SEA investigation and subsequently.
Being the first report of its kind, dedicated to exploring the issue of SEA investigations through a child-centered perspective, what do you hope it will achieve?
It is hoped that the report will raise awareness about a really complex issue that arises all too often in humanitarian settings.
Hopefully, it will spur agencies and organizations to action, so that the needs and rights of child victims can be met and so that accountability for this horrific crime can prevail.
Fabian, why do you feel that this project and paper are important and needed?
First, I am very proud and glad to have had the opportunity to participate in this very important project and to bring in some of my own experience from the field while investigating different SEA cases involving children (CSEA) over many years, both as a JRR expert and as a professional in law enforcement.
This report is one of the most complete documents created about this topic and fills a large void. Over the past years, the focus to improve protection of CSEA victims has increased a lot. As a result, organizations working in the humanitarian sector have needed guidance and specific standards to prevent CSEA, as many CSEA cases still occur regularly all over the world. Now more than ever, it is very important to do the utmost to protect children, the most vulnerable human beings, to treat them with respect during this process, and to start helping survivors to make their future life as bearable as possible. This report provides the needed guidance in a comprehensive manner, and is therefore a perfect tool for all who may be involved with CSEA during their work.
As someone who has conducted SEA investigations, how do you have to adapt your approach to investigate SEA against children?
SEA investigations are very complex on different levels. CSEA investigations are an even greater challenge. In many cases, material evidence is missing and the victims’ voice is the only proof. Relationships of dependency and abuse of power are some of the usual modus operandi used by perpetrators, to make victims appear to have wanted the sexual contact. In court, judges follow the strong voice of the lawyers of the perpetrators and the statements of adults often have a much higher weight than that of children. Children are very vulnerable and can often not distinguish between right and wrong, and as such their judgement is viewed as limited. Furthermore, the chances of their re-victimization at a later point in time are sadly quite high.
This makes CSEA very different from SEA. We, as CSEA investigators, have a grave responsibility to protect these young victims, and must do so by putting them in the centre of the investigation. This starts with ensuring all their rights are protected during the investigation process. Among other things, to be interviewed is a very traumatic experience for a child. The victim-centred approach is in many ways the most critical step to support a child and provides them with the chance of having a bearable life in the future.
Investigations into alleged violations of international humanitarian law and international human rights law in armed conflict are crucial to the implementation of these bodies of law.
There are, however, numerous legal and practical challenges that arise when considering a State’s obligations under international law with regard to such investigations.
These include establishing the bases and scope of the duty to investigate under both bodies of law, and determining the way in which these investigations must be carried out.
Furthermore, addressing the framework for investigations in armed conflict necessarily requires an examination of the interplay of international humanitarian law and international human rights law.
In her new chapter in the latest edition of the Research Handbook on Human Rights and Humanitarian Law, Dr. Claire Simmons, a researcher at the Essex Armed Conflict and Crisis Hub (under Essex’s Human Rights Centre), focuses on the concept of effectiveness of investigations under international law.
Dr. Simmons addresses, in particular, the legal and practical challenges surrounding the conduct of investigations in armed conflict, taking into account the complementary way in which both bodies of law interact.
The very best of Essex research was recognised at our Excellence in Research and Impact Awards 2022 ceremony at Colchester Campus on Wednesday 25 May 2022. The annual awards highlighted how the work conducted at Essex is having a positive impact on people’s lives across the globe.
This year, a total of 21 awards were presented to research champions, impactful projects, and technical teams over the course of a three-hour event. The School of Law attracted four awards in four different categories:
Tara Van Ho was a runner-up for Best International Research Impact for her work that helped Twitter devise new content policies for tackling online misinformation about the ongoing Ukraine-Russia conflict and other humanitarian crises.
“These awards are another fantastic indicator of how Law School research is having an enormously important impact at so many levels of society beyond the academic world. This was recognised by the recent Research Excellence Framework which rated over 70% of the Law School impact work from 2014-2021 as being world-leading. With these awards, we see that there has been no let up. The Law School continues to strive to be world-class at using its research to make a real difference to law, policy and people.”