The research combined a doctrinal analysis of the relevant law, policy, and secondary sources with interviews with a range of stakeholders including adult survivors of modern slavery who had been in prison in the UK, NGOs, prison administration and staff in all three devolved jurisdictions, solicitors, police officers, and other experts. A survey was also conducted with Modern Slavery Single Points of Contact (SPOCs) recently appointed in all prisons in England and Wales.
Dr Jovanovic and the IOM UK hosted a high-profile launch event on 28 November 2023 with more than 110 people in attendance, both online and in person. The speakers were the Chief of Mission of the IOM in the UK, the Executive Secretary of the Council of Europe’s expert group on human trafficking (GRETA), the Policy Lead on Modern Slavery at His Majesty’s Prison and Probation Service (HMPPS), the Director of Policy Impact at Modern Slavery PEC, and Head of Policy and Public Affairs at Hibiscus Initiatives.
From left to right: Ann Snowden (HMPPS), Petya Nestorova (GRETA), Christa Rottensteiner (IOM UK), Marija Jovanovic (University of Essex), Olivia Hesketh (Modern Slavery PEC).From left to right: Ann Snowden (HMPPS), Petya Nestorova (GRETA), Patrick Burland (IOM UK)
The report reveals the reality of how countries treat modern slavery survivors, which is more complicated than commonly thought. Dr Jovanovic pointed out that contrary to the clear and express international obligations of states to identify and protect the survivors of modern slavery and prosecute and punish the perpetrators, “it is not out of the question that there might be more survivors than perpetrators in UK prisons”. Instead of being protected, many survivors are sent to prisons sometimes for the crimes they were forced to commit by their traffickers. Jakub Sobik from the Modern Slavery PEC said: “Prisons represent a missing piece in the UK’s response to modern slavery – this groundbreaking research is the first one to fill this gap, even though there’s clearly more to uncover.”
Audience at the launch event
The research identified key challenges in the UK’s complying with its international obligations to identify and protect every survivor of modern slavery, including those in prisons. They include: the lack of systematic information-sharing between prisons and the designated Home Office Competent Authorities in charge of victim identification; insufficient training of prison staff about the issue of modern slavery; prison staff not being authorised to refer potential victims to the National Referral Mechanism designed to facilitate victim identification and support; and barriers to disclosure in prison.
The report also includes proposals for a number of legal, policy, and practical measures required to bring current practices in line with requirements arising out of international and domestic law.
Audience at the launch event
For more details of the research and report, you can find the press release here and the full report here.
Assisted death remains a complex and polarising issue. On one hand, proponents highlight the need to preserve dignity in dying calling for a more compassionate response to the law. Opponents object, emphasising concerns about diminishing the sanctity of human life, the risks of introducing a slippery slope, and highlighting negative impacts on the doctor-patient relationship. The debate around assisted death is staggering which begs the question: what more could be said of the problem of assisted death that has not been said 100 times over?
For Dr Rees Johnson, there is an important underlying context that is essential to future reform attempts. Dr. Johnson is a Lecturer at the Essex Law School. His research interests include end-of-life matters and the racial/cultural contexts of end-of-life care. He teaches Medical Law and Property Law. Rees recently concluded his PhD: Situating Medical Power within the Modern (Legal) History of Assisted Death: 1936 – Present.
The Research Visibility Team interviewed Dr. Rees Johnson to find out more about his thesis and research.
In layman’s terms, what is the problem your research aims to fix and how would you describe your contribution to your subject area?
My PhD was borne out of frustration. The frustration I had was with the state of the academic debate and how I felt the way the problem of assisted death was being debated. After conducting an extensive literature review, I felt that the conventional framing of assisted death as a legal and/or ethical problem created a cyclical effect. Ethical and legal discourses have been deployed to advocate reform; and yet the same ethical and legal discourses have been inverted to argue the opposite. Rinse and repeat for nearly 100 years.
Considering this circular argumentation, how could the law progress when it is hindered by uncertainty and indeterminacy? What is the function of this uncertainty and indeterminacy? Who stands to benefit from this uncertainty and indeterminacy? What strategies have been deployed to preserve this uncertainty and indeterminacy? These were some of the questions I felt needed answering.
By adopting a critical historical analysis inspired by Michel Foucault, I examined the legal history of assisted death to determine whether something else was going on beneath the conventional framing.
I came to realise that the legal developments of assisted death have been constrained by an underlying tension: the tension between preserving medical power and authority on the one hand; and subverting it on the other.
My PhD therefore mapped out the ways this tension has played out. Using a historical frame, it charted the interest-driven strategies, interpretive struggles, and discursive practices of institutional actors (judges, lawyers, academics, medical professionals etc.) as well as the impact of these on the legal development of assisted death.
If your thesis was a front-page story in a newspaper, what would be the headline?
Facing the Challenge of Medical Power: A Call for Assisted Dying Law Reform
What inspired you to delve into the intersection of law, ethics, and power dynamics within the context of assisted death?
My background is in environmental law, having done Law with Environmental Science LLB at Northumbria University in 2014 and an LLM in Sustainable Development and Environmental Regulation at Newcastle University in 2016. I wrote my LLM dissertation on the legal rights of nature and the need for a pragmatic middle-ground.
During the LLM, I was introduced to the work of Michel Foucault when I studied ‘Critical Geopolitics’ in the Politics Department at Newcastle University, following a three-month trip to Israel in 2015. This introduction changed my worldview about pretty much everything – especially the law, and the way law supports and fosters power relations to the detriment of those at the margins.
After the LLM, I received a £30,000 funding package from Newcastle University to develop a SmartBot that could write a will for the purpose of estate planning. It was here that I became interested in death and dying. This seems like an unusual trajectory, but the PhD is simply a meeting of these two worlds.
Your thesis employs a critical historiographical method inspired by Michel Foucault. What key insights does this approach offer that traditional legal and ethical frameworks might overlook?
I think adopting a method of legal analysis that moves away from concentrating on formal modes or structures of power and authority is important. Foucault teaches us to consider the underlying, subtle ways in which power is exercised that are not immediately obvious, such as through discursive practices like medicalisation and expertise. In parliamentary debates or case law on assisted dying, it is difficult to unsee how politicians and judges help to legitimise and uphold these techniques.
The methodological approach was also helpful in that it allowed for the explication of power relations inherent in the development of legal knowledge and how this unfolds over time. Legal knowledge is not neutral but historically contingent and situationally negotiated through a constellation of power relations. This helps us to adopt a more critical approach to the development of legal knowledge and legal ideas.
Your thesis suggests the need to draw a line as a matter of policy to avoid conferring too much power and authority to the medical profession in the context of assisted death. Could you elaborate on potential alternative approaches or policies that could genuinely empower patients while ensuring a balance between autonomy and medical authority? What considerations should future proposals take into account?
In my PhD, I argue that the reason the law has not changed is that current and historic proposals would undermine the status quo of medical power and authority.
The issue the medical profession has had with reforming the law is that reformers have proposed bringing in third parties, such as referees/judges, into proceedings. As long as these safeguards remain, the dominant medical culture will remain opposed where external involvement risks undermining its professional autonomy. These are too explicit terms, however. Often you will hear about the need to preserve the doctor-patient relationship which seems noble. However, the foundation of this power relationship is trust; and trust is essential to maintaining the professional autonomy of the medical profession. It is from this autonomy that the profession derives its power and authority.
To circumvent this, I drew upon the work of Suzanne Ost and Margaret Brazier to propose de-medicalising assisted death to enable people to have an assisted death beyond the grip of medical power and authority. I see no reason why assisted death needs to be within the domain of medical practice. There are important policy/social reasons why we might not want to extend the power of the profession to encompass power and authority over death itself. For that reason, I would reject the need to strike a balance between patient autonomy and medical authority.
Reflecting on your research journey, what challenges did you encounter in examining the historical contingency and power relations surrounding assisted death?
The project was a huge undertaking. The debate in Britain is nearly a century old. There have been a lot of shifts in the debate, its discourses, and the range of institutional actors that have emerged within the debate at different historical points. Trying to capture this in 80,000 words meant I had to be very selective. A lot of my ‘darlings’ had to be killed, and so learning to let certain ideas or contexts go was difficult.
The biggest hurdle was attempting to incorporate Foucauldian philosophy into an ethico-legal analysis of assisted dying. I faced difficulties trying to convince others of the value or utility of my theoretical and methodological choices especially those who have fed into the conventional frame.
My critical approach is not traditional within the bioethical intellectual space. Whilst others were saying assisted death is a legal problem, or an ethical problem, I was arguing that the frameworks of law and ethics occlude an underlying context –– that assisted death is better problematised as a problem of ideology, of power.
The preservation of medical power and authority is the root of the failure of past reform attempts. In knowing this, future reform attempts can concentrate their efforts on new points of resistance that can overcome the constraining effects of medical power and authority.
Now that you submitted your thesis, how do you plan to move forward in terms of your research?
Having examined the ways in which medical power and authority have shaped legal developments of assisted death, I am now keen to examine the other aspect of the power relationship: the patient.
I am interested in those patients who are more susceptible to the effects and constraints of medical power and authority.
Currently, I am exploring the racial and cultural contexts of assisted dying reform and how changes in the law might impact people of colour and, importantly, what we ought to do about this.
In addition to hosting an event for our Alumni, Professors Michalowski and Sandoval and Dr Van Ho will speak at side events, focusing on issues arising from business operations in conflict-affected areas.
Professors Michalowski and Sandoval will address a side event organised by the Colombian Mission on the potential of securing accountability for business actors by that state’s Special Jurisdiction for Peace (JEP). They will join Roberto Vidal, a member of the JEP. This event, titled “Accountability of economic actors for grave human rights violations as part of transitional justice processes” will be delivered in English on Monday, 27 November from 11-12.30pm in Room VII at the Palais des Nations.
The remainder of this post will address the controversy of the Lundin-Aker case and information about our alumni gathering in Geneva.
Dr. Tara Van HoProfessor Sabine Michalowski
Allegations of war crimes by Swedish company Lundin
Non-governmental organisations and victims have long alleged that Lundin was complicit in war crimes committed in Sudan between 1998-2002 (the location is now located in South Sudan following the state’s 2011 independence). Allegedly, Lundin asked the Sudanese military to ensure the security of their oil field with either knowledge or indifference that this would result in the commission of war crimes.
As Dr. Van Ho has previously discussed on the prominent international justice podcast Asymmetrical Haircuts, transnational criminal prosecutions of corporate executives for war crimes remain rare, despite a large number of significant and well-substantiated allegations against multinational corporations.
In 2014, Dr. Van Ho published her chapter on the rarity of successful corporate criminal prosecutions for human rights and humanitarian law violations in conflict-affected areas and oppressive regimes. Since then, the landscape of corporate criminal prosecutions has not significantly changed, making the Lundin case the most significant prosecution of corporate executives since the Nuremberg trials.
The 2014 piece was only one in a series by Dr. Van Ho exploring the responsibility of corporations for terminating and remedying human rights violations committed in the context of conflicts. She now has a grant from Open Society Foundations for a study into the business responsibility to remediate international crimes, including war crimes, and the standards businesses should apply when exiting a conflict-affected area.
The controversial acquisition by Aker
On 21 December 2021—approximately five weeks after the Swedish prosecutors announced its charges—Aker announced its acquisition of Lundin, to be carried out in three stages starting in July 2022. The merger allegedly leaves just enough assets to cover any criminal fines levied as a result of the prosecutions but would deny remedies to Sudanese and South Sudanese victims.
Those victims were expected to make civil claims against the company following a successful criminal prosecution, a common practice in civil law states that both reduces the potential of conflict civil and criminal judgements as well as the costs and risks victims must otherwise undertake themselves when litigating a civil claim against a large multinational company. The arrangements for the merger and acquisitions also appear to include a clause indemnifying Aker from any further claims brought against Lundin as a result of its actions in Sudan.
In other words: the acquisition appears to deny the South Sudanese victims of war crimes an opportunity to pursue their right to an effective remedy.
A Panel Discussing the Effort to Secure Justice
In response to the merger and acquisition, 8 South Sudanese and European NGOs have filed a complaint before the OECD National Contact Point in Norway alleging Aker BP failed to adequately conduct the human rights due diligence expected of the company under the OECD’s 2011 Guidelines for Multinational Enterprises.
Dr. Van Ho has a forthcoming book chapter, co-authored with Dr Eugenio Vaccari of Royal Holloway, on the need for human rights due diligence during corporate insolvency proceedings, a topic intimately related to the denial of remedies through corporate mergers and acquisitions. She has spoken with Dr Vaccari and others about the issue of remedies in corporate insolvency proceedings as part of the INSOL International podcast.
In Geneva, Dr. Van Ho will discuss the intricacies of this case, focusing on how the right to an effective remedy should factor into mergers and acquisitions and what both the prosecution and the OECD complaint should tell us about the state of corporate accountability in the context of conflict.
While in-person capacity in Geneva is limited, the event will also be live-streamed and you can register to attend the event here.
In the first week of November, I participated in a workshop on advancing the implementation of positive rulings on economic, social, cultural and environmental rights. The event took place in Johannesburg, South Africa, and it was jointly convened by Amnesty International and the International Network for Economic, Social and Cultural Rights (ESCR-Net). Taking stock of the discussion, some of us also held a meeting of the steering committee of the working group on strategic litigation of ESCR-Net.
The event gave us the opportunity to talk about specific examples of what is working and what not in strategic litigation around the world, with a particular focus on cases from Africa (South Africa, Kenya, Gambia and Malawi), but also from India (workers’ rights and the right to food), Canada (right to health of undocumented migrants), Ecuador (land rights of Sarayaku indigenous people) and Spain (evictions in the private rental sector).
The team deliberated on strategic approaches to address the challenges posed by the uncertainties associated with litigation and its enduring consequences. Emphasis was placed on the critical role of civil society in spearheading the identification of concerns and the implementation of judicial decisions.
We had the privilege of visiting the South African Constitutional Court, possibly the most important national court as regards the justiciability of socio-economic rights globally. The building is full of symbolism appealing to values of transparency, culture and accessibility of justice. It is built on top of the remains of a brutal prison of the apartheid regime. Gandhi and Mandela spent time there. The location is a powerful message about learning from the past to build a more promising future founded on the principles of the rule of law and human rights.
From the cells in the prison on Constitution Hill, where the Constitutional Court is located.
The occasion was also an opportunity to express solidarity with theOgiek indigenous people in Kenya. Some of the community leaders were present at the workshop. Despite several rulings from the African Commission on Human and Peoples’ Rights, the Ogiek have suffered repeatedly violations of their human rights, including further evictions from their ancestral land.
An action in solidarity with the Ogiek people of Kenya, who have suffered multiple evictions and other human rights violations, as documented by the African Commission and Court of Human and Peoples’ Rights.
At the event, I talked about the UN Committee on Economic, Social and Cultural Rights (CESCR) as a venue for strategic litigation on housing rights in Spain. The Optional Protocol on Economic, Social and Cultural Rights was adopted in 2008 and entered into force in 2013. It allows individuals to lodge complaints in front of the CESCR against States Parties for violations of socio-economic rights. To this day, 26 countries have ratified this treaty. Spain was the third country to do so, the first one in Europe.
More than 90% of CESCR decisions concern Spain, and the vast majority of them are about the right to adequate housing. One of the most significant cases is Ben Djazia and Bellili v Spain (2017), where the CESCR made two big contributions to international human rights law: firstly, it established that the proportionality test applies to the private rental sector as well as the public one; and secondly, it ruled that the State had breached the principle of non-retrogression because in the background of the eviction there had been a large-scale sale of some 4,000 social housing units by regional authorities in Madrid to transnational real estate investment trusts.
Dr. Casla presented the Ben Djazia case at the workshop
Since 2019, Spain’s legislation has been amended several times, and some of those amendments have brought to life some of the recommendations of the CESCR. Not all recommendations have been taken onboard yet; in particular, the issues of progressive realisation and the adoption of a national plan have not been given due consideration.
However, judges are now given the opportunity to look at personal circumstances (while not obliged to do so), and there is an expectation of coordination between the judiciary and social services before an eviction is executed (but not a specific timeframe or duties on public authorities). Housing laws at regional as well as central/national levels have created additional duties for large landlords over small landlords, which the CESCR considers part of the proportionality test (López Albán v Spain, 2019).
The experience of strategic litigation on housing rights in Spain has taught us some valuable lessons.
Firstly, sometimes human rights progress comes from non-human rights litigation. In the case of Spain, the first major court victory was the Aziz case (2013), where the Court of Justice of the European Union ruled that foreclosure procedures must give judges the chance to look for potential unfair terms in the contract, opening the door to a kind of proportionality test. This ruling was based on consumer law (EU 1993 Directive), not human rights law.
Secondly, recent legal developments in Spain are a reminder that parliaments can play a central role in the implementation of international human rights rulings. After all, hardly anything can beat securing a majority in parliament for human rights-friendly legislation.
Thirdly, recent developments also show that in federal or quasi-federal countries, regions can indeed learn from each other in a sort of laboratory for democracy. As I show in Chapter 5 of Spain and Its Achilles Heels, I would argue that this is precisely what happened between several of Spain’s regional legislative chambers between 2013 and 2017.
Finally, we must not make perfect the enemy of the good. Not all of the CESCR recommendations have been implemented in Spain. The situation is far from perfect. Even those that have been implemented have been implemented only to some extent. However, in the spirit of joyful advocacy, it is important to celebrate victories when they occur, including partial victories, even if we do not achieve everything we may hope for.
Are you an aspiring legal scholar with a hunger for advanced training in law and a thirst for a vibrant research environment that fosters innovation and interdisciplinary exploration?
If the answer is a resounding ‘yes,’ then the CHASE Doctoral Training Partnership at Essex Law School could be your ticket to an exciting and transformative journey in the world of academia.
What is CHASE?
The Consortium for Humanities and the Arts South-East England (CHASE) is not just any doctoral training partnership; it is an AHRC-funded initiative that is carving out a path for the next generation of world-leading arts and humanities scholars.
Comprising nine prestigious institutions engaged in collaborative research activities, including an AHRC doctoral training partnership, CHASE is a gateway to an intellectually stimulating and supportive academic community. And we are proud to announce that the University of Essex is one of the esteemed members of this exceptional consortium.
Here at the Essex Law School and Human Rights Centre, our students and applicants to our PhD programme are eligible to apply for CHASE studentships and take advantage of the unparalleled training opportunities offered by this partnership.
CHASE is dedicated to supporting discipline-based projects, but what sets it apart is its specialisation in interdisciplinary research and emerging fields of study and creative practice. If you are looking to pioneer new methodologies, CHASE provides a great platform for your academic aspirations.
Moreover, CHASE does not just stop at academic prowess; it extends its reach to powerful partnerships with leading organizations in the creative and public sectors. This collaboration is a goldmine of opportunities for future CHASE scholars, providing a network of connections that few other programmes can match.
Why choose the Essex Law School?
The choice of where to embark on your doctoral training is not one to be taken lightly. At the Essex Law School, we have worked hard to create an environment that nurtures excellence, fosters innovation, and empowers our students to become leaders in their chosen fields.
Here is why you should consider joining us:
We are a research powerhouse. Our Law School has been ranked 3rd in the UK for research power in law according to the Times Higher Education research power measure (REF2021). This speaks volumes about the calibre of research conducted within our institution. Our academic staff collaborates with the United Nations, governments, human rights organizations, and corporations worldwide.
We believe that the best research happens at the intersection of various disciplines. This is why we encourage innovative and interdisciplinary approaches to legal research. Our research clusters bring together colleagues from different backgrounds to work on collaborative projects, creating a stimulating and diverse intellectual environment.
Our academics are the heart and soul of the Essex Law School. They bring a wealth of expertise across a wide range of legal disciplines. We are proud to have some remarkable scholars in the field, with particular strengths in areas of intellectual leadership, including Human Rights Law, led by Dr. Andrew Fagan who is Director of the Human Rights Centre; International & Comparative Law led by Professor Yseult Marique, an associate member of the International Academy of Comparative Law; Private and Business Law, led by Professor Christopher Willett who also spearheads the Law, Business and Technology Interdisciplinary Hub; as well as Public Law & Sociolegal Studies, led by Professor Theodore Konstadinides, who is also a founder member of the Constitutional and Administrative Justice Initiative (CAJI).
Our academic leads are more than willing to provide guidance and connect you with the right members of our academic staff.
Our thriving community of research students is at the heart of our success. These talented individuals investigate a broad range of exciting topics under the supervision of our academics, creating a rich tapestry of ideas and insights.
Image via Shutterstock
Where can you find out more?
Are you intrigued to explore what the CHASE Doctoral Training Partnership at the Essex Law School can offer you? Join us for an information session on the CHASE student-led studentship scheme on 18 October 2023, from 12:30-1:30 pm (UK Time), via Zoom. This is the perfect opportunity to learn more about eligibility, application processes, and the incredible benefits that await you.
For further details, eligibility criteria, and application procedures, please visit our web pages here. For questions relating to legal research and the CHASE scheme, please contact our Postgraduate Research Director, Dr. Anil Yilmaz Vastardis. If you have other specific questions about academic disciplines, do not hesitate to reach out to our academic leads (mentioned above) who are here to guide and inspire you on your academic journey.
Your journey to becoming a world-leading scholar in the field of law begins here. Do not miss this chance to be part of the CHASE Doctoral Training Partnership at Essex Law School, where innovation, excellence, and transformation are the name of the game. Your future awaits – seize it with both hands!
The book analyses the crucial role grandparents play as caregivers and spotlights through academic and practitioner contributions their relative absence within the English and Welsh legal frameworks.
The book is the first of its kind, as there is no edited collection exploring the legal and practical relationships between grandparents and grandchildren.
The book goes, however, beyond family law and draws on a wider range of legal and socio-cultural contexts to enhance our understanding of the role of grandparents in the law. It particularly explores issues of rights and relationships between grandparents, their families, and the law, including how the protection of grandparents’ rights can be balanced with parental rights and children’s welfare.
What happened at the event?
The book launch was a momentous occasion, brimming with scholarly enthusiasm and intellectual curiosity. Esteemed professionals gathered to celebrate the culmination of years of research and dedication.
The co-editors, Dr. Davey and Dr. Lindsey, took centre stage at the start, sharing insights into the book’s significance and offering a glimpse into the novel ideas contained within its pages.
An engaging and spirited debate (chaired by Professor Karen Hulme) ensued, fuelling the exchange of knowledge and fostering new collaborations. Professor Maurice Sunkin (Co-Director of the Essex Constitutional and Administrative Justice Initiative) contributed as an internal speaker, while Professor Felicity Kaganas (Brunel University) and Charlotte Knappett (partner at Fisher, Jones and Greenwood, a local solicitor’s firm) joined as external speakers – all praising the book.
Notably, Prof. Sunkin drew attention to inter-generational issues and how different events globally have affected the importance of grandparent/grandchild relationships.
Charlotte Knappett spoke about her experiences of working with grandparents as kinship carers seeking SGOs, etc.
Prof. Kaganas, an eminent expert in the fields of family and child law, discussed the issue of whether there should be a presumption in favour of grandparent contact. She agreed with most of the authors that there should not be such an emphasis.
Several of the contributing authors attended the event too: Sneha Shrestha, a barrister, as well as Essex Law School academics Dr. Laure Sauve, Dr. Sahar Maranlou and Liz Fisher-Frank. Professor Joan Hunt (School of Law & Politics, Cardiff University) as well as Jo Harwood (Essex Law School) and Dr Charlotte Bendall (Birmingham Law School) joined virtually.
Academic scholars, researchers, and practitioners gathered for the launch of the edited collection (pictured from left to right: Dr. Laure Sauve, Sneha Shrestha, Dr. Samantha Davey and Dr. Jaime Lindsey (co-editors), Charlotte Knappett, Liz Fisher-Frank and Dr. Sahar Maranlou.
Overall, the event fostered spirited discussions, highlighting the significance of this edited collection and its power to shape our understanding of the critical role grandparents play in our legal system. The book found its place on our Law School’s shelves, destined to shape academic discourse and inspire future generations in their pursuit of knowledge.
What’s next?
Building on their work on mediation within one of the collection chapters, Dr. Charlotte Bendall and Dr. Samantha Davey have been awarded a Research Activities Fund from the Society of Legal Scholars to pursue this research further.
The award will support a joint project undertaken by Dr. Davey and Dr. Bendall (Birmingham Law School), who worked together one of the chapters in the collection, focusing on mediation as a potential method of alternative dispute resolution for disempowered groups, affected by family fragmentation, such as grandparents.
The research grant will enable the co-authors to conduct empirical research on this matter. They are currently working with several non-governmental organisations, mediators, and legal practitioners with an interest in this area.
Dr. Davey has been working with Dr. Bendall and Dr. Rehana Parveen more generally on supporting families. To find out more about their work and collaborative network, see the Family Law Reform Now initiative here.
By Dr Koldo Casla, Lecturer at the Essex Law School and Director of the Human Rights Centre Clinic, University of Essex
In the last year, I spoke with academics, practitioners, and representatives of human rights NGOs about the right to property. These conversations originated from my ongoing research on the relationship between the right to property and socioeconomic rights, which resulted in an article recently published by Human Rights Quarterly, as well as a longer-term project.
I show how international human rights bodies that deal with socioeconomic rights, both in the UN and at the regional systems, have largely bypassed the issue of property. I believe that this is a missed opportunity. The right to property can be reformulated as a right that should be interpreted in accordance with all other human rights in international law—in other words, not as an exclusivist, absolutist, and individualist right, as libertarians would desire, but as a right with an inherent social function.
Most of the people and organizations I encountered in this journey were intrigued by the proposition, and a good number of them were sympathetic. Others, however, resisted the move, arguing that property should not be put in the same category with the other values and entitlements that we hold dear, such as nondiscrimination or access to health, as it sustains colonial and neoliberal inequalities.
My response in defense of a new social right to property contains five points.
First, property and private property are not synonymous. It is important to distinguish between communal and private property—in the former case nobody has the right to exclude anyone else from accessing the resource in question.
Back in 1990, the UN General Assembly adopted without vote Resolution 45/98 on the “respect for the right of everyone to own property alone as well as in association with others and its contribution to the economic and social development of Member States.” The resolution recognized that there are many forms of property, private property, but also “communal, social and state forms.”
Regional case law in the Americas has shown how property can go beyond private property. In Awas Tingni v. Nicaragua (2001), the Inter-American Court recalled that, in the drafting process of the American Convention on Human Rights, it was purposefully decided to leave the word “private” out of article 21, a point the court used to extend the application of this provision to other forms of communal and collective property rights of indigenous and tribal groups. In that case, and others that followed, the Inter-American Court connected the right to property with the economic survival, spiritual life, and cultural identity of Indigenous peoples.
Second, many groups have historically been discriminated against and prevented from accessing property. This includes ethnic and national minorities, Indigenous communities, colonized people, women, and people with disabilities. The recognition of property was a progressive achievement for many who were and are denied the opportunity to be more autonomous and have greater control over their lives. Despite not recognizing property as a right as such, the two key treaties from 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, mention property as one of the prohibited grounds of discrimination, as do the other core human rights instruments dealing with groups deserving of special protection: ethnic minorities, women, children, people with disabilities and migrants.
The third point is this: property is not a euphemism for the accumulation of capital and is not necessarily property over the means of production. The distinction between property over personal items and economically productive property was of primary importance in the 1936 Soviet Constitution (articles 6–10).
The right to property is—or can be—the right to the protection of items that are of value to humans. This protection need not be absolute. A useful starting point to strike the right balance between (private) property and other legitimate interests in human rights may be article 23 of the 1948 American Declaration of the Rights and Duties of Man, which provides protection as a matter of human rights only to the level of private property that “meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.”
Fourth, in a market economy, satisfying economic and social rights requires property, including economically productive property, and a fair tax system. The social function of property changes the role of taxes from a potentially but moderately acceptable form of interference—article 1, Protocol 1 of ECHR—to an indispensable tool to ensure economic, social, and cultural rights. States’ duty to fulfill these rights ought to be seen as one of the most important objectives that may justify limiting the right to property as a matter of public interest.
The fifth argument in favor of a social right to property is worth pointing out even at the risk of stating the obvious. The right to housing is not the right to be given a house. The right to social security is not the right to be given an income irrespective of personal circumstances. Socioeconomic rights declare certain standards of adequate material well-being, identify duty bearers, and affirm the principle that those standards should improve over time (progressive realization). Everyone is entitled to those standards, and public authorities must implement policies accordingly. For some, the state will need to provide tailored programs, for instance, in the form of social benefits or social housing. But, for others, their own private resources will be the means by which they satisfy their right to an adequate standard of living, even though they may still rely on universal services like public education and public healthcare.
Three decades ago, the then Commission on Human Rights issued the last UN report to date on the right to property, written by Luis Valencia Rodríguez. The world has changed remarkably since then. The human rights sector is also more mature, with a now vibrant community of activists working on economic and social rights who can rely on literature from UN treaty bodies and special procedures, as well as case law from national and international courts that did not exist in the early 1990s.
Human rights bodies, academics, and practitioners should feel confident in addressing the meaning of property and its coexistence with other human rights.
In the middle of a cost-of-living and food crisis, and in the aftermath of an appalling pandemic, it is now more urgent than ever to redefine the contours of property and its social function in light of economic and social rights.
This piece was first published on the Open Global Rights platform and is reproduced on the ELR Blog with thanks. The original piece can be accessed here.
On 5 April 2023, Dr. Sabina Garahan (Lecturer, Essex Law School) and Dr. Matthew Gillett (Senior Lecturer, Essex Law School submitted evidence to the Joint Committee on Human Rights (the “JCHR”) as part of its legislative scrutiny of the Illegal Migration Bill. Their submission focused on detention-related questions posed by the JCHR.
Dr. Garahan recently completed her AHRC-funded research on the right to liberty under European human rights law. Dr. Gillett is the Vice-Chair of the UN Human Rights Council’s Working Group on Arbitrary Detention (the “Working Group”). The submission expresses shared concerns that the proposed legislation conflicts with fundamental protections against arbitrary detention set out in the European Convention on Human Rights (the “ECHR”) and the International Covenant on Civil and Political Rights (the “ICCPR”).
The authors’ submission identifies several areas in which the Bill conflicts with the right to liberty as enshrined in Article 5 of the ECHR. Importantly, it raises the possibility that the UK Government may be the first Council of Europe Contracting State in history to be found in breach of Article 17, which prohibits the destruction and excessive limitation of ECHR rights.
Dr. Garahan’s and Dr. Gillett’s written evidence equally highlights the potential breach of Article 18 in conjunction with Article 5, on account of the likelihood that the legislation was introduced in bad faith under the ECHR – namely, on the basis of aims not listed under Article 5. Immigration detention that is predominantly imposed on grounds other than those permitted by Article 5 will be found to violate Article 18. The Government’s documented anti-migrant rhetoric, which has sparked significant concerns among international expert bodies, and the expedited passage of the Bill through Parliament strongly indicate the existence of bad faith.
Finally, the submission addresses likely violations of Article 9 of the ICCPR, which protects against arbitrary detention in a range of contexts including immigration-related processes, as held by the Working Group. In introducing discretionary powers to detain anyone suspected of entering the UK unlawfully, for such period as is “in the opinion of the Secretary of State” reasonably necessary (namely, without any time limit), the Bill undermines the exceptionality and necessity limitations of immigration detention.
Dr. Garahan and Dr. Gillett are members of Essex Law School/Human Rights Centre and the Essex Constitutional and Administrative Justice Institute. Their full submission can be accessed on the JCHR website here and a copy can be downloaded from our ELR Blog below.
On 7 March 2023, the UK Government introduced the Illegal Migration Bill with the stated purpose to “prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes.” The Bill introduces provisions that would amend immigration, asylum, and modern slavery legislation.
Dr Marija Jovanovic conducted a legal analysis of the modern slavery clauses in the Illegal Migration Bill. The analysis has been commissioned by the Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC), which in turn is funded and supported by the UK Arts and Humanities Research Council (AHRC).
Dr Marija Jovanovic is the author of State Responsibility for ‘Modern Slavery’ in Human Rights Law (Oxford University Press, 2023).
The Explainer and the legal analysis can be read in full here.
The ECHR has been instrumental over the past few decades in terms of moving the dial forward for LGBTQ+ rights in the UK
Rishi Sunak, the British Prime Minister, is said to be actively considering withdrawing the UK from the European Convention on Human Rights (ECHR).
This would be a very bad decision. The ECHR is an international treaty that most European countries signed after the tragedies of the second world war, committing them to protect fundamental human rights. It is separate from the European Union.
The UK’s membership of the ECHR has played an important role in increasing the protection afforded to LGBTQ+ people over many years. There are three legal cases in particular that demonstrate how the ECHR has prompted Parliament and the government to respect the rights of LGBTQ+ people. LGBTQ+ people should reject calls to withdraw from the ECHR and raise awareness of the good that this treaty has done.
Homosexuality and the army: Until 2000, the UK Ministry of Defence had a blanket ban on gay men and lesbian women serving in the army. This was based on the prejudice that homosexuality was “incompatible with service in the Armed Forces”.
When the case was heard by an English court in Smith v Ministry of Defence, the judges concluded that the ban was lawful. By contrast, when the case was heard in the Strasbourg Court – the international court that interprets the ECHR – the judges concluded that the ban was a violation of the UK’s obligation to respect the private life of gay men and lesbian women and found it unlawful.
Though controversial at the time, the Strasbourg Court’s opinion is now wholly mainstream, with the Ministry of Defence issuing an apology in 2007, and the current government establishing an “LGBT Veterans Independent Review” in 2022 to explore the effects of the ban on LGBTQ+ veterans.
Transgender recognition: Until 2004, UK law did not allow trans people – including those who had had surgery – to live as their true gender for legal purposes. A trans woman could not, for example, marry as a woman and would be registered as a man for all legal purposes, such as employment and social security.
In 2002, in Goodwin v United Kingdom, the Strasbourg Court concluded that this was a disproportionate interference with trans people’s right to respect for their private life. This case did not consider exactly when legal recognition should be possible – such as through self-identification – but it did decide that the failure to provide any legal recognition, including for post-operative trans people, was unlawful.
This case was a major factor in the trend towards legal recognition of trans people.
In 2003, the British courts in Bellinger v Bellinger concluded that UK law should be brought into line with the Strasbourg Court’s decision and, through the Gender Recognition Act 2004, it eventually was.
Decriminalising gay sex: While homosexual sex was decriminalised in England, Wales, and Scotland in 1967, consensual homosexual sex remained a criminal offence for which men could be imprisoned in Northern Ireland until 1982.
This was reversed only after a Strasbourg Court case called Dudgeon v United Kingdom, which found that the criminalisation of consensual homosexual sex was a disproportionate interference with the private lives of gay men. After this case, ministers changed the law of Northern Ireland so that gay men could have sex without being imprisoned.
LGBTQ+ History Month is a good time to reflect on how we have succeeded in moving closer to equality for everyone in the UK over many years. Naturally, there are no simple answers.
The effective promotion of LGBT rights has involved a network of political, social, legislative, judicial, domestic, and international action.
The ECHR will never be the only answer, but it has been and remains part of the answer and the government is wrong to contemplate withdrawal. LGBTQ+ people in the UK should reject calls to withdraw from this important treaty.
This piece was first published on Openly and is reproduced on the ELR Blog with permission and thanks.
The piece was also cited on the floor of the House of Commons by Alison Thewliss MP here.
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