In conversation with

Decoding Historical Power Struggles and Shifting Paradigms in Assisted Death: In Conversation with Dr. Rees Johnson

/ essexlawresearch / Leave a comment

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.

UN Mission on Arbitrary Detentions in Mexico: In Conversation with Dr Matthew Gillett

/ essexlawresearch / Leave a comment
Dr. Gillett and his team during an Inspection of a detention facility

Dr. Matthew Gillett, the Vice-Chair of UN Working Group on Arbitrary Detention and Essex Law School academic, spearheaded a high level delegation on a recent mission to Mexico. His team visited multiple sites across Mexico City, Nuevo León, and Chiapas over 11 days. 

Their mission included interviews with detainees and assessments of police stations, migration detention centres, sanctuaries of vulnerable children, mental health institutions and the very corridors of prosecutors’ offices. The delegation also met with significant figures, including President Norma Lucía Piña Hernández of the Supreme Court, and offered key recommendations to the Mexican government. 

Meeting the president and members of the Supreme Court of Mexico

The Essex Law School Research Visibility Team had the opportunity to interview Dr. Gillett about his recent trip, the different layers of the UN project and their impact:  

Dr. Gillett, what inspired or motivated you to focus on arbitrary detentions, and how did the idea to visit Mexico specifically come about? 

Having worked in criminal justice for 20 years, I have increasingly seen that the moment of detention is a critical point in the application of the law. If the State power to detain is misused, then it can violate a person’s right to liberty and can also lead to other violations including enforced disappearance, torture, and even extra-judicial killings. I’ve worked on detention related matters in New Zealand, Afghanistan, Mongolia and several other countries. 

But this latest mission to Mexico came about through the United Nations Working Group on Arbitrary Detention, of which I am the Vice-Chair. We considered Mexico an important country to assess, because of its large and diverse population, and its major issues with migrant-related detention at the moment.   

Were there any moments or encounters during your trip that deeply impacted or surprised you? 

There were many moments during the mission to Mexico that were deeply affecting. Seeing detainees with open wounds, sometimes sleeping on concrete floors in over-crowded cells, was shocking. But also learning of the challenges that Mexico faces, including the hundreds of thousands of migrants passing through its territory, brought home the complexity of the situation.

While observing the situation in Mexico, what progress stood out to you, and conversely, what challenges deeply concerned you?

Mexico’s progress in terms of placing human rights at the centre of its constitution and establishing a National Registry of Detentions were important steps forward. Prison officials were largely professional and not using violence against detainees in a systematic way from what we discerned. 

However, significant challenges remain, particularly in terms of the use of violence by security forces conducting arrests out on the streets, and the imposition of mandatory pre-trial detention, as well as shortages in staff and resources at prisons which lead to many detainees being kept in their cells the vast majority of the time without access to proper sunlight and fresh air.

What are the key recommendations you’d like to emphasise from the UN Working Group, and how have the responses from the Mexican authorities and international community felt to you? 

We would strongly recommend increasing the scope of the National Registry of Detentions to cover all deprivations of liberty, including administrative detentions of migrants for example. We would also emphasise the need to remove mandatory pre-trial detention and ensure that individualised assessments are carried out to verify that persons detained before trial are either a flight risk, or risk of tampering with evidence or serious re-offending. The Working Group and the Inter-American Court of Human Rights have both called for this change in their judgments. 

During the visit, we sensed an openness on the part of the Mexican authorities to take up our recommendations. At the same time, we urged them not to wait for our full report, which we will deliver to the United Nations Human Rights Council in September 2024, to start implementing changes.

On a personal note, how has this trip impacted your views on human rights and arbitrary detention globally? What message would you want to convey to international readers regarding the situation in Mexico and the efforts of the UN Working Group?

There are two points which I take away from the Mexico mission. 

One is the importance of investigating at multiple levels in order to get a holistic view of the situation. We spoke to over 170 detainees, as well as officials at the federal, state and local levels, and many NGO and civil society actors. The communications are critical to understand the depth and breadth of human rights challenges, but also to provide focused recommendations which are feasible and impactful. 

The second is that the wheels of justice must speed up! People should not be left for years, languishing in detention, before they have a trial. It’s a global problem that requires a concerted effort on the part of governments and the judiciary. They must ensure that everyone charged with a crime enjoys their right to trial without undue delay.

Accountability for Digital Harm Under International Criminal Law: In Conversation With Sarah Zarmsky

/ essexlawresearch / Leave a comment
Image via Shutterstock

Sarah Zarmsky, PhD Candidate and Assistant Lecturer at the Human Rights Centre, is a recipient of the 2023-2024 Modern Law Review Scholarship for her PhD thesis ‘Accountability for Digital Harm Under International Criminal Law’, supervised by Professor Carla Ferstman (University of Essex) and Dr Daragh Murray (Queen Mary University of London).

Sarah was awarded the Mike Redmayne Scholarship, instituted in memory of past MLR Committee Member Professor Mike Redmayne, which is presented to the best applicant in the fields of Criminal Law and the Law of Evidence (and related fields).

Modern Law Review Scholarships are prestigious awards provided to doctoral researchers in the United Kingdom and are funded by the Modern Law Review. Sarah is the first candidate from the University of Essex to receive the scholarship!

The research visibility team talked to Sarah about her success and took the opportunity to find out more about her plans:

This is an impressive achievement. How does it feel to bring this award to the University of Essex for the first time?

Thank you! It feels great, I’m very proud of it and to be part of such an impressive group of recipients. It’s very rewarding to have your research, that you invest so much hard work in, be recognised by others, especially by a journal as reputable as the Modern Law Review.

Could you tell us a bit more about your research? What gaps or shortcomings have you identified when it comes to addressing digital harm in the context of international criminal law?

My research examines how digital harm with relevance to the perpetration of international crimes may or may not be accommodated within existing international criminal law frameworks. Where criminalization may not be appropriate or feasible, it identifies possible alternatives for obtaining justice for victims of digital harms, such as through corporate criminal liability or regulatory frameworks.

I think the main takeaway so far is that the law has not yet ‘caught up’ with new ways of inflicting harm through technology, and depending on the type of harm, international criminalisation may or may not be the answer. There are some digital harms where we can see a clear link to existing international crimes, such as online hate speech and incitement to genocide, or sharing footage of crimes as an outrage upon personal dignity. It will be harder to accommodate more ‘novel’ types of harms, such as algorithmic harms or digital mass surveillance with ICL as it stands, so I am entering the stage of my research where I explore complementary strategies for achieving justice for victims of those harms.

In a single sentence, how would you summarise the importance of your research when describing it to an undergraduate student?

New technologies are important for advancing accountability for international crimes, but they also create new ways to perpetrate existing crimes or entirely new crimes, so this research is important in laying the foundation for future discussions as to how international criminal law can best accommodate digital harms.

With the evolving nature of digital threats and the global nature of the internet, how can international cooperation and collaboration be fostered to ensure effective accountability mechanisms for digital harm? Are there any notable examples or initiatives you could share that illustrate promising efforts in this area?

This is a complex question, but to answer it briefly, I would stress that as an international community, we need to be recognizing how harmful new technologies can be if used maliciously and that these harms are grave enough to be international crimes. I think sometimes the technology aspect can be roped in with other more ‘traditional’ offences and not treated as crimes on their own, which can result in less tailored justice for victims.

There are some promising developments in domestic war crimes trials, such as in The Netherlands, Germany, and Sweden, where individuals have been convicted and sentenced for war crimes for sharing degrading footage of executions on social media. I think these are positive developments because they serve the expressive function of recognizing how humiliating and degrading it can be to share footage of people in their most vulnerable states, and send a message that this is a serious crime.

This has not yet happened at an international criminal court or tribunal, but with the rise of open-source evidence initiatives at the ICC for example, I think it could definitely be a possibility going forward.

Do you anticipate your research will influence policy and if so, how?

I hope that my research can provide guidance for how ICL lawmakers and practitioners can ensure that the law keeps up with the times to fully address new ways of inflicting harm through technological means. My goal is to bring these issues to light and hopefully spark discussions within the ICL community about how we can account for digital harms moving forward.

Which direction do you see your research going in the future and why?

I’m now entering the third year of my PhD, during which I plan to apply my research thus far to one or two case examples and be able to highlight how the theory might work in practice, which I think will be really valuable. After the PhD, I would like to continue in this realm of ICL, human rights, and new technologies, perhaps delving deeper into one of the specific digital harms with a nexus to international criminal law that I have identified in the thesis.

International Investment Law as Development: In Conversation With Dr. Claiton Fyock

/ essexlawresearch / Leave a comment
Aerial view of Favela da Rocinha, Rio de Janeiro (image via Shutterstock)

Dr. Claiton Fyock is a Lecturer in Law at the University of Essex. He researches International Economic Law and Development from critical methodologies. He teaches Trade, Investment, Human Rights and Environment; Jurisprudence; and Human Rights. Claiton recently concluded his PhD thesis ‘International Investment Law as Development: The Ideological Constraint of the Grand Bargain.’ and is interviewed for the ELR Blog about the originality of his research, his PhD journey and his future plans.

In two sentences, what is your thesis?

My thesis examines how the narrative of the ‘grand bargain’ found in International Investment Law (IIL) constrains the legal and political economic agency of developing states participating in the regime.

The grand bargain posits that, in ceding a portion of their regulatory sovereignty to IIL, developing states signal to foreign investors that they are committed to the legal protections offered by the regime, which is presumed to benefit developing states by encouraging further Foreign Direct Investment (FDI) to enter their borders.

How did your research emerge?

I came to this research out of a deep skepticism about the project of international economic law prompted by engagement with Marxist theory and Third World Approaches to International Law. I was and remain very interested in how international law helps entrench and reproduce the current exigencies of inter- and intranational wealth inequality and environmental degradation – exigencies that are particularly felt in the Global South.

My intuition was that international law’s role in the reproduction of human and environmental exploitation was perhaps most readily apparent in its involvement at the sites of economic production (sites increasingly located in the Global South). IIL seemed to be the most obvious point of departure for this reason, and the more I researched the topic, the more IIL’s constraint on developing states’ legal and political economic agency became apparent.

How would you describe your argument and methodology?

The thesis questions the rationale of the grand bargain by developing a theory of ideology critique I label the ‘ideological process’. This method attempts to account for how developing states are simultaneously constrained by both the conceptual and practical elements of IIL.

I argue that, rather than being purposed for the legal protection of foreign investment, the raison d’etre of IIL is the facilitation of the accumulation of capital for a transnational capitalist class. It does this largely through a narrative about development embodied in the notion of the grand bargain. Though the grand bargain’s discursive weight has waned in recent years, coinciding with contestation over the regime’s ability to encourage FDI, it remains that international organisations continue to promote FDI and IIL as necessary factors in developmental initiatives such as the Sustainable Development Goals.

My thesis argues that, through the practice of international arbitration, treaty-making and scholarly engagement, IIL’s features embody and entrench the hegemonic, specifically capitalist concepts put forth by the regime’s more powerful actors.

Consequently, the capitalist iterations of features such as development’s role in the definition of investment, sovereignty in cases of indirect expropriation and consent in investor-state contractual disputes circumscribe the plurality of these same concepts.

By accepting the narrowly capitalist iteration of these concepts in their participation in IIL, developing states accept a circumscribed agency in configuring their own political economic and legal policies.

What is your contribution to research in your subject area?

My contribution to the subject area is two-fold:

First, I provide an original approach to ideology critique and international law. While ideology critique is a long-standing Marxist approach to legal analysis, previous uses of the method have either been preoccupied with a fixed definition of ideology or overly focused on power’s discursive role in entrenching ideological practices.

My approach is to treat ideology as a dynamic process which accounts for both the relationship between practice and concept and the impact hierarchical power relations have on the relationship between practice and concept. By approaching ideology this way, I am able to demonstrate how the operation of IIL reifies and entrenches particularly capitalist iterations of some of IIL’s most fundamental concepts – development, sovereignty and consent.

My hope is that this method would be applicable across various areas of international law and provide scholars a new way of apprehending ideology in legal practice.

Second, my thesis places IIL’s justification for itself (the grand bargain) within the context of global concerns about wealth inequality and environmental harm while not relying on competing legal norms or criticisms of neoliberalism. While there have been many effective criticisms offered against the regime from disciplines such as human rights (several fine examples originate from here at the University of Essex), my research attempts to locate IIL’s inherent deficiencies at the level of the capitalist political economy.

I take an explicitly radical approach which contends that the problems identified with IIL are intrinsic to its explicitly capitalist operation – it will only ever reproduce capitalist practices and concepts; practices that will only ever facilitate the accumulation of capital for a transnational capitalist class. Accordingly, efforts at its reform are misplaced; IIL’s problems are intrinsic to the structure of the regime itself. Implicit in my argument is that nothing short of abandonment will rectify IIL’s harms.

However, this need not be of concern for states or practitioners of international law. There is not a fixed necessity for any one of IIL’s practices or conceptual formulations. Rather, effort should be focused on how international law can meet the needs of communities and the environment in ways alternative to the capitalist political economy.

Has your view of your research topic changed during the research?

I wouldn’t say that my view of IIL has changed. It has certainly, obviously become much more nuanced, but I believe my original intuition about IIL’s role in the previously mentioned problems of wealth inequality and environmental degradation has remained.

What has changed over the course of my research is my understanding of the pliability of international law and its scholarly discourse. Early in my research I had a tendency of viewing IIL as a fixed thing. Over the course of the PhD, I was constantly reminded how swiftly things can change in a regime such as IIL – for example, the discourse about sustainability has exploded in the scholarship over the last 5 years.

What would you advise someone who is about to embark on a PhD journey in your field?

I have a hard time thinking that there is any kind of universal advice for embarking on a PhD in international law. One thing I’m happy I did consistently throughout the process was read outside the field of law, particularly theory. I do think legal research can become very insular. I very much believe that there is a lot to be gained from venturing outside of this silo and embracing multidisciplinary approaches.

In doing so, we’re better able to identify potential alternatives to legal practices that might bring about the kind of progressive changes I believe are needed with issues such as wealth inequality or environmental degradation.

Now that you submitted your thesis, how do you plan to move forward in terms of your research?

While writing my thesis I had the opportunity to publish a side piece on international economic law and degrowth and some polemics on climate litigation and corporate actors. I plan to continue to investigate the nexus between international economic law, development and the environment with some upcoming articles.

After the publication of these works, I hope to revisit and transform my thesis into a monograph and look forward to submitting the book proposals after some time off from it.