Archive for October, 2013

October, 2013

Making Sense of Land

Ethics Land Use

Few things on earth are as mysterious as the living soil. One would hope otherwise, as most human food production depends on that small fertile layer that allows plants to grow. But while their importance is plain, soils are, scientifically speaking, exceedingly complex. A single spoon of earth is so rich in biodiversity that some have dubbed it the poor man’s rain forest. Plant growth requires the right nutrients in sufficient quantities and the proper soil structure – not too brittle, not too solid. Fertile soil needs century to build and yet can get lost within moments in a strong rain shower. Clearly, soils have their own distinct ways to make brilliant humans look foolish.

It was easy to forget this during the symposium at Germany’s National Academy of Sciences Leopoldina, which I attended this week. It discussed the future of agricultural land use in Germany and beyond, and speakers offered a bewildering array of figures. They could project land use for decades into the future, in addition to energy needs and food consumption. They also knew how climate change will influence the productivity of land worldwide. Some even talked about the situation in 2100. And they had figures to offer, too.

Frankly, I was confused. I still am. Few things are more intimidating than experts with figures.

Or, to be more precise, experts with figures that you take at face value. It was usually not too difficult to sense that these figures were merely informed guesses at best. Some speakers were quite clear about the uncertainties involved. Others conceded their qualms in the discussion. A third group preferred to ignore the issue altogether, as if that would make figures more trustworthy.

Of course, no one should be blamed for being uncertain about the future. And we surely need projections, particularly in a setting like the Leopoldina, which serves as a link between academia and government. The overall topic, the future of land use, surely deserves some attempts at projection. Whether and how planet earth can feed some nine billion habitants in 2050 is no trivial issue.

Still, there was a notable gap between the confidence of a number of experts and the intricacies of the living soil. Through their sheer complexity and fragility, soils teach humilities. My symposium was notably scarce of humility.

Speaking at the very end of the conference, I had a chance to adjust my talk accordingly. I had been invited to talk about the ethics of land use, and I used the occasion for a far-reaching voyage across space and time. In fact, the talk became much more sweeping than anything I would offer to my scholarly colleagues in history, who would surely have ask for more nuance in my talk. But then, you need to cut through complexity once in a while.

My point was that the ethics of land use has come a long way. We once had the land title, one of the most marvelous cultural inventions of modernity: a single unique identifier of property ownership. Then a lot of things happened throughout the twentieth century. Peasants complained about the unjust distribution of land. Estate owners, once invulnerable in feudal societies, lost much of their power and their firm grip on land. Politicians called for and enacted land reforms. Erosion became a global problem due to the intensification of land use. Excessive fertilizer use created a whole host of environmental problems. Government programs stepped in to prevent the worst. Gone are the times when farmers could do on their fields as they please.

Taken together, that is an awfully diverse set of goals. We want our soils productive, healthy, immune to erosion, without deleterious externalities, and distributed in an equitable way. As it stands, we have no idea how merge all this in a coherent vision of stewardship. The land ethic that we have is a palimpsest of claims and hopes.

In short, the ethics of land use looks increasingly like a train wreck. It’s no longer the proud engine of modern property law churning ahead at full speed. There are multiple engines on the same track now. And you don’t need to know much about railroads to sense that this spells trouble.

My conclusion was that it would be surprising if we would not encounter surprises in the future. Prepare for the unexpected. And plan in a way that leaves room for unanticipated developments. Not something that government advisors get cited for, but something that government advisors should know.

So where does that leave George Monbiot’s wilderness? Summarizing the talks, there may be room for his vision – in fact, more room than I had expected when I came.

But maybe he should skip the reference to the 30 million acre projection, and generally refrain from figures as much as he can. As a clever man, he should know that land is about much more than figures can tell.

Frank Uekotter

Further useful links:

Ethics in Land Use Issues

Bioenergy and Land Use: Framing the Ethical Debate

Land use ethics managing driving forces and searching a proper response

Land use ethics and property rights

Avoiding Ethics Traps in Land Use Decision making

A set of ethical principles to guide land use policy

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October, 2013

The Call of the Wild; rewilding for environmentalists. Frank Uekotter


Earlier this month George Monbiot gave a talk at Birmingham’s new Central Library. It was a memorable experience, not least with a view to the audience. It reminded me of many similar events that I have attended in Germany. Never in my two months in town have I seen Birmingham so monoethnic (read: white). I also saw a lot of grey hair. If you are in your 40s and want to feel young once more, consider becoming an environmentalist.

Okay, let’s get serious. Monbiot is, after all, a serious man. His oratory style centered on laying out an argument. No jokes for two hours, and very little passion (usually in ample supply in green circles). In short, it was an appeal to reason if ever there was one. But then, Monbiot had a stimulating argument to make. He called for a new approach to nature conservation: rewilding.

From the historical standpoint, it is  surprising that there are still new approaches to nature conservation left. We have been in the business of protecting nature for more than a century now, and it seems as if we had seen it all: nature reserves, national parks, restrictions on hunting, a renaissance of hunting, ecology, biodiversity and so forth. All over the world, states sought to protect all sorts of environments. But Monbiot brought it to a new level.

He called for large swaths of land with no human intervention. If only left to itself, nature would thrive beyond our wildest dreams. And to cap it all off, Monbiot proposed to bring back megafauna long extinct in our backyard. Not for show, but to boost the ecological dynamism.

In other words, he proposed to bring the elephant back to Britain. No, I am not joking. As I said, Monbiot means business.

It is not difficult to conceive possible objections. His trust in the inner logic of nature is heartening, but nature can get off course – particularly in the age of invasive species. It is also debatable whether human intrusions can really be reduced to the desired level. For example, humans emit great amounts of nitrogen oxides nowadays, which amount to airborne fertilization of even remote lands. In this setting, habitats that require a scarcity of soil-borne nutrients are under threat if humans don’t intervene. We have probably done too much damage to the natural world that we can withdraw from management completely.

And then there is public opinion. Monbiot was optimistic that an excited populace would welcome wild animals. But then, we have become accustomed to an environment that is mostly harmless. The worst we usually fear on a hiking trip is a sprained ankle. When a bear returned to Bavaria in 2006, the first one to show up in almost two centuries, officials panicked and had him shot. (The bear had behaved erratically, but that is how bears act when they make a new home.) Fears may not be rational, but they have consequences.

And yet I was inclined to give Monbiot the benefit of doubt. Why not let him try? We have many species and many different types of habitats. We can certainly tolerate a multitude of approaches to conservation. Above all, it is a positive vision for environmentalism, something that does not come along every day. Environmentalists are usually much more certain about what they are against.

One final caveat remains: do we have the land? Monbiot was optimistic, citing a study that European farmers will vacate 30 million acres of land by 2030 (an area the size of Poland). But land use is a contested issue, as I learned at a conference at the German Academy of Sciences Leopoldina this week, and which will form the topic of my next post.

Further useful links:

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October, 2013

The German Greens in Transition

Among the Green Parties of the world, the German Greens have always received special attention. Ever since its foundation in 1980, observers from abroad have become enchanted with the party and its fascinating journey. And the party surely had its charms. It had charismatic figures like Petra Kelly and Joschka Fischer who made a name for themselves far beyond Germany’s borders. It stirred up a somewhat complacent political system, being the first successful new party in Western Germany since the 1950s. And it changed the country: the phase-out of nuclear power, the push for renewable energy, gay rights – there are a lot of issues where the Green Party was in the vanguard.


But when you talk with a Green Party member about their proud tradition nowadays, you will likely get an evasive answer: “Maybe we can talk about this another time?”

The federal election on 22 September 2013 has left the Green Party in disarray, and once more, the reasons deserve attention. An obvious place to start is personnel. The founding generation is gradually leaving the stage. Claudia Roth and Jürgen Trittin, who had influenced the course of the Greens over decades, stepped down after the election; Joschka Fischer had previously retired from politics in 2005. The new faces are widely unknown, even within the party itself.

Another troublespot, and a particularly ironic one, is success. Many of the party’s original concerns are common-sense issues nowadays. The German decision to retire all nuclear power plants by 2022, taken in 2011 with broad support from all major parties, marked the disappearance of the last environmental issue that truly divided the electorate. A transition to renewable energy sources, formerly decried as a green midsummer night dream, is now government policy. In Germany, every sane politician is green, or at least knows how to act that way.

But then, the German Greens are not a party that is about to disappear. They would probably be content with their share of the vote – 8.4 percent – if they had not hoped for more. Some polls showed them claiming a quarter of the popular vote two years ago, and they clinched their first prime ministership in the southern state of Baden-Württemberg in 2011. Pundits had rhapsodized about the Greens dethroning the social democrats as the main opposition party.

In earlier times, the Greens had often thwarted similar chances through political blunders. They were eager to do better this time and show their professionalism. Their election platform was rock-solid, down to elaborate plans for tax reform. They sought to demonstrate that they were ready to govern, and they were proud of it. In his post-election speech at the Green Party convention, Jürgen Trittin took pride in noting that their platform provided an answer to every question.

But maybe that is the problem? In times of uncertainty, people tend to distrust people who have all the answers. It smacks of overconfidence and a maniacal desire for control. And even if the Greens have good answers – do they have the right questions?

Among the chief attractions of the early Greens was its open mind. They were different from the mainstream parties with their eternal themes and faces. They gave room to debates. And they offered food for thought.

Maybe the next generation should be more cautious than Jürgen Trittin. Today’s voters probably do not want their representatives to have all the answers, and they know for sure that we will not save the planet with one stroke of genius. They may be glad enough when politicians have the right questions, some ideas on how to reach answers, and intellectual humility to boot.

Frank Uekotter

Useful further links:

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October, 2013

Resuscitating Nuclear Power Frank Uekotter

Last week the British government announced a deal with the French utility EDF over the construction of two new reactors at Hinkley Point in Somerset. It is the first new nuclear power station to be built in Great Britain in a generation, and it has drawn vigorous criticism from the environmental community. Nuclear power is not safe – see Chernobyl and Fukushima. There are unresolved problems such as nuclear waste. It undermines the future of renewable energy. And with a guaranteed price at twice the current market rate, nuclear electricity will be obscenely expensive. Rarely has the case against nuclear power been so easy to make.


From the historian’s point of view, there is even more ground for scepticism. After all, this is not the first time that we are getting a lousy deal on nuclear power. Since Fukushima, the risk of a nuclear meltdown is plain. But the history of nuclear power does not look much better if we look at it in purely economic terms.

Nuclear reactors are expensive to build, cheap to run, and expensive to dismantle. In other words, building a nuclear reactor means hedging a bet on energy needs for decades into the future, far more so than for fossil fuels and renewables. It is the kind of risk that corporations usually shun unless there is an emergency.

The 1950s and 1960s, when the first commercial reactors were built, were no such time. In the history of modern energy, these were the easy years: never before or since has energy been so little of a problem. Nuclear power was conceived and born in a world where profits were second-rate issues. Promoting nuclear energy was about cutting-edge technology and staying abreast in a science-based world. It was about visions of all things nuclear, culminating in plans for nuclear-powered airplanes that look like a bad joke nowadays. And it was about the bomb.

In the end, nuclear power became a very complicated way to heat water. For a high-tech project supposed to pave the way to the future, that was a pretty meagre result.

It is important to recall that the utilities – today the embodiment of nuclear power – were initially lukewarm about the new technology. They had good reasons. The economics of nuclear energy was highly uncertain as a result of lack of experience. Entrenched interests supported existing modes of power production. And in the fifties and sixties, there was no urgent power gap waiting to be filled.

But the utilities were negotiating with governments who dreamed about a coming nuclear age. Even more, governments had invested huge sums into nuclear research and development that they were hesitant to write off. That brought the utilities into a favourable position: they did not need reactors, but they knew that the government did. With that, they could ask for generous subsidies and other concessions. And they got them.

Which brings us to the negotiations that led to last week’s decision. For a scholar of nuclear history, they look terribly familiar. A clever strategy would have defined parameters for future energy goals, along with an invitation to submit ideas. It is unlikely that corporations would have come up with nuclear solutions by themselves – way too risky as a business proposition. But the government chose a different strategy. They announced that they wanted to build nuclear reactors. And then they sat down with companies that might fulfil their wish. Little wonder that EDF got such a great deal.

Environmentalists like to talk about nuclear risks, and every update from the Fukushima clean-up makes their case more convincing. But maybe narrow-minded capitalist thinking is just as good as an ally here. If we cannot get nuclear reactors unless we negotiate poorly and dish out huge subsidies, it’s probably bad business.

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October, 2013

Blogger of the Week: Dr Frank Uekoetter

Frank Uekoetter was born in Münster, Germany. He studied history, political science and the social sciences at the universities of Freiburg and Bielefeld in Germany, the Johns Hopkins University in Baltimore, Maryland, and Carnegie Mellon University in Pittsburgh, Pennsylvania, USA. In 1997, he graduated from Bielefeld University. From 1997 to 2001, he was a doctoral student at the graduate school of the Institute for Science and Technology Studies of Bielefeld University. In 2001, he received his Ph.D. from Bielefeld University for his dissertation on the history of air pollution control in Germany and the United States; the University of Pittsburgh Press published a translation in 2009. In 2002, he organized the conference “Nature Protection in Nazi Germany” under the auspices of the German minister for the environment Jürgen Trittin. This work eventually led to the publication of an environmental history of Nazi Germany with Cambridge University Press.

He was a research assistant at the History Department of Bielefeld University from 2003 to 2006 and a Dilthey Fellow with the Research Institute of the Deutsches Museum in Munich. He taught at Munich’s Ludwig-Maximilians-University and was a co-founder of Munich’s Rachel Carson Center for Environment and Society, which he left in 2013 to accept a Readership in Environmental Humanities at the University of Birmingham (UK).

Frank will be posting each day for a week, starting on Monday 28 October.

October, 2013

Reflections on using an interdisciplinary lens

The blog posts this week have explored different aspects of international human rights. My research interests include the United Nations human rights machinery, political processes around human rights and the developments occurring at the international level. Human rights are not static. They evolve as global society changes. The field constantly adapts and responds to new challenges. Understanding the mechanisms and processes involved requires a bridging of the gap between scholars of international law and international relations. International law depends heavily on politics, diplomacy and international relations. Using an interdisciplinary lens to view the UN and international human rights enables a greater understanding of what ought to occur and what actually happens ‘on the ground’.

One main area of my work is on the United Nations Human Rights Council. My book on that body,  The United Nations Human Rights Council: A critique and early assessment,  explores the extent to which the Council is fulfilling its mandate. I use international relations theories to understand the political processes that affect the Council undertaking its duties. It is only through an understanding of the politics that occurs within that body that we can find solutions to enable the Council better to protect and promote human rights.


My second book (to be published in May 2014) is entitled ‘Failing to Protect: The United Nations and Politicisation of Human Rights.’ The UN has three human rights mandates – to develop, promote and protect rights. The book focuses on the protection mandate. It explores how and why the UN fails adequately to protect human rights. While the Organisation does wonderful work in developing and promoting rights, it is the systematic and grave violations that make the headlines; and rightly so. In order to find solutions, there needs to be greater understanding of the problems. Aimed at a non-specialist audience, the book explains the overlap between international law and politics and how that impacts on protecting rights. It demonstrates the need for stronger protection mechanisms and for ways of enforcing human rights.


Sparking conversations and discussions about the UN and human rights is crucial for ensuring that the system continues to be refined and honed in such a way as to afford better protection to individuals. Those conversations ought not to take place solely at the academic level. Nor is it sufficient for them only to take place between scholars of law and political science. Involving policy-makers, activists, the media, the wider public and other interested parties will enable more effective protection of rights. Academic research informs those discussions. My aim to ensure that my research is disseminated to as wide an audience as possible in order to fuel ongoing debates.

Rosa Freedman @GoonerDr

October, 2013


‘Make love not war’ was the slogan of the 60s. Surely one of the most effective ways to save humans is to ensure peace? Indeed, the United Nations primary purpose is to ensure international peace and security. It is at the heart of the modern system of international law and politics. But how does the pursuit of peace map across into international human rights?

In 1976 the Commission on Human Rights passed a resolution stating that there is a right to peace. Two years later the General Assembly with a Declaration on that same topic. In the same year, the United Nations Educational, Scientific & Cultural Organisation declared that there is a right to peace to which each individual is entitled. But simply declaring a right does not mean that it exists.

There has been a growing trend towards viewing peace as a human right. A group of rather disparate and not necessarily connected academics, NGO activists, practitioners, government delegates and UN staff are setting out more and more evidence to place ‘peace’ within the international human rights framework. The reasoning goes that peace impacts upon the attainment and realisation of all other rights. So – the proponents say – if we develop and enshrine a right to peace then it will have a positive impact on the whole system.

Sounds good, doesn’t it? In an ideal world, we would all live in peace and that would help to ensure that our other rights were more easily realised. But that does not mean that the peace has fully entered the international human rights law system. There are no international or regional legal mechanisms that protect an individual’s right to peace. There is no redress or remedy, at those levels, for a violation of the right to peace. But there have been some positive developments in recent years.

The first case on this subject was brought in 2003 before a court in Costa Rica. Luis Roberto Zamora Bolanos successfully sued the Costa Rican government over its support for the invasion of Iraq and over its plans to extract and process nuclear materials. This led to legislation being annulled within that state. The grounds for the case were that the government was violating the right to peace. In 2006, Zamora brought another case challenging the Arms Decree on the grounds that it threatened the right to peace. The court used this case to discuss the ambit of the right to peace, saying it is more than just a duty to avoid war. The court found that there is a positive duty to actively promote peace and justice. This case formally established Costa Rica as the first country to recognise, legally, the right to peace.

The United Nations Human Rights Council and the United Nations General Assembly have continued to discuss and pass resolutions on the right to peace. There is a growing body of evidence from these political bodies that suggests that many countries around the world recognise that there is a right to peace. Many countries, but not all. Almost every country voting against or abstaining on these resolutions are from the Global North. Most countries who take the floor during discussions support the right to peace, again with Western states being the exception. The ideological divide is clear –and that divide is an obstacle to ‘peace’ being enshrined within international human rights law.

There is merit to the argument that international human rights is expanding far beyond traditional notions and that newer rights, like the one to peace, threaten to dilute the system. That area increasingly includes subjects – such as politics, the environment and economics – that are difficult to protect or promote and that might better be dealt with through other frameworks.

But that expansion has occurred because there is a greater understanding of the overlap between different areas. Peace may be a political ideal, but it is also a fundamental tool for realising other human rights. Where peace is undermined, individuals’ rights cannot adequately be implemented or protected. There seems to be increasing awareness of the need to enshrine, promote and protect the right to peace, despite the right pushing against the boundaries of traditional understandings of human rights.

Follow Rosa Freedman on Twitter: @GoonerDr

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October, 2013

The right to adequate housing: the UK and the spare room subsidy

Last month there was great controversy when the UN Special Rapporteur on the Right to Adequate Housing commented on the spare-room subsidy. Raquel Rolnik caused a furore by daring to criticise the UK for human rights violations rather than focusing her efforts on graver situations elsewhere in the world. She commented on the coalition’s policy that is designed to charge council house tenants for supposedly under-occupying homes based on numbers of residents and bedrooms. Ms Rolnik claims that the policy could violate the right to adequate housing, not least owing to the shortage of one and two bedroom council housing. She also noted that the subsidy may impact the realisation of other rights, particularly where people were forced to choose between housing, food and heating.


The UN Special Rapporteur used a human rights lens to view the spare room subsidy. She did not say anything that has not already been discussed in the UK media. Yet Ms Rolnik’s comments hit a raw nerve with the government. Grant Shapps, the Conservative Party Chairman, sent a letter of complaint to the United Nations, demanding an apology and an explanation for her comments. He accused Ms Rolnik of bias and political motives. He questioned why she had visited the UK, accusing her of conducting her fact-finding mission without permission.

In fact, Mr Shapps appears to have been badly briefed or perhaps not briefed at all. UN Special Rapporteurs cannot visit a country without permission. The UK has issued a standing invitation to all UN Special Rapporteurs. Even then, if one wants to visit s/he must liaise with the government before arriving on these shores. Any visit requires a great deal of coordination with the country’s government in order to set up meetings with ministers and opposition party members, national human rights institutions, citizens, and any other actors. It is never the case that a Special Rapporteur just turns up unannounced. Ample opportunities exist for a country either tacitly or expressly to block a visit. Indeed, many countries have blocked visits. Some have simply ignored requests to coordinate visits; others have refused to issue visas; while some states have failed to comply Special Rapporteurs’ terms by blocking access to state and non-state actors.

Ms Rolnik’s visit to the UK, then, was not an intrusion. It was a carefully planned and coordinated visit to which the UK government had consented. So, why was there such uproar?

UN independent experts on human rights are part of a broader mechanism called Special Procedures. The system is crucial for fact-finding, information-sharing, monitoring, reporting and providing recommendations on human rights. Individuals are appointed for fixed terms and given a mandate to examine a specific human rights issue. Mandate holders are independent experts, usually academics or former human rights activists. They undertake their duties part time and are not paid by the UN. They are independent from both the Organisation and its member states.

Some mandates focus on all human rights within one specific country. Others focus on one specific right across the world. Each mandate holder chooses where to conduct visits, of course depending on the consent of the countries concerned. Those visits then lead to reports and recommendations for that country. Mandate holders also produce reports that outline broader issues, best practices, and provide general recommendations. They provide countries with guidance, assistance and concrete steps to follow when implementing human rights.

The UN Secretary-General has described Special Procedures as ‘the crown jewel’ of the UN human rights machinery. Because Special Rapporteurs are independent and expert their reports carry significant weight and are afforded a great deal of respect. Little wonder, then, that a country like the UK would be up-in-arms when criticised by a Special Rapporteur.

The UK is not the first country from the Global North to criticise a Special Rapporteur for reporting on human rights issues within its territory. Canada’s immigration minister, Jason Kenney, suggested that the Special Rapporteur on the Right to Food had wasted UN money by visiting his country in 2012. The US accused the Special Rapporteur on Human Rights and Extreme Poverty of bias and political motives for visiting that country in 2005. Those other Global North states, have voiced concerns about why they have received visits when the experts could have gone to other countries with far more acute problems. On the face of it, that argument has some merit, but scratch below the surface and it does not stand up to scrutiny.

At the heart of international human rights is their universal nature. Rights apply to all individuals regardless of race, religion, nationality, gender, sexuality or any other characteristic. All countries can improve their human rights records. From Sweden to Somalia, from Norway to North Korea, there is a need to protect and promote human rights. If the UN only focused on states with the most acute problems, then individuals in more developed countries would be afforded no protection. And, crucially, if the UN only focused on some states or regions then the legitimacy of the Special Procedures system – based on its universality – would wholly be undermined.

Of course no country likes to be criticised publicly or to have information shared about violations on its soil. But the UK, which has been at the fore of international human rights since its creation, would have done well to remember its obligations and commitments when Ms Rolnik visited its territory.

Follow Rosa Freedman on Twitter: @GoonerDr 

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October, 2013

Is it possible to challenge the UN’s absolute immunity?

Earlier this month, a lawsuit was filed in New York against the United Nations. The lawsuit is being brought on behalf of individuals in Haiti who were affected by a cholera outbreak that began in October 2010. The UN deployed a group of Nepalese troops to Haiti. Those soldiers formed part of an ongoing peacekeeping operation in Haiti. It is well known that Nepal has high incidents of cholera. Despite that knowledge, the UN failed to screen its peacekeepers for cholera prior to them entering Haiti. On 21st October 2010, cholera broke out in Haiti for the first time in 50 years. Epidemiologists have been able to match the exact strain of cholera in Haiti to that found in Nepal. Unusually for the spread of infectious diseases, the cholera outbreak has been proven to be directly attributable to UN peacekeeping troops from Nepal.


Failure to screen the Nepalese troops was not the only negligent or reckless act committed by the UN. Poor waste management at the UN peacekeepers’ camp resulted in infected human faeces being deposited in a tributary that feeds into Haiti’s main river. The Artibonite River is Haiti’s most important and most relied-upon river, with hundreds of thousands of people relying on it for water to drink, to bathe and to wash their clothes. Within the first 30 days of the outbreak, Haitian authorities recorded almost 2,000 deaths from cholera. In July 2011, the epidemic infected at a pace of one person every minute. The impact of the cholera outbreak has been devastating. Three years on from the outbreak, the country is still struggling to rid itself of the disease.

As things currently stand, the UN has repeatedly refused to compensate the victims of the cholera outbreak. Those victims include relatives of the thousands of people who died; the hundreds of thousands of people who were infected by the disease; and the countless individuals whose agricultural livelihoods have been affected by the pollution of the Artibonite River. After years of seeking redress and remedy from the UN, the suit filed last week is a bold and necessary step on behalf of the victims. The case is complicated, not by the facts of what happened but by the legal position about whether or not the UN can be brought before a court.

National courts have long-understood that they cannot hear cases brought against the United Nations. The Organisation has relied upon the doctrine of ‘absolute immunity’. Case law from various courts and jurisdictions shows that the UN’s absolute immunity has been challenged, albeit unsuccessfully on the facts of each case. The basis for those challenges have been that the bar to jurisdiction violates claimants’ rights to access a court and to a remedy. In all of the cases so far, the individuals’ ability to access alternative mechanisms for dispute resolution has been used to demonstrate that their rights have been realised. The difference for the individuals from Haiti is that there is no alternative mechanism for resolving their dispute. This leaves those individuals with their fundamental rights being violated.

Throughout these victims’ struggle to seek justice, the UN has relied upon its absolute immunity from jurisdiction. That immunity is understood to be based on Article 105(1) of the Charter of the United Nations and on Section 2 of the Convention on Privileges and Immunities of the United Nations. However, such immunity violates the fundamental rights of individuals to access a court and to seek a remedy. Therefore, a counter-balance exists through the UN being required to provide alternative mechanisms for resolving disputes. Section 29 of the Convention on Privileges and Immunities of the United Nations and the Model Status of Forces Agreement both mandate that the UN set up local claims boards within any peacekeeping operation. Those claims boards are designed for individuals involved in a dispute with the UN or its staff. They allow individuals to realise their rights to access a court and to seek a remedy despite the UN’s absolute immunity.

Alternative mechanisms for resolving disputes have not helped the individuals affected by the cholera outbreak in Haiti. The UN insists that the cases issued on those victims’ behalf cannot be brought before an alternative dispute resolution mechanism. The Organisation has classified the claims as ‘not receivable’ by the UN’s local claims board. It insists that these are not private law claims but rather ones requiring ‘political’ or ‘policy’ review.  Therefore, the individuals concerned are being denied their fundamental rights to access a court and to seek a remedy.

The UN does not dispute that its peacekeepers brought cholera into Haiti. Nor does it seek to absolve itself of blame for the conditions within the peacekeepers’ camp. The UN is seeking to avoid compensating victims of the cholera outbreak. UN Secretary-General Ban Ki-Moon has pointed to the Organisation’s absolute immunity from jurisdiction as a bar to individuals bringing legal claims against the UN.

By invoking absolute immunity, the UN has either ignored or missed the point that all individuals have rights to access a court and a remedy. The Organisation that created the modern system of international human rights law, and that is tasked with protecting and promoting those rights, is denying fundamental rights to these from Haiti. By failing to provide compensation to the victims of cholera in Haiti, the door has been opened for a successful human rights-based challenge to the UN’s absolute immunity – one that may have far-reaching implications and one that is long overdue. Lawyers acting on behalf of the individuals have repeatedly warned that if the UN continued to refuse to award compensation or to provide access to a claims board then they would bring a human rights-based challenge to the UN’s absolute immunity. The lawsuit that has been filed has made good on that promise.

 Rosa Freedman @GoonerDr Birmingham Law School

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October, 2013

Human rights, like Ronseal, are exactly what they say on the tin…


On 3rd October this year a boat caught fire and capsized. On board were more than 500 Eritrean men, women and children. 155 people survived. While this disaster has grabbed media attention across the world, it is only one of many such stories over recent years. Lampedusa has become the landing point for thousands of migrants seeking to enter Europe. The Italians islanders stand out as compassionate and caring towards the boatloads of new arrivals. They seem to understand that these people arrive on the shores seeking a better life than the ones they left behind. That approach stands in stark contrast with the rhetoric across much of the Global North.

The issue of migrants, particularly irregular migrants, increasingly dominates our newspapers and politics. No one knows whether irregular migration is increasing or decreasing. Unsurprisingly, we have no statistics on the actual numbers of people who cross borders in irregular ways. Yet the prominence of the topic in daily life might make one think that a tidal wave of irregular migrants has arrived in Europe. And that rhetoric increasingly dehumanises irregular migrants. This increased and increasingly-negative attention might be owing to financial pressures – history shows us that with recessions and depressions comes the rise of nationalism and xenophobia. It may be based on security concerns and the global threat of terrorism. Regardless of its basis, the result is a general failure to acknowledge let alone uphold the human rights of migrants.

Human rights, like Ronseal, are exactly what they say on the tin. The rights are held by all individuals by virtue of them being human. A person does not lose his status as a human simply because s/he is an irregular migrant. Crossing a border in contravention of a law does not dehumanise an individual. Yet the total disregard that Global North countries have for the rights of irregular migrants undermines the central notion of human rights.

If we examine the resources devoted to securitising the issue of migration, we can see that significant time and money is used for activities that abuse the human rights of migrants. Detention without charge; lack of access to justice; failure to ensure adequate housing, food and healthcare; failure to ensure that children receive education are just some of the systematic violations that occur across Europe, Australia, and North America. Headline news is made where a migrant dies during deportation, as occurred with Mr Jimmy Mubenga in 2010. Occasionally investigative journalism focuses on Yarls Wood, or other similar detention centres abroad. But the daily systematic violations are swept under the carpet.

Efforts are being made at the international level to protect and promote the human rights of migrants.

In 1990, the General Assembly adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. The central feature of the Convention on Human Rights of Migrants is to protect all migrant workers and their families irrespective of their legal status. 46 countries have ratified the Convention. This falls far below the 120 states ‘for which migration is an important feature, either as origin, transit or destination countries’. None of the states from the West or from the rising global power of BRIC – Brazil, Russia, India and China – have signed or ratified the Convention. Without those heavyweights, politically and economically, the treaty largely has failed to get off the ground. Over 20 years after its creation, the Convention is spluttering along. The countries that most need to be bound to protect the rights of migrants are the ones that are studiously avoiding signing up to its provisions.

States from the Global North are the leaders in the human rights game. They control the money and resources, and therefore hold the power. Typically, they have been at the fore of developing, promoting and protecting human rights. It seems strange, to say the least, that those same countries refuse to ratify the Convention on human rights of migrants. But remember that those countries are the most affected by migration, not just in terms of the numbers of people seeking to enter their territories but also by the political implications of being seen to be ‘soft’ on that issue.

There is a structural deficit of electoral democracies where it comes to migration. Irregular migrants do not have a vote. Politicians in electoral democracies require votes to be re-elected. Focusing efforts on a vulnerable group that do not have the right to vote, and who cannot mobilise to form pressure groups or to place pressure on the government, is political suicide. Politicians know that by speaking out on behalf of migrants, let alone seeking to change the laws on migration, they will place their own careers on the line.

But it is not all doom and gloom. At least these issues are now being discussed. Great efforts have been made by the United Nations Special Rapporteur on the Human Rights of Migrants. Mr Francois Crepeau has sought to focus global attention on Europe and migrants’ rights. He reported on that region last year, with a particular focus on Italy and Greece as the first port of call for many migrants entering Europe from North Africa. Crepeau’s recommendations have been discussed widely at the highest levels. Media attention on Lampedusa and other horrific tragedies helps increase the pressure on Global North countries. It is only when those states start seeing irregular migrants as humans rather than security concerns, protecting their rights will always be the lowest priority and tragedies will continue to occur. 

Dr Rosa Freedman, Birmingham Law School

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