« Older Entries

Legislate First, Define Later

by Sophie Bisping

The views expressed in this blog are my own.

The Global Observatory on Academic Freedom, where I worked for a part of the summer, is hosted by the Central European University in Vienna. Primarily a private research university, the CEU was founded by philanthropist George Soros in 1991 in Budapest, with the mandate to provide high-quality free education in English for students from Eastern Europe and beyond. In 2019, CEU was forced to relocate to Vienna from Budapest after Viktor Orbán’s government passed a bill prohibiting its ability to issue internationally recognized degrees, nicknamed “Lex CEU”. This law and other governmental pressures (such as forbidding the existence of gender studies departments) were taken as direct moves to oust the university.

The move from Budapest to Vienna prompted the creation of the Global Observatory on Academic Freedom. This organisation conducts research not only on the status of academic freedom around the world, but also on different conceptions of this right as contextualised in different jurisdictions. I worked on the creation of a global mapping of regulatory frameworks on academic freedom at the international, regional, national, and intra-national level. This comparative exercise allowed me to gain an understanding of how this right has been conceptualised in legislation in Canada and beyond.

In 2020, LEX CEU was struck down by the European Court of Justice as violating Hungary’s obligations as a member of the WTO, and as infringing the provisions of the Charter of Fundamental Rights of the European Union relating to academic freedom. The judgment relies heavily on trade law, and only slightly on Article 13 of the European Charter which protects academic freedom. This is partly because there is little litigation that uses “academic freedom” specifically, as distinguished from freedom of speech or freedom of conscience. Whether it is in national or regional courts, the concept remains legally polymorphous.

Yet this does not prevent more and more countries from trying to legislate academic freedom, often in reaction to a political discourse. This was seen in Quebec’s recently passed Bill 32, “An Act respecting academic freedom in the university sector”, championed by the right-wing party in government, Coalition Avenir Quebec (CAQ). The bill has been criticised as itself harming academic freedom, as it forces universities to install a watchdog council of sorts, which will report back to the government the number of complaints made concerning academic freedom.

Based on the political debates around it, the law aims to protect the academic community from dangers it harbors within itself. There is a sense that a participatory censorship is threatening some members of the academic community, who are in dire need of help from a benevolent CAQ. But the government is not part of the academic community. Academic freedom is a right vested in a professional community; it is both an individual and collective right, unlike freedom of speech, which is simply an individual right. This is a crucial distinction (as explained here by lawyer Robert Post in the United States’ context) that should be taken into account in the legal definition and reach of this concept. As a collective right, it is also collectively defined by the academic community. Its definition has been evolving, and exploring different perspectives of academic freedom helps to understand why Bill 32 seems so mistaken to many members of the academic community.

Bill 32 relies on the commonly cited definition of  the 1997 UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel. The latter defines academic freedom as the right to freely teach, carry out research, and publish results. The definition also includes the freedom to express one’s opinion about the institution or system in which one works, the freedom from institutional censorship, and the freedom to participate in professional or representative academic bodies. This might be seen as a minimum core understanding of what constitutes academic freedom, but it is only a starting point. Since 1997, many other aspects of the concept have gained traction.

First, perceptions of academic freedom vary depending on what kind of member of the academic community one is. Few people would disagree that students are part of the academic community. Yet their academic freedom is different from professors’: some students have argued that the restraint on the number of admissions constituted a pressure on their freedom to choose what to study. For teaching staff, the increasing precarity of the academic work environment has also become part of the larger conceptualisation of academic freedom: it is questionable if one is really free to do research if employment conditions are so unstable that they must gear all of their research towards what is seen as profitable and immediately applicable.

Definitions of the obligations that come with this right have also been evolving. As a right vested in a professional community, many see academic freedom as having to be supported by the quality of academic work, as defined by peers. Along the same lines, the European Higher Education Area states in its 2020 Ministerial Communiqué that this right is bound to professional and social responsibility, accountability for public funds, and equitable access.

If academic freedom is a collective right, it is important to look at who has access to this group. This community has constituted itself along lines of colonial power that still structure the way we approach knowledge. The movement Decolonize your Curriculum (which started with the 2015 Rhodes Must Fall campaign in Cape Town) is an attempt at creating ruptures in those lines, to works against the invisibilisation of marginalised communities in academia. Increasing their representation in school curricula recognises that a wide variety of actors have always participated in the creation of knowledge, though the credit was most often attributed to people in positions of power. For many, creating equitable access to this community is an integral part of a meaningful protection of academic freedom in society, and thus logically includes working towards epistemic justice. Epistemic injustice denotes precisely the exclusion of certain communities from what is perceived as valuable knowledge production. The bias that many people might have in giving higher value to the opinion of a professor from an American university than from a Nepalese university is an example of epistemic injustice. In Canada, this injustice is often expressed in the lack of consideration given to indigenous ways of knowing.

This is why movements to decolonise curricula, and in some cases create a different pedagogy altogether (see Indigegogy for example) are crucial: the current academic community needs to include previously excluded groups, and to be held accountable to them too when it comes to deciding the obligations that come with the right of academic freedom. If different perspectives are not included in defining what it means to be socially responsible as a researcher, or accountable to public funds as an administor, I doubt that these obligations can be fully understood and fulfilled.

Yet we should not conflate academic freedom with epistemic justice and see the latter as the only obligation members of the academic community have. Different aspects might resonate more or less strongly depending on one’s perspective, and they are all part of the definition, whether it is the independence of institutions from states, the freedom of research, or the importance of creating a secure work environment that is inclusive and resilient to debates.

It is precisely because this concept needs to remain open to a variety of perspectives that legislating it amounts to an over-judicialization of public life. Bill 32 enshrines a definition of academic freedom without understanding the societal phenomenon that needs to be addressed. This seems not to be the fear of censorship so much as the fear of losing a common ground for discussion within the community, thereby losing a common framework to establish the obligations that come with the right of academic freedom. Legislation antagonising the universities from the provincial government is not the solution to protect this common ground.

By contributing research on this concept, its instrumentalisation, and politicisation in different local contexts, the Global Observatory on Academic Freedom participates in preventing the erosion of this common ground. It is from there, in Vienna, that I could reflect upon Bill 32 and wonder how it will shape the community that I am entering as I begin my second year of law school.

Living and Working at a Frontier

The views expressed in this post are my own.

One day, in July, I went to the grocery store and the fresh produce was almost entirely picked over. In the dry foods aisle, the only pasta shape left was macaroni. It reminded me of March 2020 and when I checked the local news, I found out that the empty shelves were indeed caused by supply chain issues but in this case the reason was flooding, not Covid-19. Whitehorse (and, by extension, Yukon as a whole) is supplied by one main trucking route, a two-lane highway that winds its way up to the territory from British Columbia. A section of that road had been washed away, spurring people to rush to the grocery stores.

 

That same week, Yukon was experiencing the peak of its wildfire season, with fifty or so wildfires burning in the territory. The sky was hazy, and you could smell the smoke when the wind picked up in the evenings. One of my coworkers at the Commission pointed out that because of Yukon’s geography and climate, its mountain ranges and sharp seasonal shifts, there can be avalanche and wildfire risks simultaneously in the summer. Climate change’s growing impact on the region will probably only exacerbate Yukon’s dramatic seasons.

 

While the washed-out road was being repaired, the internet was suddenly knocked out across the whole territory. The repair crew had broken a key fiber-optic cable. Yukon, like many regions in Canada, is supplied by a single internet provider. In their efforts to restore the physical supply chain, the repair crew had knocked out its digital counterpart. Debit and credit machines stopped working. I went to the bank to take enough money out to buy lunch and as I was walking in to try the ATM, a bank employee intercepted me, asking how much money I was planning to withdraw. He allowed me to carry on once I had assured him that I was only taking out $20. That day at work, there was an unexpected fire drill, just to add to the commotion.

 

Ask locals about this week and they’ll probably remember it but not as all that exceptional. Apparently, there was a similar week of drama the summer before. And the internet goes down regularly, my coworkers told me. It’s all characteristic of living on the settler-colonial frontier, where the margin is still being actively connected to the centre. When the Rogers Outage impacted large swathes of Canada just a few days later, Yukon was unphased.

 

The legal system I was working within also felt like a frontier. Because Yukon is such a small jurisdiction, its judges hear relatively few cases. The Yukon Supreme Court and Territorial Court have three full-time judges each, and the Court of Appeal for the territory only releases a handful of decisions per year, many of which are criminal appeals. As a result, the territory’s own laws are not interpreted and judicially scrutinized as often as they might be in more heavily populated jurisdictions. Yukon’s population is only around 40 thousand people — just a couple thousand more than McGill’s total student body. In my research memos, I often turned to caselaw from other Canadian jurisdictions, especially BC, since that province’s precedents are generally considered the most persuasive in the territory.

 

Naturally, concepts in Yukon’s Human Rights Act (the “Act”) are explained by case law that did not originate in Yukon itself, such as Supreme Court of Canada jurisprudence like Moore v British Columbia, which lays out the three-step test for establishing discrimination (“ground-area-nexus”) that helps interpret sections 7 and 9 of the Act. Other concepts, however, are vaguer and have not been clarified in case law. One of my memos looked at section 11(2) of the Act, which establishes an exemption that permits individuals to give preference to members of their family but, unlike parallel provisions in other human rights legislation in Canada, does not specify whether this protects nepotism in any potential area of discrimination (public services, employment, union membership, housing, or public contracts) or only in certain types of situations, like renting an apartment to a family member. This raised the question of whether section 11(2) protects, for example, public servants who want to hire family members for government jobs.

 

Human rights legislation across jurisdictions in Canada is relatively similar when it comes to major concepts like the test for discrimination and the protected areas, but the differences are amplified in a place like Yukon. The answer to a legal question may not be as readily available.

International Criminal Justice, what’s it good for?

By Poonam Sandhu

The views expressed in this blog are my own.

This year marked the 20th anniversary of the entry into force of the Rome Statute, the International Criminal Court’s (ICC) founding treaty. The anniversary was celebrated during my time working for Human Rights Watch (HRW), which inspired a different kind of reflection on my part as I learned about International Criminal Law (ICL).

The project of global accountability for the gravest crimes is a tremendous project and a work in progress that must continue in order to promote justice and reconciliation. Working in this field, however, it is hard to not sometimes feel discouraged and disheartened by long delays owing to factors such as outstanding arrest warrants or the ICC’s budgetary constraints.  At the same time, accountability has been unevenly addressed with certain situations being allocated more media attention, and ultimately more resources, while other investigations have been stalled.

The politicization of responses to atrocity crimes and double standards was something that I found frustrating while learning about the international criminal justice regime. For example, the situation in Ukraine was referred to the ICC Prosecutor’s office between March and April 2022 by 43 states parties to the Rome Statute. An investigations was opened almost immediately on March 2, 2022 and shortly after, the ICC deployed its largest ever team of experts (42 investigators) to Ukraine to investigate alleged war crimes. This has been accompanied by various states making donations to the ICC following a call for voluntary contributions by the Court’s Prosecutor. Although these contributions are to be used to support the work of the Office of the Prosecutor across all situations, the messaging around them has often been misleading, with some states linking them to the investigation in Ukraine.[1] Civil society groups vocally denounced this approach. Contrast this with other situations, such as Afghanistan, for example, where a request to open an investigation into alleged war crimes and crimes against humanity committed since 2003 was only made by the ICC Prosecutor in 2017 and the situation has faced various challenges, including strong politicized opposition by the United States, and prolonged delays.

The problem of double standards in international justice is an issue that many civil society organizations, including HRW, have been active in exposing and denouncing. It is not just a matter of principle but also an issue that has serious implications for public confidence in the Rome Statute system and in turn, has implications for victims’ access to justice. It goes without saying that international justice cannot be achieved unless it is evenly applied to all situations and contexts where allegations of serious crimes are raised.

Notwithstanding the issue of double standards, it is important to remember that the Rome Statute system is still relatively new and continues to develop. Many of my colleagues at HRW and other organizations working on international justice emphasized to me that when they started their careers, the concept of ICL did not exist on the scale that it does now; in the last 20 years the justice landscape has radically transformed in a way that they could not have imagined.

The growth of hybrid and domestic accountability mechanisms has been something that I have learned about this summer that has given me renewed hope in the international justice project. One particularly inspiring example was the first trial at the Special Criminal Court in Central African Republic, which I followed closely this summer.

The case concerns three accused who are facing war crimes and crimes against humanity charges in relation to the 2019 massacre of civilians in the villages of Lemouna and Koundjili, Central African Republic. Regardless of the outcome of the forthcoming verdict, the existence of a domestic court to prosecute serious crimes with closer proximity to victims, and its ability to foster trust between the public and state institutions, is an achievement that must not be understated.

This leads me to one of the key takeaways from this summer, which is the fact that ‘international justice’ can be a somewhat misleading term as domestic justice developments are just as important, if not more so, than developments at the international level. Being an effective practitioner in international justice requires a nuanced understanding of domestic judicial systems, capacities, and socio-political and cultural contexts. Working at HRW has solidified my understanding of human rights as a continuum between the domestic and international levels, which is a lesson I will center in my future professional endeavours.

[1] See e.g. German Embassy The Hague, Germany voluntarily contributes one Million Euro to Prosecutor’s Khan’s indispensable effort to fight impunity in #Ukraine and other ICC situations. We need to support the rule of law NOW.” (28 June 28 2022 at 11:08am EST), online: Twitter: <twitter.com/GermanyinNL/status/1541800819355533312>; AP News Wire, “UK to contribute money, experts to ICC’s Ukraine probe” (24 March 2022), online: The Independent <www.independent.co.uk/news/ukraine-ap-icc-dominic-raab-netherlands-b2042911.html>.

Coming Full Circle in Sofia

by Aliya Behar

The views expressed in this piece are my own.

An afternoon in late July, I sat in the company of a Jewish historian and human rights worker on the Etz Hayyim synagogue’s sunny terrasse – the only remnant of the previously booming Jewish life in Chania, Crete. He told the story of his grandfather’s immigration from Moldova to California, describing the shock many Jews felt when given the liberty to no longer have to reside in ghettos, nor face daily persecution. He described, “It felt like a luxury – choosing where you want to live without fearing hatred or violence… That’s when he knew he had to stay.”

Commemorative plaque inside the synagogue

One of the four graves in the synagogue’s backyard

 

 

 

 

 

 

 

 

 

 

 

I applied for the IHRIP program nearly one year ago, without having a clue where I might be placed. The first question on the application package asks, “What does human rights work mean to you?” My response from last year reads, in part, that it is “work for which I feel a personal responsibility to undertake.”

In the weeks leading up to my internship, a few family members approached me. They shared that my grandfather was born in Sofia, having lived the first ten years of his life there before fleeing Bulgaria, along with many of the remaining Bulgarian Jews, in the 40’s. This part of my family history had been, aside from those general facts, quite unknown. I had no real connection to Bulgaria; no one in my family considers themselves as Bulgarian. Had I not been assigned a placement in Sofia, I likely never would have visited.

Upon arrival to Sofia, however, it felt like everyone was in on a secret that I had unknowingly been blind to. My first day in the office, a colleague asked if I had family in Sofia because my name was, apparently, obviously Bulgarian. After my first week, I visited Sofia’s synagogue – the largest Sephardic synagogue in the Balkans, and one of the three largest in Europe. I noticed plaques commemorating religious and community leaders with versions of my family name. To say the absolute least, I was perplexed. I visited the only kosher bakery in the city center, where one of the employees described the frequency of exiled Bulgarian Jews tracing their family histories when visiting. I began feeling an unexpected sense of belonging in Sofia, as I walked into the BCNL headquarters every morning gripping the railings bearing stars of David casted into the metal. I became acutely aware that I was going through my days in a space which once held 50,000 people like myself. Today, only 4% remain.

 

 

Inside the Sofia synagogue

The opposite side of the main hall

 

 

 

 

 

 

 

 

 

 

I began digging deeper into my personal connection with the city. I visited the Sofia city archives and left with an authenticated copy of my grandfather’s birth certificate (in Bulgarian!). I visited where he was born and where he lived – just a fifteen-minute walk from where I was staying. All of this felt like some sort of coincidental investigation unrolling in parallel to my internship.

I spent much of my time with BCNL researching issues of freedom of expression, hate speech, and systemic discrimination in the country. By the end of my stay, I had spoken with experts working with the communities most affected by discrimination, and had drafted a comprehensive report on the Bulgarian hate speech framework. I had learnt about a political sphere riddled with racism, homophobia, and scapegoating, and had monitored a handful of far-right marches. All the while, I pieced together my own family history, one which had been obscured by hatred and extremism.

When I wrote my IHRIP application, I didn’t realize the extent to which my own personal history would overlap and intertwine with the work I’d soon be doing. However, I did, at a surface level, understand the intimate nature of human rights work. I can now fully appreciate how human rights, in its very nature, merges the personal and professional.

A photo exhibit in the Etz Hayyim annex

Sofia Pride beneath the monument to the Soviet army

Global Views from Home: Lessons from a Remote Internship

By Renée Lehman

From submitting an amicus curiae brief to the Inter-American Court of Human Rights (IACtHR), to researching potential courses of action in international cases of arbitrary detention, my summer internship with Avocats sans frontières Canada (ASFC) was filled with tasks that I would never have thought I could carry out from my apartment in Montreal.

Although I did not travel this summer, I definitely had an ‘international’ internship. I had the opportunity to learn from human rights lawyers working all over the world, and not only was it an immense privilege to assist some of them with their projects, but to do so from the comfort and safety of my own home was enlightening in its own ways. 

Completing this internship from Montreal gave me a deep appreciation for the stark contrast between my position of privilege relative to those who are served by international human rights organizations. For example, from the comfort of my kitchen table, I learnt about obstetric violence and human rights abuses occurring during childbirth. I had never even heard of the term ‘obstetric violence.’ While sitting on my balcony, I read detailed accounts of the torture suffered by individuals who have been arbitrarily detained. From my local coffee shop, I compiled a preliminary memo detailing which countries experiencing conflict might be the most receptive to new transitional justice mechanisms. From my living room, I reflected on what it means to be half-Ukrainian as I researched ways to ensure that individuals who are responsible for committing human rights atrocities in Ukraine will face justice.

Working on such projects was an incredible way to learn about international human rights law, humanitarian law, and international criminal law. It also enabled me to contextualize and better understand the long-term legal ramifications of what is ongoing in Ukraine and in other regions experiencing conflict. Especially after completing an undergraduate degree in political science and international relations, gaining this experience on the side of human rights law practitioners has been an unforgettable way to draw connections between academics and reality — and between my peaceful little corner of the world and the darkness that occurs in so many others, both near and far.

What can we learn from protesting refugees? : A UNHCR Tunisia example

The northernmost tip of the African continent, at Cap Angela.

 

“We have had enough,” reads a protester sign in front of the United Nations High Commissioner for Refugees (UNHCR) office in Tunis. A young man who looks to be about 16 years old holds the cardboard sign written in Arabic, chanting in a line with about fifteen other single young men demanding to be resettled in Europe. He wears a t-shirt, jeans, and flip flops. Behind him are tarps flapping in the wind, made of garbage bags covering make-shift shelters held down by rope. We make brief eye contact as sweat pours down his face. I skirt by in my professional attire, making my way to a side street which opens to the backside of the UNHCR building with a view of the Lake of Tunis. The security guards recognize me, open the doors, and I place my backpack on the x-ray machine.

The imposing UNHCR office.

As a Canadian student in her mid-twenties working with the UNHCR protection team in an air-conditioned office, I do not claim to know as much about this struggle as the 16-year-old who walked here through the Sahara Desert from Sudan currently protesting in mid-summer Tunisian heat. Neither do I claim to understand the struggles of the Somalian mother I saw breastfeeding her child in 38°C (100°F) weather, nor that of the Ivorian migrant who joined the protest in an effort to escape the application of a cessation clause from Geneva which would effectively revoke his asylum seeker claim – after four years of waiting for a response. I only offer my insight as a law student and observer with a glimpse on decision-making happening within and around the UNHCR Tunis office this summer.

This post discusses the humanitarian and political considerations interwoven in the asylum seeker protest outside the UNHCR Tunis office from the months of April to July, 2022. While small in scale, the protest is a microcosm for understanding larger sociopolitical constraints facing asylum seekers across North Africa, and is an example of asylum seeker agency in demanding alternatives to our current refugee law paradigm.

Protest Background:

There are two UNHCR offices in Tunisia, one in Zarzis in the South of the country and one in Tunis in the North. Since February of 2022 a group of around 220 asylum seekers and refugees who were living in Zarzis started receiving reduced monthly support payments from the Zarzis office because of UNHCR budget cuts higher up. Considering the Zarzis POCs (“people of concern,” which includes refugees, asylum seekers, returnees, and internally displaced people) receive a slightly higher stipend than those in Tunis, the reduction was felt quite starkly in Zarzis at the time. After unsuccessfully protesting outside of the Zarzis office for two months demanding resettlement, the group of protesters found their way North to Tunis in April. They set up camp right on Rue du Lac Biwa in front of the UNHCR office.

The UNHCR office is in Lac 1, the diplomatic district of Tunis. The protest created shockwaves in terms of political pressure, considering it was just a few streets from The International Organization for Migration (IOM), the European Union, the German and Swedish Embassies, and upper-class hotels. These protesters picked the right place. With the unofficial threat from Tunisian officials to close borders if this situation didn’t come under control soon—which would have been detrimental to vulnerable people entering the country from neighbouring Algeria and Libya—the UNHCR protection team was pressured to come up with a solution fast.

The solution that the team came up with was essentially to create an emergency shelter until these applicants had their applications processed. This was a controversial decision, but I came to realize it was realistically one of the only options that made sense considering the political pressures on all sides. It was controversial because there are already around 6000 recognized refugees in Tunis, with only about 40 places for sheltered accommodation. Why should these newcomers – some of whom had not passed the vulnerability assessment to become refugees – get to skip the line while waiting for their assessment?  On the other hand, how could the UNHCR leave these people outside protesting after four months on the street with health outbreaks and heat waves? The decision was controversial because the shelter project absorbed a huge percentage of the yearly budget, therefore potentially reducing resources for other vulnerable refugees and asylum seekers in Tunisia.

Finger pointing came from all sides. In the eyes of NGOs, the UNHCR wasn’t doing enough : the shelter was far from the central downtown region, was too crowded, and didn’t have fans. How could they not provide fans in 40-degree weather? In the eyes of the UNHCR employees scrambling for resources and not sleeping enough, UNHCR was doing as much as they could considering the budget was constrained, their legal mandate was restricted, and if they started handing out fans here and not in other shelters, then more people would show up and the problem would explode. In fact, after the original protesters were moved to the temporary shelter, new people living in Tunis – including refugees, asylum seekers, and economic migrants – started protesting at the office, too. Bystanders had mixed feelings depending on who they talked to and which stories they heard.

One of the most fascinating aspects of this protest was appreciating the various perspectives involved: the asylum seekers, UNHCR headquarters, UNHCR Tunisia, NGOs speaking to refugees, the municipality, the police, the media. Furthermore, each of these actors can be split up into various organizations, departments, and individuals. Although refugees are often grouped into nationalities for statistical reasons, their stories are wildly different, and generalizations can paint simplistic stories out of complex human lives.

At the “Atelier pour renforcer la protection des enfants migrants en Tunisie” hosted by UNHCR and IOM

Working with the UNHCR this summer was deeply rewarding. From meeting inspiring colleagues, hearing gut-wrenching conundrums about statelessness, drafting legal decisions on cases, doing legal research about cessation clauses, attending conferences about child migrant rights, hosting a meeting between the IOM and UNHCR to address boat arrivals from Libya… and so on, one particularly interesting responsibility vis-a-vis the protest stands out. I wrote a letter on behalf of UNHCR in response to an open-letter from NGOs critiquing the UNHCR for their protest response. This was fascinating because I had only ever worked for NGOs similar to those I was responding to, and if I hadn’t seen the inside look from the UNHCR perspective, I would have most likely jumped on the NGO bandwagon without considering the important points (if I do say so myself!) made in the UNHCR response.

Legal Context:

A bit of legal context clarifies why a protest like this one brings so many humanitarian dilemmas to light. The three most important legal texts concerning the UNHCR are its Statute, the 1951 Refugee Convention, and the 1967 Protocol. Together, these texts (plus regional instruments) comprise the international legal landscape which the UNHCR works from.

The 1950 UNHCR Statute tasks the institution with the responsibility to provide international protection and assist governments in finding permanent solutions for refugees. The 1951 Convention on the Status of Refugees defines the term “refugee,” outlines the rights of the displaced and the legal obligations of States to protect them. Originally meant to address an estimated 1.2 million refugees who were still forcibly displaced following the Second World War, the 1967 Protocol relating to the Status of Refugees removed geographical and temporal restrictions from the 1951 Refugee Convention. Basically, that just means we can use the Convention today.

Baskets in a market.

The terms “refugee” and “asylum seeker” are legal terms which impact what kinds of assistance people are eligible to receive from the UNHCR. According to the 1951 Convention, a refugee is someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion. When a person flees their own country for safety in another country, they are said to be seeking asylum and are known as an asylum-seeker. Asylum seekers apply for refugee status, which is determined by a legal process called refugee status determination, or “RSD”, by which governments or UNHCR determine whether a person seeking international protection is considered a refugee. In Tunisia, UNHCR does RSD because the Tunisian government does not have a system in place, even though they are still considered a “safe country,” by the international community.

As an important side note, both refugees and asylum seekers must be claiming status outside their state of origin. This means that internally displaced persons (IDPs), unlike refugees, are displaced within their own countries. Stateless persons, who may or may not be refugees, are not considered to be nationals by any state, due to lack of registration or arbitrary deprivation of citizenship, for example, which makes accessing services much more difficult. (Think: somebody born in the desert between Libya and Tunisia who doesn’t know which territory they were born on). Finally, a migrant is a person who moves to another country but does not fit into the above categories, often to better their standard of living.

These categories tend to create the impression that people can easily be classified into legal regimes, but in practice, individuals choose to leave their place of residence for multiple, overlapping motivations. The fact the RSD process can be so tedious is evidence that categorizing people into legal categories is not always easy.

One of the legal difficulties of this protest was that the protesters were demanding resettlement. Resettlement is the transfer of refugees from an asylum country to another state, almost wholly dependent on that receiving state’s collaboration in the process. In other words, Canada can put caps on how many resettled refugees it accepts, and can even decide which sending countries it will not consider applications from. UNHCR has to tiptoe between state sovereignty, which is sometimes quite arbitrary, and its own protection mandate when it comes to resettlement. The resettlement process is selective and rigorous.

The fact that 200+ people were demanding resettlement outside of the UNHCR office demonstrates a few things. Firstly, when there is even a tiny hope to get resettled, people will latch onto it. Secondly, there might be misinformation (including between protest leaders and the protesters following their lead) when it comes to understanding resettlement processes. Thirdly, it suggests that the legal conventions we have in place are inadequate. In order to be resettled in Europe, these protesters would first have to be assessed to be refugees, and secondly, they would have to fall into the less than 1% of refugee cases accepted for resettlement from Tunisia. Thousands of people make the dangerous journey across the Mediterranean sea each year because desperation and hope, and no other practical alternatives, drive life-threatening choices. There must be a better way.

The injustices of global governance were at the forefront of my mind throughout my time in Tunisia. Why can Europeans live in North Africa without much fuss, but people who have quite literally walked across the Sahara desert have restricted chances of ever seeing European soil, even as tourists? The fact that 80% of visa applications to France from Tunisia are refused, but the French don’t need visas to go to Tunisia, demonstrates the imbalance in bargaining power when it comes to immigration laws.

Perspectives about the beautiful and extremely dangerous Mediterranean sea depend on the geopolitical perspective one appreciates it.

Humanizing humanitarianism

I learned that there is no “good guy” and no “bad guy” in humanitarian law, as I often prefer to simplify. The UNHCR is mandated to deal with a tiny fraction of people on the move, which is necessary considering the immense work to be done. However, this can also be extremely frustrating considering non-refugees are often afforded less resources because of technicalities beyond their control. Sometimes the line between refugee and asylum seeker is quite thin, despite handbooks detailing the streamlined process. The lack of practical solutions for a large number of people who do not qualify as refugees – and even those who do – demonstrates that the system is in need of revamping. The ongoing protests are a clear indication that things aren’t working.

On World Refugee Day, asylum seekers and refugee families were invited to participate in art workshops.

I’m not claiming to know how to fix it, considering “fix” and “it” are PhD dissertation topics already approached from hundreds of perspectives. This said, my first gut reaction is that humanitarianism must be humanized. By this, I refer to the fact that humanitarian decision-making at the upper levels of policy can dehumanize the very beneficiaries they attempt to be assisting. “Humanizing humanitarianism,” as I call it, might mean stepping back and recognizing all the politics that come into play when it comes to refugee law. Decisions are made about huge swaths of people who are generalized into categories that may not be justified, especially considering geo-political power tilts. After all, the EU funds a large part of the UNHCR Tunis budget, and EU migration policies are some of the least humanizing exercises I’ve heard of. By way of example, the EU provides Tunisia with development funding in order to patrol the seas and ultimately reduce arrivals to Europe.  Problematic? Quite.

Considering asylum seekers as criminal villains dehumanizes them, but so too does considering asylum seekers as rule-following angels. Asylum seekers are human beings, and either of these extremes reduces a practical engagement with their goals and aspirations. While students in international development sometimes put refugees on a moral higher ground than the institutions which make laws regulating them (or at least I used to unintentionally), I realized that this can actually be counter-productive to humanizing those seeking asylum.  I met dozens of resourceful human beings who strategically try to make the most of existing systems, despite the fact that existing systems are sometimes not adequate structures to respond to their needs.

In closing, individuals have every right to aspire for a better life. Protesting outside the UNHCR office in Tunis and demanding change is one strategy employed by asylum seekers to do just that. Whether or not the change they are demanding will ever come to fruition, and whether or not the UNHCR can even respond to such demands considering legal constraints, is yet to be determined. One thing for sure is that taking these protests seriously is key in envisioning solutions to complex problems and being one step closer to humanizing the dehumanized, which is necessary for durable solutions going forward.

North Africa’s colonial borders

by Genny Plumptre

Nearly three months into my internship at the Conseil national des droits de l’Homme (CNDH), I went on a brief trip to Ceuta, an autonomous city on the northernmost tip of Morocco. It was not until discovering the location of my internship in Rabat, Morocco (and spending many a lost study hour catapulting myself around the region on Google-street view) that I learned of Ceuta’s existence. Even from within Morocco, it is accessible only by shared taxi from Tetouan, a city some 50 kilometers away. The experience of crossing the Morocco-Ceuta border led me to reflect, as I often have this summer, on the ways that citizenship regulates access to human rights, including the right to mobility.[1]

Ceuta is one of only two territories on mainland Africa to remain under European governance. Due to its strategic importance as a military base and centre for trade, it was never relinquished by Spain during the period of North African decolonization that began in the 1950s.[2] Arriving at the land border by taxi, visitors are confronted with an immense barbed wire fence that runs along the city periphery, policed by Guardia Civil officers and Moroccan security forces. In recent years, Ceuta’s border––like that of Melilla to the east––has been the scene of violent clashes between state forces and both Moroccan and sub-Saharan migrants seeking refuge in Europe.[3]

Any non-Arabic speaking foreigner travelling to Morocco will quickly come to learn the word marhaba, meaning “welcome.” Indeed, Moroccans are experts at welcoming others into their country, whose economy depends heavily on international tourism––including a large population of Moroccan expats who return to visit their families during the summer months.[4] The ethos of hospitality that underlies interactions between nationals and non-residents comes through in daily gestures of kindness and concern, as when a work colleague whom I had scarcely met took off the necklace she was wearing––typically Moroccan, she explained after I complimented her on it, with a pattern of red and yellow beaded triangles––and insisted that I keep it. In the medina where I lived, it was not long before I felt myself part of a small ecosystem of neighbours and shopkeepers who greeted me each day on my way to and from work.

This culture of welcome finds expression not only in the strength of Morocco’s tourism industry, but also in its national migration policy. In 2013, following years of campaigning by civil society and the CNDH, the King of Morocco, Mohammed VI, announced plans for a series of in-depth reforms aimed at introducing a “humanitarian approach” to migration, consistent with the country’s international commitments, such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and, more recently, the Global Compact for Safe, Orderly, and Regular Migration.[5]  This changed policy orientation stands in stark contrast to the security-oriented migration discourse that predominates in the EU. Although implementation of the 2013-2014 migration policy remains incomplete, limited by other foreign policy objectives and EU pressure to control the border with Europe, it has so far led to the regularization of some 50,000 so-called “irregular” migrants.[6] It is based partly in the recognition that, if in the past Morocco primarily served as a country of transit for migrants, today it is increasingly considered as a country of destination.[7]

Despite Morocco’s historical role as physical, cultural, and political bridge between Europe and Africa, travel to Europe remains out of reach for most Moroccan citizens. The cost, delays, and complications involved in obtaining a Schengen entry visa are a source of frustration for many.[8] Since 2020, Spain has also denied its southern neighbour visa-free access to Ceuta under the pretext of ongoing, pandemic-related mobility restrictions[9]––a situation that one co-worker described as “humiliating.” Describing my “weekend away” to a friend later that week, I felt a certain embarrassment in acknowledging that, although she lives and grew up just an hour’s drive to the south, she could not have joined me on such an impromptu trip.

Ceuta itself is a beautiful and eerie place. To the north, lush cactus-strewn hills sweep into waters of the Mediterranean and the Atlantic; to the south, approaching the border check point, crowded apartment buildings house many of the city’s poorest residents, the majority of whom are Muslim, in the neighbourhood of el Principe.[10] For people on both sides of the border, the barriers to mobility are multiple––not only physical but also legal and economic. Over 65 years after Morocco’s independence, Ceuta is a reminder of the colonial boundaries that continue to sew resentment and racial inequality across Africa and worldwide, and that add to the complexity of governing a region that has long served as a place of convergence between different peoples and cultures.

[1] See Universal Declaration of Human Rights, GA Res 21 (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71, article 13.

[2] See Saïd Saddiki, World of Walls: The Structure, Roles and Effectiveness of Separation Barriers (Cambridge, UK: Open Book Publishers, 2017) at 57–81.

[3] See Samir Bennis, “The reasons behind the Spanish-Moroccan crisis” (25 June 2021), online: FIKRA Forum <washingtoninstitute.org/policy-analysis/reasons-behind-spanish-moroccan-crisis>.

[4] “Morocco” (2022), online: OECDiLibrary <oecd-ilibrary.org/sites/409d3fd2-en/index.html?itemId=/content/component/409d3fd2-en>.

[5] “HM The King Delivers Speech On Occasion of 38 Anniversary of Green March”, 7 November 2013, online: The Kingdom of Morocco <maroc.ma/en/royal-speeches/hm-king-delivers-speech-occasion-38-anniversary-green-march>.

[6] See Anna Jacobs, “Morocco’s Migration Policy: Understanding the Contradiction Between Policy and Reality” (30 June 2019), online: Moroccan Institute for Policy Analysis <mipa.institute/6872>.

[7] Ibid.

[8] See Aurélie Colas, “A System ‘Unworthy of France’: For Moroccans, Obtaining a Visa is an Obstacle Course”, Le Monde (5 June 2022), online: <lemonde.fr/en/international/article/2022/06/05/a-system-unworthy-of-france-for-moroccans-obtaining-a-visa-is-an-obstacle-course_5985793_4.html>.

[9] See Yassine Biyad, “Nearly 11, 000 People Crossed the Borders of Ceuta-Morocco” 20 May 2022, Morocco World News, online: <moroccoworldnews.com/2022/05/349179/nearly-11-000-people-crossed-the-borders-of-ceuta-morocco>.

[10] See Marta Moroto, “The Muslim woman fighting Islamophobia in Spain’s African enclave” (19 June 2022), Middle East Eye, online: <middleeasteye.net/news/muslim-woman-fighting-islamophobia-spain-african-enclave>.

Good Gosh It’s Better Than Frosh: It’s Back to Batoche!

by Eric Epp

Visting Batoche in June was a solitary, reflective experience—no other cars in the parking lot and nobody closer than whoever was mowing the lawn of the church on One Arrow—but whew it was another story at the end of July, because it was finally Back to Batoche and just about everyone who was Métis or had Métis friends or wanted to camp out at Batoche with the Métis was rolling in, setting up, kicking back, and catching up! The line-up of cars stretched down the highway but my grandma’s Camry (and my wristband) demanded the red carpet so I skipped the queue and got wandering.

Four of the big Métis provincial organizations (BC, Alberta, Saskatchewan, and Ontario) had official spaces, but this weekend was a break from politics, and except when fiddlers set up in front of the Métis Nation-Saskatchewan area, the line-ups were for bannock burgers, porta-potties, and the never-ending rotation of bands playing the mainstage. Me, though, I was on a mission—I’d checked the schedule and was ready to finally engage with the core stuff of my legal internship: chuck wagon races! I got to the track and leaned up against the fence next to a backed-up pick-up truck, ready to watch some horses go round.

No flat tires this race!

They were mostly young guys hanging out in the bed of the pick-up, and they knew everyone and everyone knew them. Some were older and had to make a show of maturity to rein in the kids, but the kids didn’t mind because they were all sitting in the same pick-up bed anyways and everyone knew that. People hopped up and hopped down: some entered into the web of relationships seamlessly and others had to test the water; one kid wandered over from the track with a cigarette dangling from his mouth, acting a bit cooler than he was and the older guys had to tease him a bit. A dynamic, self-supporting web of relationships was the law of the truck bed…what a clumsy analogy for Métis law but I mean it! When the Métis of St Laurent assembled in 1873 to hash out some laws (after the horrors of 1869–70 in Red River pushed them west), they met as equals, bound together by real and fictive kinship networks—and when Gabriel Dumont was elected President, this web of relationships was the law that held him accountable, the law that guaranteed individual freedoms, and the law that resolved disputes: relationships were the building block of law, and the Métis web of relationships intersected and interacted with, overlapped with and bled into, all the other human and natural relationships that spread across the plains.

Latitude: north of Saskatoon; longitude: a bit west?

From Batoche it’s about a twenty minute drive south-west to Rosthern, where my parents met when their parents sent them to Rosthern Junior College, arguably the definitive Mennonite high school on the prairies. Duck Lake, site of another 1885 clash, is about a fifteen minute drive north from Rosthern—and if I had driven farther north and west into Saskatchewan, I would have come to  where both my sets of grandparents either grew up or established roots. When my Mennonite relatives went into town they would have rubbed shoulders, well, maybe not rubbed shoulders, and maybe not even exchanged glances with, but certainly encountered the Métis they shared the land with: their relationship with the land undeniably put them in a relationship with the Métis, and with all other peoples sharing the land, even those not starting with M.

I am writing this from McGill’s law library, but even from the position of starting my second year of law school, it’s undeniable that I too, in however small and uncertain a way, am part of the web of relationships that stretches across the plains. Western law rejects and attacks the legal significance of these relationships, but their existence is fact: sometimes tattered, sometimes stretched, sometimes even twisted into nastiness and violence, but always fact and always yearning to be healthy. I hope this tribunal project will help mend at least a few relationships.

Final Thoughts

When I first applied to the International Human Rights Internship Program, I was set on working at an NGO abroad. I had fallen into the trap of believing that the only way I take away something of value from my internship was through field’s work. But, working on Equitas’ Global Rights Connection, an international online human rights training program, quickly proved me wrong. As Coordination assistant, my task included responding to emails directed to our team. As a result, I received many emails from persecuted individuals worldwide asking for help. Teaching human rights in a highly conservative country and being homosexual in a highly religious country were only some of the various reasons why people would email us. Firstly, these emails came as a shock because the authors would be quite graphic in the description of the harm done to them. But, they allowed me to realize that I took living in a relatively liberal country for granted. Being a BIPOC in Canada, I tended to focus on the parts of myself that made me oppressed, but what about the parts that made me privileged? Yes, I am a Black Muslim woman, but I am also part of the upper middle class and I have the privilege of living in a rather progressive country (which still has its shortcomings, of course). I do not have to worry about being persecuted for interning at a human rights organization and I do not have to live a double life or assimilate to hide my identity (I recognize that this is not the reality for all Canadians, as many still must conceal parts of themselves to fit in or avoid discrimination/hate crimes). One thing I took away from my internship was to re-evaluate my place in this world, and I invite everyone who reads this to do the same.

Putting universal human rights standards into practice

by Genny Plumptre

This summer, I worked as a legal intern at the National Human Rights Council of the Kingdom of Morocco (CNDH), a constitutionally mandated, independent, and pluralistic national human rights institution (NHRI) that endeavors to promote and protect human rights and freedoms throughout Morocco. Since its creation in 1990 and subsequent restructuring in 2018, the CNDH has been at the forefront of the country’s human rights movement, helping to push the envelope on issues such as gender equality, the right to health, and the rights of incarcerated persons. In this post, I would like to share some preliminary insights into the role of NHRIs generally––and the CNDH in particular––in the international human rights field.

NHRIs are state-mandated institutions, independent from government, responsible for the protection and promotion human rights at the national level.[1] They serve a range of functions aimed as fostering domestic compliance with universal human rights standards, including handling complaints of alleged rights violations, monitoring the human rights situation within the country, undertaking awareness-raising activities, and issuing recommendations related to national laws, policies, and practices.[2] NHRIs are also accredited by the Global Alliance of National Human Rights Institutions (GANHRI)[3] based on their conformity with the United Nations Paris Principles,[4] a set of international standards to ensure the independence, plurality, and accountability of NHRIs. Through periodic reviews, they receive either an A status (full compliance), B status (partial compliance), or are denied status as an NHRI altogether.[5]

Press conference at the CNDH

It is a mark of the CNDH’s institutional effectiveness that GANHRI has accorded it A status since 2002. Its success in this regard has helped to cement Morocco’s reputation as a force for stability and democratization in the North African region. The CNDH’s President, Amina Bouayach, holds the position of GANHRI Secretary, and is regularly invited by INDH networks in the French- and Arab-speaking worlds, as well as by the Network of African National Human Rights Institutions (NANHRI), to share recommendations and good practices. Further, the broad protection mandate accorded to the CNDH under Law 76.15 (adopted in 2018) signals a renewed commitment on the part of Morocco’s government to human rights norms in the aftermath of the “Years of Lead,” a period from 1956 to 1999 characterized by widespread political repression and state-sponsored violence.[6]

Independence is a thorny question for NHRIs, whose credibility rests not only on the stability of their operations and level of autonomy from government––key ingredients enabling them to comment freely on a range of human rights issues without fear of reprisal––but also on their ability to remain sensitive to context, including the social, political, and cultural realities of daily life in different regions of the country. For the CNDH, this need for circumspection regarding existing societal dynamics means they are careful about how and when to broach different human rights issues. There were times when I found the officialism of the CNDH’s approach frustrating: the tone of its interventions, reports and press statements tends to be expository rather than directly critical, and it is rare to see politically sensitive topics such as the Western Sahara mentioned at all. Some critics have gone as far as to suggest that appointing activists to positions of prominence within the CNDH is a way of neutralizing them.[7] However, others would argue that CNDH’s institutional credibility rests on a certain talent for diplomacy with respect to the public, state bodies, and other national and international actors.

The CNDH’s stand at the 27th edition of the Salon International de l’Édition et du Livre (SIEL 2022)

This diplomatic savvy is helped by the fact that Moroccans are, by and large, multilingual. Apart from Fusha (Modern Standard Arabic) and the local dialect of Darija (Moroccan Arabic), many people also speak, depending on the region, some combination of French, Spanish, English and Amazigh. Translation between these various languages is a constant feature of the CNDH’s work, especially in the Department of Cooperation and International Relations where my internship was based. With its composite identity (with roots in Arab, Amazigh, Jewish, and European culture), strong civil society, and 2011 Constitution that declares the primacy of international law,[8] Morocco is well-placed to act as a regional leader in the human rights field; but this means ensuring that the annual reports, conferences, press releases and other materials produced by the CNDH are accessible to a broad audience.

A misty morning commute to work

In the international human rights architecture, NHRIs have a role to play distinct from that of civil society, political dissidents, and human rights defenders. My short time at the CNDH has allowed me to better understand the importance of collaboration and dialogue among all these various entities and individuals as they work to protect human rights and guard against human rights violations in Morocco and elsewhere.

An evening walk through the neighbourhood of l’Océan

[1] See “About national human rights institutions”, 2022, online: European Network of National Human Rights Institutions <https://ennhri.org/about-nhris/>.

[2] Ibid.

[3] See “Accreditation status as of 13 July 2022,” online (pdf): United Nations Human Rights Office of the High Commissioner <ohchr.org/sites/default/files/Documents/Countries/NHRI/StatusAccreditationChartNHRIs.pdf>.

[4] Principles relating to the Status of National Institutions, GA Res 48/134, UNOHCHR.

[5] See “Accreditation” (2022), online: GANHRI <ganhri.org/accreditation/#:~:text=The%20Paris%20Principles%20require%20NHRIs,and%20engage%20with%20international%20bodies>.

[6] See e.g., Mohamed Khamlichi, « La mémoire et ses questionnements » (2013), online : Conseil national des droits de l’Homme <cndh.org.ma/fr/bulletin-d-information/la-memoire-et-ses-questionnements-par-mohamed-khamlichi>.

[7] Voir Karine Bennafla et Houès Seniguer, « Le Maroc à l’épreuve du printemps arabe : une contestation désamorcée ? » (2011) 29:3 Outre-Terre 143 à la p 155.

[8] Voir Royaume du Maroc, Dahir 1-11-91 du 27 chaabane 1432 (29 juilllet 2011) portant promulgation du texte de la constitution, Préamble, para 4 (international law is accorded primacy within the framework of the Constitution and immutable principles of the Kingdom’s national identity).

« Older Entries
Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.