The Journal of Human Rights and International Law

The Journal Of Human Rights & International Law Issue #003 April 2015

Mass surveillance in the Digital Age • Assessing the Impact of Democracies on Poverty Reduction • Refugee Crisis and Political Crisis Institutional Revision For Peace and Security

The Journal of Human Rights and International Law

A Letter of Thanks Dear readers, writers and editors, At long last, here we are - a printed edition of The Journal of Human Rights and International Law. Now you no longer need to browse the work of fine academics through some computer screen, but in the glory of natural light. Take it to a park, read it on the bus, the possibilities are endless. You are free to enjoy this magnificent journal wherever you go!

But we didn’t stumble to this point by accident. In fact, it has been a long and arduous journey, one only possible with the commitment of this fine team we have. Thanks must be given to Vojtêch Hons, who founded the journal and assembled the team that helped Zoé Pot and myself craft it into physical existence.

So I want to thank you all! Due credit must also be passed onto Josh Williams, who has made this edition look as professional as the content deserves.

And this content certainly deserves the highest quality platform. Indeed, here seems appropriate to thank all of you who submitted an article or essay to us. You are all making a fine addition to the academic community by pushing the boundaries of discussion in your various fields of expertise. I am honestly proud that this Journal is the medium of choice for these fascinating discussion.

I would also just like to remind everyone that this is still really the genesis of the journal. We have progressed considerably since our first edition but, relative to what we plan to achieve, this is only beginning. There is much more to be done with the Journal of Human Rights and International Law. But for the time being, you should browse onward and see what lies within this fine amalgamation of academia and bright ideas.

Sincerely yours,

Dean Forrester Editor-in-Chief

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President: Zoé Pot Content Editors: Selen Akgun

Margritt Clouzeau Atholl Macpherson Tereza Rasochová Maurice Kirschbaum Anisha Hira Dalva Barrère

The Journal of Human Rights and International Law

If You Have Nothing To Hide, Do You Have Nothing To Fear?

Mass surveillance in the Digital Age

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8-12 Freedom of Expression and Access to Information: Institutional Revision For Peace and Security

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Refugee Crisis and Political Crisis: A Comparative study of the effect of Palestinian refugees on Lebanon and Syrian Refugees in Turkey

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Why The Interview Wasn’t Funny: Human Rights in North Korea and the Need to Refocus Our Attention.

The War On Terror: A Study On The Experiences Of Women In Post-War Iraq

Benevolent Autocrats versus Malevolent Democracies, Assessing the Impact of Democracies on Poverty Reduction

Ban the Ban: A Critique of the Reasoning Behind the Decision in S.A.S. v France

25-28 Possession as the Basis of Aboriginal Claims to Ownership of Land

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Commitment and Specialization: The Keys to Revitalizing the European Union’s Eastern Partnership

34-37 What Separates Public Diplomacy from Propaganda?

Disclaimer: This journal was made possibly through the kind donations of King’s College London’s Department of Political Economy. However, the Department would like to stress that any opinions given in this journal do not necessarily reflect those of King’s College London. This is an independent journal and each contributor is solely responsible for the opinions they express.

The Journal of Human Rights and International Law

If You Have Nothing To Hide, Do You Have Nothing To Fear?

Mass surveillance in the digital age T

he UK now ranks alongside China as an endemic surveillance society, complete with televisions that can ‘listen’, search engines that search us, and tracking devices in the form of mobile phones in nearly everyone’s pocket.

Yet this Orwellian surveillance trend has been met with an alarmingly limp reaction from a society caught without consent under the state’s microscopic gaze. Nonetheless, the Investigatory Powers Tribunal declared in February 2015 that GCHQ’s methods breached human rights law and contained illegal elements.1 Indeed new technologies and an explosion in phone and Internet use over the past decade has facilitated new and unexplored capacities for mass surveillance, while the growing threat of terrorism is most often cited to justify it. In our post-9/11 haze of fear and confusion, we have seemingly accepted the exchange of privacy for security, but it is surely worth asking: has state surveillance gone too far?

And what danger, if any, does it pose to our civil liberties and even to the future of democracy itself?

‘If you have nothing to hide, you have nothing to fear’ is a convenient phrase reeled out to justify invasive surveillance.

The problem lies in the tacit assumption that only criminals desire privacy when, in reality, whilst you may have nothing to hide, many of us may still be compromised by disclosure. Look at, for example, dissident refugees, estranged wives of abusive partners, LGBT people who have not disclosed their sexual orientation or gender identity, employees secretly looking for new work… the list goes on. We routinely close the door when we go to the bathroom or draw the curtains for personal privacy, but these acts are not indicators of criminal behaviour.

Sophia Turner Sophia is a third year History student at King’s College London. She is also the cofounder of a social enterprise which hosts a smartphone film competition called ‘Eye Want Change’.

prominent human rights organizations.3 These revelations suggest that intelligence agencies may be interested in more than preventing terrorist attacks, after all. David Cameron’s renewed calls for widening surveillance powers in the wake of the Charlie Hebdo shootings, specifically his attack on encryption, is also problematic. Cameron has overlooked the irony that encryption protects us against the very people that he claimed in his next breath to be saving us from. This supports Noam Choamsky’s notion that establishment agencies are more interested in the security and survival of themselves and elites than they are in that of society at large.4 In an attempt at damage control after the Snowden revelations, the NSA claimed to collect Internet traffic equivalent only to

“The problem lies in the tacit assumption that only criminals desire privacy when, in reality, whilst you may have nothing to hide, many of us may still be compromised by disclosure”

In August 2013, Barack Obama reassured Americans that the NSA ‘don’t have an interest in doing anything other than making sure that…we can prevent a terrorist attack,’ 2 yet Edward Snowden’s leaked documents soon proved that they, as well as GCHQ, track citizens who are not involved in any criminal activity, including EU members, the UN and staff of

‘a dime in a basketball court,’5 but this analogy belittles its real breadth. GCHQ’s lawyers said it would be impossible to list the total number of people targeted by Tempora (the codeword for their formerly secret computer system) because ‘this would be an infinite list which we couldn’t manage.’ 6 GCHQ’s two main programs aimed at collecting data – Mastering the Internet

www.theguardian.com/uk-news/2015/feb/06/gchq-mass-internetsurveillance-unlawful-court-nsa, accessed 1 March 2015.

2 Quoted in D. Wright & R. Kreissl (eds.), Surveillance in Europe (London: 2014), 7.

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www.theguardian.com/world/2014/apr/08/edwards-snowden-us-governmentspied-human-rights-workers, accessed 1 March 2015.

4 www.salon.com/2013/12/29/chomsky_governments_are_power_systems_ trying_to_sustain_power, accessed 19 February 2015.

The Journal of Human Rights and International Law

Source: National Security Agency.

and Global Telecoms Exploitation – expose the breadth of their ambition with their names alone. GCHQ’s legal justification for all of this rests on the Regulation of Investigatory Powers Act. This passed in 2000, well before big data and massive Internet surveillance had even become possible.

Deeply unsettling is the central role played by Internet giants – including Google, Microsoft, YouTube and Apple – in this state surveillance operation. Commercial surveillance relies on copyright laws and privacy policies, unread by most, to obtain consent to collect personal data. This data is then shared with government agencies which could not legally gather the information themselves. In this way, social networking platforms, where we each willingly share (sometimes exceedingly) personal details with ‘friends’, are in themselves hugely important surveillance tools applied on a staggering scale: there are currently over 1.39 billion active Facebook users7. It seems that legal and civil rights have not evolved fast enough to cater for the drastic changes wrought by the digital age.

www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded, accessed 1 March 2015.

6 www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa, accessed 18 February 2015.

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In a discussion of mass surveillance, its effectiveness in the search for violent radicals should also be analysed. Indeed, the ‘needle in a haystack’ analogy is repeatedly used to legitimize mass, rather than targeted, surveillance but this dragnet technique is arguably unsuited to preventing terrorist attacks. Not only does it wastes resources in the pursuit of huge numbers of false leads, but Mohammed Emwazi (‘Jihadi John’), as well as Lee Rigby’s killers, the Paris shooters and the man behind the Sydney hostage siege, were all known to intelligence agencies but, crucially, were not flagged or prioritised. Even the Deputy Director of the NSA, John Inglis, conceded that at most one terrorist attack might have been derailed by the NSA’s staggering collection of all domestic phone data.8 Beyond the privacy concerns, we as a society are yet to fully consider the impact that these growing surveillance powers might have on our future democracy and governance. Not only is privacy a prerequisite to the exercise of individual freedom, but the right to dissent is crucial to any viable notion of a healthy democracy. Endemic spying, however, drives this into hiding.

www.bbc.co.uk/news/business-31031650, accessed 16 February 2015. www.theguardian.com/world/interactive/2013/nov/01/snowden-nsa-files-surveillance-revelations-decoded#section/2, accessed 1 March 2015.

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Source: Spencer E Holtaway This is illustrated by the state suffocation of prodemocracy Occupy protests, which were heavily targeted by intelligence agencies that used protesters’ online presence to identify them and even preempt demonstrations. This suppression of dissent and disorder may be concealed under a veil of rampedup rhetoric and fearmongering but, as well as waging war on terrorists, has the state waged war on dissent?

Living under the incessant gaze of the government can lead to long-lasting social harm as it diminishes the willingness to speak, or even think, freely. Nonetheless, these gradual changes have prompted a resigned acceptance that even the most intrusive

“It seems that legal and civil rights have not evolved fast enough to cater for the drastic changes wrought by the digital age.” surveillance can, and should, be tolerated. Jeremy Bentham’s concept of the Panopticon – a prison architecture which induces a permanent visibility of inmates in order to ensure power – can be viewed as a metaphor for the limitless technological resources of the state. But Michael Foucault’s elaboration of the concept in Discipline and Punish, in which he discusses how power and knowledge imply one another, reflects it even more eerily: ‘Knowledge, once used to regulate the conduct of others, entails constraint, regulation and the disciplining of practice’ because, ‘he who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power’.9 In this sense, conformist behaviour is achieved not through relentless and total surveillance, but by a panoptic discipline which induces a population to conform by the internalization of this reality. As such, Foucault’s Panopticon metaphor offers a viable, if perturbing, explanation of the somewhat passive reaction to the state surveillance powers, which have grown to be trivialized and legitimized in our culture.

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M. Foucault, Discipline and Punish (New York: 1995), pp. 202-3.

Perhaps we can be forgiven for sleepwalking into a culture of surveillance. After all, the British government continues to neither confirm nor deny the essential facts and, worse, the Director of National Intelligence in the U.S. lied directly to the Senate Committee of Homeland Security about its surveillance powers in March 2013. This is being conducted without specific public consent, or even knowledge. Instead we are expected to accept that privacy is reserved exclusively for the very people who take it from us. Cabinet files remain locked or ‘missing’ in the child sex abuse scandal, out-of-court legal settlements are regularly dealt, and secret courts are set up to investigate allegations of torture by the British state. In the face of covert bureaucracy, secret courts and total surveillance, it seems that Kafka’s nightmare is slowly becoming real.

I may have nothing to hide, yet there is still plenty to fear.

The Journal of Human Rights and International Law

Benevolent Autocrats versus Malevolent Democracies Assessing the Impact of Democracies on Poverty Reduction Antonia Jülich

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he relationship between democracy and prosperity has been subject of long-lasting academic debate. The notion of “all good things go together” underpinned international development efforts to reduce poverty during the last two decades. However, this has been increasingly challenged by China´s success in lifting 680 million people out of poverty between 1981 and 2010 reviving the contentious concept of benevolent autocrats. Why aren’t democracies better in reducing poverty, and why do they not empower the poor to demand their rights?

Amartya Sen´s defence of the pre-eminence of democracy in meeting individual´s economic needs seems at a first glance to be supported by empirical cross-country evidence confirming that democracy is associated with higher relative spending on social sectors (Nelson 2007: 81). Yet, statistical findings – suggesting that democracies fail to exhibit better outcomes in terms of poverty reduction than nondemocratic regimes (Ross 2006) – appear consistent with many cases. For instance, India is the largest democracy but also home to one-third of the world´s poor.

The diverging experiences in poverty reduction under varying political regimes among countries give rise to an academic debate which moves beyond the formal institutional setup as the determinant of socio-economic outcomes. Accordingly, this essay argues that although theory provides causal linkages between democracy and poverty reduction – as will be shown in the first part – the role of informal institutions has great explanatory power for understanding why many democracies do not live up to the expectations in terms of poverty reduction, as will be demonstrated in the second part. Finally, the constraints and opportunities of the poor to demand their rights in a democratic context will be discussed.

Democracy - A mechanical device for poverty reduction?

Democracies are assumed to have inherent mechanisms which bring the interests of the majority of the people on the political agenda. Since the poor represent a high proportion of the population in most developing countries, their interests are expected to be of great interest to the rulers. The possibility

Antonia obtained a B.A. in Social Science from Humboldt University to Berlin. Currently, she is doing a MSc. in Development Studies at the LSE.

Christoph Winter Christoph studied Law at Humboldt University to Berlin including one year exchange programs at the University of Sydney and at King’s College London.

to exert regularly pressure from below is associated with the provision of more public goods, income redistribution and overall improvement of the poor´s welfare.

According to Amartya Sen, who was awarded the Nobel Memorial Prize in Economic Sciences in 1998 for his work in welfare economics, there are strong interconnections between political freedoms and economic needs in both instrumental and constructive terms (1999: 148). More precisely, the need of political support to stay in power – as a constitutive feature of democracies – provides incentives to the rulers to enhance the social response to people´s economic needs. Voting, protesting, and criticizing are means to make actively use of one´s political rights in order to put pressure on the government to remedy shortcomings. Furthermore, the freedom of expression and discussion is pivotal to the process of understanding and conceptualizing economic needs themselves facilitated by a free flow of information (ibid.).

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The Journal of Human Rights and International Law The role of informal institutions

US President Barack Obama during a meeting with Chinese President Xi Jinping. AP Photo/Pablo Martinez Monsivais

Drawing on the instrumental role of civil rights, the median voter hypothesis states that in a majority rule voting system the outcome will represent the preferences of the median voter.

Applied to developing countries, where the income of the median voter is below the average income, higher spending on social services which target the poor could be expected. Corresponding to this assumption, promises of extended health and education programmes amongst others is part of many election campaigns to seek wider political support as has been seen for instance in Malawi (1994), Uganda (1996), Tanzania (2001), and Kenya (2003) where free and universal primary school enrollment was promised (Stasavage 2004).

However, given the situation in many low-income countries pertaining to the social service provision, the median voter theorem does not seem applicable (Keefer and Khemani 2005: 2).

In fact, unlike the exceptional achievements in poverty reduction of East Asian countries as China, Taiwan, South Korea, and Singapore, developing countries that experienced democratic transitions have not produced comparable extraordinary success (Varshney 2000: 728). This is in line with Ross´ (2006) evidence that albeit democracies dedicate a higher amount of their budget on education and health than nondemocracies, the middle- and upper-income groups benefit from these spending instead of those in need. While he refers to higher infant mortality rates five years after the transition to democracy than five years before democratization, it should be taken into consideration that the instrumental and constructive role of democracy might take more time to unfold its positive impact.

Nevertheless, the question arising is this: why do democracies in many developing countries fail to live up to the expectations and to deliver those results in poverty reduction of which they are theoretically capable of?

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Some theoretical explanations locate the root for the deficient provision or mistargeting of welfare schemes in democratic regimes in characteristics of the poor themselves. Some point to a lack of participation in politics, while others refer to collective action problems, and still others assume that the poor vote on noneconomic grounds. Although these ideas keep coming up in the public debate, evidence suggests otherwise. Firstly, not only remarkable historical events – as the rejection by the Indian electorate of the “emergency” proclaimed by Indira Ghandi in the 1970s which implied the suppression of basic political rights – but also disaggregated data indicates the involvement of the poor in political decision-making. According to Yadav (2000), the poor in India have tended to have higher voter turn-outs than the middle and upper classes. The same applies to villages in comparison to cities as well as lower in contrast to higher castes.

Secondly, the poor are a heterogeneous group with no congruent class interest in addition to multiple individual identities that each one of us has. On the one hand, this makes a class mobilization difficult, and on the other hand, it provides different rationales for electoral behaviour. But these problems affect other societal groups equally and cannot be attibuted solely to the poor.

Keefer and Khemani (2005) provide an alternative explanation of why the needs of the poor are not targeted effectively focusing on the agency of politicians. Three market imperfections, which are 1) a lack of information among voters about the performance of politicians, 2) social fragmentation among voters manifested as identity-based voting, and 3) lack of credibility of political promises to citizens, set incentives for the government to focus on narrow targetable and visible goods instead of on broad-based social service provision. This affects particularly public services related to health and education which are most significant to the poor (ibid.). Difficulties in evaluating the quality and efficiency of services in those areas and in attributing them to particular policies implemented by a certain politician inhibit the ability to make credible promises. Consequently, direct targets, such as creating employment opportunities or building infrastructure, are easier to verify than the quality or attendance of teachers for instance. But even so – especially in young democracies where politicians and parties have not yet developed reputations based on their performance respective to pre-election promises – prospects of targetable goods can only be credible when made to voters with whom a politician has built a personal reputation (ibid.: 12). Therefore, this pattern of social welfare provision is prevalent in clientelistic governments where relationships are based on patron-client hierarchies. This is a common feature of developing countries. Selective public goods are only given by the patron to the client in exchange for political support or other kinds of services.

The Journal of Human Rights and International Law The introduction of Chavez´s misiones in 2003 – a populist social programme of anti-poverty initiatives focused on literacy, free medical coverage and provision of affordable food funded by the state´s oil revenues – illustrates how targetable goods, as the building of hospitals or cash transfers, were distributed along clientelistic networks. In this way, Chavez created new constituencies within low-income groups particularly responsive to these programmes (Penfold-Becerra 2007). That the missions formed the cornerstone of Chavez´s electoral campaign when he faced increasing competition from the opposition is in line with Green´s (2011) argument. According to him, patronage variation in terms of geographical distribution and visibility of the goods can be explained by the nature of political threats to politicians. “That the nature of patronage allocation can have little to do with regime type” (ibid: 434) lays emphasis on the importance of informal institutions. Those also appear to be of great significance when looking at social reforms in Brazil.

According to Hunter and Borges Sugiyama, social sector reforms are no “quality-enhancing reforms”, but mostly “access-reforms” due to well-organized segments of society having an interest in hindering universal redistributive reforms that bear the potential of changing power relations and equitable outcomes in the long run (2009: 29). Therefore, the access of the poor to education, health care and pensions is enhanced, yet, no structural transformation enabling social up-ward mobility took place.

This relates to the work of Khan about the impact of political settlements which is understood as “a combination of power and institutions that is mutually compatible and also sustainable in terms of economic and political viability” (2010: 4). The definition highlights the combination of formal institutions and informal networks, which increases political stability by including powerful societal groups in the distribution of benefits within the institutional arrangements. Consequently, social sector reforms to reduce poverty are likely to have distributive implications that, depending on the political settlement, some influential groups may successfully resist, thereby inhibiting the beneficial mechanisms of democracy.

Empowering the Poor - The importance of competition Social movements and mass protests, as repeatedly seen in recent years in India, to protest against corruption, better health, education and safety for women, are exemplary for the effort made to demand individual rights. In contrast to authoritarian regimes, this is facilitated in a democratic context where coordination goods – as access to higher education, freedom of press and speech, or the right to demonstrate peacefully – are available (Bueno de Mesquita and Downs 2005). Yet, given a lack of vigorous and dynamic multiparty politics in most developing countries, the opportunities that a democratic regime provides to

empower the poor are limited (Sen 1999: 156). This is exacerbated by informal institutions that have a detrimental impact on social welfare provision by making it subject to political games between elites. Since access to goods mainly depends on relationships with unelected patrons, social services for the poor become depoliticised. Therefore, short-term attempts to implement effective pro-poor policies need to alter clientelistic networks.

The undermining of respective institutional mechanisms create barriers to the poor to demand their rights effectively. Regarding policy implications, Keefer and Khemani point to the importance of increased information about political responsibilities via decentralization (2005: 22). While informed voters might be a necessary condition, availability of information is not a sufficient condition in the context of patron-client relationships.

Information needs to be combined with alternative options for action that change existing power relations. According to Shami (2010), this might be achieved through connectivity. A motorway may break isolation by providing exit options to the clients in terms of information or employment amongst others.

In this way, the client´s bargaining power towards the patron might be raised (ibid.). As political competition increases, so does the pressure for redistribution since competition alters incentive structures and power dynamics. Consequently, in the long-term, competitive elections within a vivid democracy that allows unfolding its instrumental and constructive effects are needed. In the meanwhile, measure to increase the bargaining power might improve the poor´s wellbeing providing them with the leverage to demand the social goods they are entitled to.

Conclusion In sum, this paper has examined the theoretical opportunities and actual limits of democracy in reducing poverty and empowering the poor to demand their rights. It has been shown that in-built mechanisms of democratic regimes, conceptualized

by Sen as a democracy´s instrumental and constructive role, suggest that governments are responsive to the poor since they present a numerically powerful constituency in developing countries. However, the East Asian experience in addition to the evidence provided by Ross (2006), for instance challenge the applicability of those theoretical foundations and put into question the positive relationship between democracy and enhancement of human wellbeing. Considering the importance of informal institutions, and the role of clientelism in particular, sheds light on understanding how networks of patron-client relationships undermine politicians’ incentive to be accountable and responsive to the poor. Furthermore, the poor´s ability to demand their entitlements is significantly constrained due to the imbalance of power within these hierarchies, which might be mitigated through increased competition.

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The Journal of Human Rights and International Law The role of informal institutions is particularly relevant when talking about developing countries as processes of democratization might not yet have translated into an incorporation of democratic values within social relationships.

In this regard, Sen highlights that “while we must acknowledge the importance of democratic institutions, they cannot be viewed as mechanical devices for development” (1999: 158). Therefore, debating the impact of democracy on poverty reduction in the context of developing and mostly young democracies should take into account the political, social and economic processes that take place behind the formal institutional setup. It should also be borne in mind that although the story of benevolent

autocrats remains popular despite only little theory and evidence supporting it (Easterly 2011), most authoritarian countries in Sub-Saharan Africa failed miserably in attacking poverty.

“Democracies may not be necessarily pro-poor, but authoritarian systems can be viciously anti-poor. To repeat, democratic attacks on poverty have simply been slow but steady” (Varshney 2000: 729). Moreover, achievements in poverty reduction under non-democratic regimes as China must be weighed against the serious political costs its population has to pay. Consequently, the normative dimension of democracy as an end in itself should not be forgotten in this debate.

Bibliography: Bueno de Mesquita, Bruce; Downs, George W. 2005: Development and Democracy. Foreign Affairs Vol. 84(5), pp.

77-86

Nelson, Joan M. 2007: Elections, Democracy and Social Services. Studies in Comparative International Development Vol. 41(4), pp. 79-97

Easterly, William 2011: Benevolent Autocrats. New Yorck University.

Ross, Michael 2006: Is Democracy Good for the Poor?

American Journal of Political Science Vol. 50(4), 860-874 Sen, Amartya 1999: Development As Freedom. Oxford: Oxford University Press

Green, Elliott 2011: Patronage as Institutional Choice: Evidence from Rwanda and Uganda. Comparative Politics Vol. 43(4), pp.

421-438 Hunter, Wendy; Borges Sugiyama, Natasha 2009: Democracy and Social Policy in Brazil: Advancing Basic Needs, Preserving Privileged Interests. Latin American Politics and Society Vol. 51(2), pp. 29-58 Khan, Mushtaq H. 2010: Political Settlements and the Governance of Growth-Enhancing Institutions. URL: http:// eprints.soas.ac.uk/9968/1/Political_Settlements_internet.pdf [Accessed: February 16, 2015] Keefer, Philip; Khemani, Stuti 2005: Democracy, Public Expenditures and the Poor: Understanding Political Incentives for Providing Public Services. World Bank Economic Observer Vol. 20(1), pp 1-27

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Shami, Mavish 2010: The Impact of Market Exposure on Public Goods Provision. Working Paper.

Stasavage, David 2005: Democracy and Education Spending in Africa. American Journal of Political Science Vol. 49(2), pp.34358 Penfold-Becerra, Michael 2007: Clientelism and Social Funds: Evidence from Chavez’s Misiones. Latin American Politics and Society Vol. 49(4), pp. 63-84 Varshney, Ashutosh 2000: Why Have Poor Democracies Not Eliminated Poverty? Asian Survey Vol. 40(5), pp. 718-736 Yadav, Yogendra 2000: Understanding the Second Democratic Upsurge. In: Transforming In- dia, eds. Francine Frankel et al.

Delhi: Oxford University Press, pp. 120-45

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Refugee Crisis and Political Crisis A Comparative study of the effect of Palestinian refugees on Lebanon and Syrian Refugees in Turkey.

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s will be seen in this approach to the refugee crisis of our lifetime, lessons can be learnt from history so that the lives of refugees, and the political situation of host countries is not inevitably linked to crisis. However as it stands this link is the running theme highlighted by this article. The connection between presence of refugees and political incongruity within territories is real. By focusing on the presence of Palestinian refugees in Lebanon, a structure for improvement can be made.

The comparison will then look at the presence of Syrian refugees within Turkey since the Syrian conflict began in 2011. This article will highlight the violations of human rights and see how this inevitably links to political crisis. By indicating the direct point of fault in the denial of human rights, specific solutions can be targeted. The purpose of this article is to raise questions and allow for a different perspective of looking at refugee studies in a framework that incorporates both the humanitarian aspect as well as political, social and cultural views.

The first point to draw upon is the question of discrimination against refugees based on their ethnicity and religion. This comes under Article 7 of the UN Universal Declaration of Human Rights illustrating the neglect of international code in terms of the treatment of refugees. Discrimination in Lebanon is highlighted by the cultural segregation of Palestinians from Lebanese. The make-up of Lebanon’s complex demographics and political structure relies on the maintenance of a status quo of majority Christian settlers. Historically, this is due to the 1932 Lebanese census which determined Christians as the predominant ethnic group in Lebanon and lead to the 1943 National Pact which issued political representation in an ethnic framework. The National Pact is essential to understanding discrimination and opinions towards the Palestinians as it highlights why ethnicity is so crucial in the Lebanese society. According to the Pact, among other outlines, Parliament members are always in a ratio of 6:5 in favour of Christians to Muslims. The influx of Palestinian, mostly Sunni Muslims, threatens this ratio and brings in to question the demographic, and therefore political, make-up of Lebanon. As such a small country the now 400,000 refugees form an enormous impact on the way their society is formed. The fear of this change generally drives opinion against the Palestinians.

Lucienne Moloney-Geany Lucienne Moloney-Geany is a first year undergraduate studying History at King’s with a specific interest in the Middle East.

Such discrimination due to ethnicity can be blatantly seen in how Lebanon settled almost all the Christian refugees from Palestine, but during the 1980s settled a mere 3000 of the hundreds of thousands of predominantly Muslim refugees within Lebanon.

Although approximately 60,000 refugees were naturalised in the 1994 decree, this has been limited since. The fragile sectarian mosaic of Lebanon is unlike many other Arab states, and their treatment of refugees is similarly different. For instance, in Jordan, Palestinian refugees make up 65% of the overall population yet

“In fact the clashes of camps and the huge array of different militia in the Lebanese Civil War can be seen now to have stemmed from the circumstances created by lack of employment or opportunities within the camps themselves.”

95% of these refugees have been naturalised, showing signs of an inclusive society. Of all the States housing Palestinian refugees, Lebanon has the highest proportion living in camps at 55%, reflecting isolation and segregation of refugee camps.

The political crisis this creates is the general fear of Palestinian refugees within Lebanon, illustrated by the constant decrees to control their perceived threat, which then polarises opinion within Lebanon. In an opinion poll 70% of Lebanese civilians claimed they were “unfavourable”1 towards Palestinian refugees.

The concept of fear in the region leads to destabilisation.

Haddad, Simon, ‘Sectarian Attidtudes as a Function of the Palestinian Presence in Lebanon, Arab Studies Quarterly, June 2000 1

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Refugee camp in Turkey for Syrians In Turkey a similar trend of demographic change leading to discrimination can be seen when focusing on the border provinces, for example Haytay, Gaziantep and Mardin. In these provinces the percentage of the population that are refugees ranges between 6% and 10.5%. In one example the demographics have been so transformed that prior to 2011, in the border province of Kilis, the ethnic Arab population was less than 1%.

Due to the influx of refugees it has now increased to 59%2 , now causing a source of discontent in Kilis. For example, the province of Hatay the Arab population is majority Alawite Muslims (the same branch of Islam as President al-Assad). Generally Alawites are pro-regime in Syria, yet many Sunni and anti-regime rebels are also being housed within the same province. Such political factors, paired with ethnic animosity is a potential political crisis in the making. Indeed Soner Cagaptay states “If Hatley Alawites rallied more forcefully against the governments Syria policy, the Republican Peoples Party and Turkish Alevis would most certainly follow”3 . The evidence of a formula for mobilisation against the refugees is strong enough to generate advice for the protection against ethnic discrimination of the refugees in

the region. The inevitability of a political crisis is illustrated by research by Cagaptay between 2011 and June 2013 as “at least thirty demonstrations have taken place in Hatay, all against the AKP government”4 . Furthermore during the Gezi Park protests and the subsequent demonstrations across the whole of Turkey in total six were killed, and they were all Alevis or Alawites5 .

This evidence for ethnic regional violence and political dispute cannot go unnoticed or unaddressed.

Soner Cagaptay, ‘The Imapct of Syria’s Refugees on Southern Turkey’ The Washington Institute for Near East Policy, July 2014 3 Ibid 19 4 Ibid 5 Ibid 6 http://www.un.org/en/documents/udhr/

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The main difference between the Lebanon and Turkey examples lies in how the government is reacting to discrimination.

Whereas it can be argued Lebanon was conforming to ethnic discrimination; Turkey’s government seems to be resisting by their unchanging policy to refugees despite much pressure. Yet it is unclear how this resistance at the top level of society is going to aid refugees in the fragile border provinces on the ground.

Unfortunately in a region where political beliefs and religious beliefs are so intrinsically linked it is hard to find a solution when political differences and religious or ethnic differences are so tied up. Yet it is clear to see how refugee crisis and political crisis in Simon Haddad, ‘Palestinian predicament’ Middle East Quarterly Roger Zetter, ‘The Syrian displacement crisis and a Regional Development and Protection Programme: Mapping and meta-analysis of existing studies of costs, impacts and protection’.

9 English al-Akhbar.com 8

The Journal of Human Rights and International Law terms of their link with identity are so reflective of one another.

The second point of analysis is that of the denial of Article 23 and 17.1 of the UN Universal Declaration of Human Rights6 surrounding the ability to work or own property respectively. In Lebanon this denial of the right to work or be supported through social security measures is seen universally across all camps and in the refugees living outside of the camps. Palestinians are denied the right to work in 72 professions especially in the domain of medicine or law. Indeed between 1982 and 1992 no work permits were given to Palestinians. The neglect in attempting to incorporate the refugees into an economic structure is detrimental to Lebanon politically and economically.

In examining why such a restriction exists, is obvious that fear of the consequences plays a role in determining policy. As Haddad says there was a consensus that “segregating Palestinians would facilitate normalisation of post-war Lebanon with nation health restored through the isolation of an infectious disease”7. Short term economic impacts of large waves of refugees, in general terms, include large scale unemployment; competition created by a large workforce willing to work for little wages; general drop in wages; and the rising price of food and goods due to larger demand8 . However the economic problem of refugees in Lebanon cannot be seen as short term any longer, after 67 years the economic impact would be stabilised if the issue were to be addressed. In fact the problem no longer exists at an economic level, but has been politicised into crisis.

In general, refugee studies identify the children of camps as ‘a lost generation’, however a new definition can be put in place, as Rana Harbi sates it is more accurate to refer to refugees as ‘a demoralised generation9 ‘. The lack of hope that is a consequence of the limitation of employment creates resentment within the camps. For fathers in the camps, there is a feeling of emasculation in the inability to find work, furthermore this is then inherited by the young men. It is for these economic reasons that the camps have become a breeding ground for fundamentalism and creation of militant groups. In trying to isolate the problem, a far greater problem is created. In fact the clashes of camps and the huge array of different militia in the Lebanese Civil War can be seen now to have stemmed from the circumstances created by lack of employment or opportunities within the camps themselves. There is more to gain from improving the socioeconomic position of refugees in order to demilitarise the camps, than through any invasive military operation such as the 2007 Nah al-Bared refugee camp conflict that aimed to reduce militia activity. Yet fighting the symptom not the disease is short sighted and ineffectual.

In Turkey, the issue is less striking due to the good condition of the newly built camps such as the ‘Kilis Oncupinar Accommodation Facility’ with its systems of containers connected with brick paths; equally the position of the refugees appears to be short term. However as the Syrian war drags on, it is important to follow the record of Lebanese refugee history to avoid similar fractions within Turkey as well. Indeed this becomes more and more relevant as the threat of Islamic fundamentalism casts an ever growing shadow over the Middle East. By limiting discontent through ameliorating, wherever possible, the socio-economic position of refugees there are fewer means of recruiting young men into this way of life. Indeed within the refugee camps it is not just the allure of fundamentalism, but also drugs and gang culture that threatens their safely and future. Turkey does face the same short term economic problems of unemployment and rising price of living for both refugees and the native population, but is this not a better storm to weather than the alternative?

A further human right to observe within the refugee crises is that of protection from violence under Article 3 of the UN Universal Declaration of Human Rights10 . In Lebanon there is a deplorable track record of the refusal to honour this right. The Sabra and Shatilla camp massacres mark the lack of protection for those who cannot protect themselves. Furthermore the incident is not in isolation, the Tel al-Zaatar massacre where it is estimated between 1000-4000 refugees were killed is yet another example.

The legacy of these events prevents the political crisis from ending in Lebanon and that is what makes it essential to avoid similar oversights. Although the Lebanese authorities claim that under the Cairo conference, protection was the role of the PLO; this was not in accordance with the UN guidelines for protection of camps. One can witness a lack of responsibility for the protection of the people from many groups, including the PLO and the Lebanese government. In fact the UN condemnation for the attack fell on Israel for their complicit role in the massacre.

Although it is true to assert this, by entangling the issue within the Israel- Palestine conflict, the UN ignored the fact that the massacre took place on Lebanese soil and again responsibility for the attack was never truly taken, and lessons were not learnt. The reasons behind the vulnerability of refugees at this time was the Lebanese Civil War: refugees were not the priority for protection as they were not citizens of Lebanon, merely ‘foreigners’.

Additionally the political fractures within Lebanon at this time left the camps subject to violence as the raids on Israel from southern Lebanon; due to the lack of political control, led to an escalation of violence of all fronts. It can be said that there is no innocent party or victim in the war, yet the basic human rights

http://www.un.org/en/documents/udhr/

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The Journal of Human Rights and International Law were neglected in this instance. The lesson to take from this when applying the same principles to Turkey is that there needs to be a clear line of responsibility for the protection of refugees, both from within and outside the host countries. The fact that they are an undeniable destabilising political factor means that violence becomes an inevitable consequence. Therefore structures of protection are needed to allow for the safety of refugees. If anything can be witnessed from the history of the Lebanese Civil War, it is that these structures should not be controlled within regional conflict, perhaps more effectively by NGOs, where the agenda is protective not political.

A more controversial issue is the idea that statelessness is a denial of a basic human right, in this sense it can be construed that the inability for refugees to be naturalised is a violation of human rights. The purpose of this report is not to decide whether it is right or wrong to grant or deny naturalisation; but to evaluate the effects of statelessness. The Lebanese government constantly reinforces the differences between a Palestinian and a Lebanese citizen by their different representations before the law, and lack of rights (as previously discussed). These are the effects of being stateless; in essence losing every human right; including the human right to contest against the lack of human rights! In Lebanon the choice to give the PLO autonomy within the camps was a further means of denying the option of incorporating Palestinian refugees into society. Although viewed as the giving of freedoms to the Palestinian refugees, in fact it just wedges the gap of cultural and jurisdictional differences between the Lebanese and the Palestinians further apart. However this is not to say that the goal for Palestinian refugees is citizenship. As Jaber Suleiman states “the right of return... remains the ultimate, almost sacred, nation goal”11 .

This is because Palestinians realise that while they live in camps there is a sense of urgency in resolving, and a chance of resolving the Israel-Palestine conflict. There is fear that if given statehood anywhere else the international heads of states would decide the problem was no longer in need of a solution beyond this.

However this theory has not panned out, after 67 years the camps are still in place and urgency is evidently not a valid argument to influence change. Additionally, citizenship would also mark the idea that Israel had ‘won’ if the Palestinians were to revoke their right of return. In essence, citizenship falls into irrelevance next to the aim to return to their homeland, a Palestinian would rather be a refugee than an immigrant. For Lebanon the denial is to avoid change, in demographics; economics; politics and

Jaber Suleiman ‘No refuge: Palestinians in Leabanon’ Refugee Studies Centre, working paper series no. 64, June 2010 p17 12 Ibid 16 11

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cultural life. Although a large amount of change has taken place due to the Civil War, Lebanese identity still lies separate to Palestinian cultural identity and this is said to be threatened by the introduction of Palestinians as citizens. In a sense Palestinian refugees have become the child in a divorce case where no parent wants the custody.

The effects of statelessness and the presence of refugees is massive.

Not only is there a prolonged existence of huge refugee camps across Lebanon, but the political mess that is manufactured is an obstacle to peace and prosperity. The primary reason for this is that society is polarised between Pro and Anti-Palestinian presence. The issues that surround the existence of Palestinians such as their treatment, their level of involvement in society, and the degree to which they can expect social services, are just a few examples of the enormous amount of decisions that can possibly be made, and that are all controversial. This is no better summed up than by Suleiman “the Palestinian presence in Lebanon is still dealt with in Lebanese political and confessional context as a matter of polarisation and trade-off that can be used in interLebanese disputes.”12 Equally this presence destabilises Lebanon on the wider Arab context within the Middle East. This can be witnessed through how within the Lebanese Civil War, Syrian, Israeli and Palestinian forces all took part. While the issue is still unresolved, this can be repeated. It is unfair to say it is Lebanon’s responsibility to solve the problem of refugees, nor is it productive to suggest who is.

Yet other regions such as Jordan whose population is as aforesaid 65% Palestinian, have managed to diffuse much tension through citizenship and better treatment of refugees. It is in Lebanon’s interest to do as much as possible to de-politicise the presence of refugees in their country.

Examining the differences with Turkey’s approach to this concern could be useful for our better understanding. Such differences include the longevity of the conflict which (hopefully) will not match that of the Palestinian’s conflict. Additionally the refugees coming into Turkey are not stateless and their chance of return is probable. Yet this is not to say that there is a not large question about citizenship being granted to refugees. There is a clause within Turkish law of allowing automatic citizenship for those who have lived on the territory for 5 years. Given that there are an estimated 500,000 refugees that fled to Turkey in 2011; by 2016 they may all be automatically made into Turkish citizens.

Still to be decided is whether Turkey is able to cope with such large immigration and also evaluated to make the transition as stable as possible. Therefore, although the issue is very different,

The Journal of Human Rights and International Law in comparison it is still very relevant.

It is the hope of this article to promote thinking of a new level surrounding the pro-activeness of individuals trying to help refugees. Raising socio-economic positions; allowing cultural empathy; providing adequate protection and coming to conclusive decisions regarding citizenship, are just a few ways of aiding the crisis of refugees and not just containing or isolating the problem; but equally shrinking it. Many reports on refugees seek to do damage control; not to actively improve the situation. However some guidelines have been addressed here that have used the previous experience of history to influence our understanding, and to learn from them which is the main strength of comparative studies. The ability to see links between two completely different conflicts highlights the compatibility of these ideas and perhaps shows a means whereby they can be transplanted into other situations of refugees.

Bibliography: Said, Edward W. ‘The Politics of Dispossession: The Struggle for Palestinian Self-Determination 1969-1994’ (London 1995) Zetter, Roger, ‘The Syrian displacement crisis and a regional development and protection programme: mapping and meta analysis of existing studies of costs, impacts and protection’, February 2014 Suleiman, Jaber, ‘No Refuge: Palestinians in Lebanon’, Refugee Studies Centre, Working Paper no 64’, June 2010 Cagaptay, Sooner, ‘The impact of Syria’s Refugees on Southern Turkey: revisited and updated’, The Washington Institute for Near East Policy, July 2014 Shami, Seteney, ‘The Social Implictations of Popular Displacement and Resettlement: An overview with a focus on the Arab Middle East’, International Migration Review vol 27, spring 1993

Harbi, Rana ‘The Fight Against fundamentalist recruitment of Palestinian youth in Ain Al-Hilweh’, english.al-Akbar.com/ node/200055 , June 2014 Haddad, Simon, ‘The Palestinian Predicament in Lebanon, The Middle East Quuarterly, vol 7 no 3 September 2000 Rania, Maktabi, ‘the Lebanese Census of 1932 Revisited Who are the Lebanese? British Journeal of Middle Eastern Studies, vol 26 no 2 November 1999 Haddad, Simon, ‘Sectarian Attidtudes as a Function of the Palestinian Presence in Lebanon, Arab Studies Quarterly, June 2000 Ellis, Kail C. ‘Lebanon, the Struggle of a Small Country in a Regional Context’, Arab Studies Quarterly, January 1999 Amnesty International report: Struggling to Survive, refugees from Syria in Turkey, 2014 http://www.amnesty.org/en/library/ info/EUR44/017/2014/en

Weighill, Marie-Louise, ‘Palestinians in Lebanon: The Politics of Assistance’, Journal of Refugee Studies vol 10 no 3 1997 El Khazen, Farid, ‘Permanent settlement of Palestinians in Lebanon: A Recipe for Conflict’ Journal of Refugee Studies vol 10 no 3 1997

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The Journal of Human Rights and International Law

Freedom of Expression and Access to Information:

Institutional Revision For Peace and Security

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he tragedy in Charlie Hebdo premises, followed by both violent events and public response to them, as well as “dual” informational social and political reality around the war in Ukraine have obviously different background but paradoxically raise very similar questions about freedom of expression, mass media liberties and values of non-violent solution to conflict.

Each illustrates the dilemmas associated with quality and liberty of information circulation. Why it is important that these values are to be shared and protected worldwide and why is a “national” (i.e. strictly local) solution not appreciated? I am not expecting to reach a straightforward answer here but rather seek to determine which focus should be adopted to measure whether existing approaches solve these new (or “intensified” and “concentrated” old) challenges.

Freedom of expression and access to information under positive obligations of a government The freedom of expression and the access to information executed by publicity either individually or by means of mass media have been highly developed by legal doctrine trough time. These mutual elements were valuably interpreted by law practice leading to the formalization of criteria to be employed in evaluation of efficiency of the respective interaction between individuals as solicitors and beneficiaries of these liberties on one side and the state as a mechanism to balance conflicting views and interests on the other.

The evolution of enforcement raised more and more legal questions dictated with revealing more and more subjects open for public discussion. Some questions are left aside without direct answer which by itself prompts that there is still too much to discuss. It is now less about the legal issues that need to be worked out and more about their applicability and institutional stability.

The classical paradigm, provided by the article 10 of the European Convention of Human Rights, developed in the respective practice of the Court, establishes guaranties of execution of the freedom of expression accompanied with legal grounds to be constrained. This mechanism is applicable to individual remedies; a lot of effort is expected from the conventional states bearings positive obligations, in particular to create a favourable

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Nataliia Ivanytska Currently the Co-Head of an antitrust Practice in one of the major Ukrainian law firms, she holds a PhD in Civil Law. She currently lives in Paris with a professional interests in human rights, mass media, competition law and commercial litigation. environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear. It is also supposed to secure the role of the press as the public “watchdog” basing on the principle of pluralism.

Finally, it should secure physical protection for those journalists who express ideas relating to sensitive social and political issues.

Thus on the institutional level, information circulation is a process which remains under the jurisdiction and control of a state.

Charlie Hebdo: once more about the value of public discussion The role of mass media, social networks and public associations as platforms for discussion was addressed in many fundamental international documents and treaties. This is probably the clearest issue and it is not disputed in major terms. What was disputed (at least until the recent time) was, whether this platform has tangible limits and whether there are still non-desirable topics which are not to be exploited, namely religion and topics related to the divergence in beliefs.

Not everyone supported and shared the extreme freedom of criticism with irony or irony as a mean of criticism employed

by Charlie Hebdo. Provoking, shocking and yet always leaving space for discussion implies equality in dialogue which may lead to consensus or still remain a social dispute. Thus it is contrasted to violent (physical) resolution of conflicts and consequently appreciated by contemporary society. This is the value of discussion which always rests within the borders of a dialogue, regardless of the subjects and images. And even if the concept of the journal is not supported, its main idea must be shared: all extremes and exigencies are subject to criticism.

The Journal of Human Rights and International Law

Only through these sometimes robust critiques, these extremes can develop and become more valuable for those who can benefit from them. (Here I would suggest to add picture 1) Is that not the ultimate aim of journalism and freedom of expression, which calls for the famous “I detest what you say, but I will defend to the death your right to say it”?

It is very important to draw attention to the reason (probably one of the reasons) why people came to the main squares of their cities on the 11th of January to protest against the feeling of fear which is associated with all acts of terrorism and thus creates a certain extent of pressure non-consistent with freedom of expression. This perception is sound with the editors’ idea of Charlie Hebdo which can be understood as a continuous battle against fear and thus against any deprivation of freedom. And their weapon against fear is irony and humour, the form of which may be subject to discussion and debates, open and public, without fear and censure. (Here I would suggest picture 4) News makers and alternative reality (picture 5: the note: Don’t Kill wrote on a policeman’s shield. February 2014 ) The access to information is necessary for social and political decisions. In one of its key decisions on the role of mass media in the contemporary society. The European Court of Human Rights stated that “freedom of the press and more generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.”

[Paragraph 42] Some time earlier Abraham Lincoln proposed a simple formula of a state’s wellbeing: “Let the people be aware

of the facts and the country will be calm.” This idea side lines the ECHR judgments, which recognizes that it is in the public interest to know all the underlying facts and various possible solutions (see for example, Fressoz and Roire v France, 2011).

I believe that such an approach is not restricted to a particular sphere of information circulation and is equally applicable to all political debates, socially sensitive issues and situations involving economic interests. Furthermore, it is applicable to discussions concerned with all the mentioned domains.

What does the right of accessing underlying facts in the context of mass media and other information agents’ activities mean?

And how does it change in the light of freedom of expression?

The quality of information must be sufficient for reasonable and critical decision making in exercising political and social rights by the public. It is straightforward that without accurate information such decisions cannot be made, or what is even sometimes more dangerous and harmful – the decisions which made are wrong.

What if the question of quality of information with regard to its critical mass, scope of its distribution and absence of other plausible sources is able to create an alternative version of reality, leaving no space for “a marginal user” to judge rationally about the facts? After all, “to believe” is much easier than “to doubt and check”. Moreover, the quality of information is crucial when it comes to the presentation of a conflict with two (at least)

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clashing sides which obviously do not share their view to that underlying facts of the conflict. The mass media, which are expected to be a watchdog and the mechanism which enhances public debate, can turn out to be a serious weapon when used against open discussion and when used to create “an alternative reality” to facilitate manipulations with public opinion. Finally, it leads to situations where there is no place for choice, where passive consumption of the information provided by the unique (or united, eventually it can mean “censored or controlled”) resources equals to the approval of violence as nothing in the “underlying facts” suggests there could be another solution.

In the place of speaking about the violence someone would be more comforted to refer to unjustified violence to underline that there were no reasons to use any sort of force. With regard to the achievements of humanity both in legal and political domains, I strongly believe that the use of force is no more needed for the solution of conflicts and thus cannot be justified in principle, except for the obvious case when it serves as a defensive measure.

One year ago, a massive and consolidated protest against the “kill for solution” style of resolving conflicts as a governmental policy resulted in the revolutionary change of the state power institutes in Ukraine. These events were, are and will be analysed, discussed and debated by politicians, historians and journalists. Ukrainian people (to which the author of this article also belongs) call the evens of the winter of the 2013/2014 “the Revolution of Honour”, which was in fact the protest against violence and fear as methods of “management” and manipulation. “Underlying fact” of these events was the refusal to sign the Association Agreement between the EU and Ukraine by the ex-president. This step was contrary

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to preceding public discussion and was thus not anticipated by the Ukrainian society. What was even less anticipated was the use of force by the government used as a reaction to terminate the peaceful protest against the named action. Naturally, the people rose to protect their values and rights and attempted to seize the opportunity to influence their state’s future.

As it appeared at once, internal changes in Ukraine (which should be left within its own jurisdiction after official recognition of the new power authorities by international society) provoked unnatural reaction of its northern neighbour, i.e. Russian Federation.

This “reaction” has been widely assessed as an aggression with a regard to the documents of international institutions, which jurisdiction shall be recognized on the territory of Russian Federation as well. Meanwhile, the interpretation of the conflict and the events taking a place in Eastern Ukraine by official Russian mass media, whose influence on public opinion is essential, lead to the emergence of a critical majority of people who approved or at least did not protest against such international policy. Thus, this model of policy continues to be performed. It would be erroneous to omit the fact that some regions of Eastern Ukraine which found themselves under the fire of pro-Russian separatists have been influenced by the propaganda of the Russian mass media for a long time. The scope of harm of these informational interventions by Russian mass media, which totally contradicts the facts and versions introduced by international organizations, cannot be fully measured but can be approximated with a help of a quick glance to the world map.

The Journal of Human Rights and International Law Nevertheless, this problem has not been yet addressed institutionally, whereas informational security (or more comprehensively, resisting to unfriendly propaganda) has obviously become a question of world peace sustainability.

Where shall we look for the workable solution?

The value of the freedom of expression and the right to access to information are fundamental for democracy: other means of exercising of the function to participate in the social and political life do not exist. The consequences of the removal of these liberties and the manipulation with people’s beliefs by the means of creating an “alternative reality” can be empirically observed (if we do not have any example in the real time, we can always render to the examples provided by the world history).

If we agree that the positive obligation to guarantee these rights is not fully and equally respected by all conventional states and if we admit that it has a crucial importance for security, shouldn’t we start treating informational security and all surrounding issues with the same level of institutional importance which is enjoyed by physical security?

Otherwise, we should not exclude that at some extreme stage (no more ironized by Charlie Hebdo), a simple feeling of fear may make people to fall silent. This would not be an approach consistent with democracy, would it?

Bibliography Positive obligations on member States under Article 10 to protect journalists and prevent impunity//Research report// http://www.echr.coe.int/Documents/Research_report_ article_10_ENG.pdf G-7 Leaders Statement on Ukraine http://www.consilium. europa.eu/en/press/press-releases/2015/02/g7-ukrainestatement/

Council conclusions on Ukraine //European Council/Council of the European Union//http://www.consilium.europa.eu/en/ press/press-releases/2015/01/council- conclusions-ukraine/ March 27 the United Nations General Assembly Resolution «Territorial integrity of Ukraine» March 27 2014 (A/ RES/68/262) //http://www.un.org/en/ga/search/view_doc. asp?symbol=A/RES/68/262

Statement by the President of the European Council Donald Tusk on the situation in Ukraine//http://www.consilium.europa. eu/en/press/press-releases/2015/02/150220-statement-tuskukraine/

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The Journal of Human Rights and International Law

Ban the Ban: A Critique of the Reasoning Behind the Decision in S.A.S. v France T

Katarzyna Zbrowska

he perception of traditional female Islamic dress in the Western world has never been positive. A great number of people consider it to be a symbol of male oppression and unyielding patriarchy. A French politician has even called a niqab1 a ‘walking prison’.2 There is no clearer proof that we, the Westerners, fail to notice anything positive about the religious clothing worn by Muslim women.

The European Court of Human Rights’ (ECtHR or the Court) recent judgment in the case of S.A.S. v France which confirmed the legitimacy of French ‘burqa ban’ proves the point raised above. Moreover, it also demonstrates another problem with the Western understanding of Islamic traditions – the Court’s analysis in such cases is always limited to the context of freedom of religion and the right to private life. This essay constitutes a critique of the Court’s reasoning in S.A.S. and aims to show that judges should also look at the issue of Islamic dress from another perspective – that of gender equality and freedom of choice. This shall be done by, firstly, discussing the case of S.A.S. v France and the attitude towards bans on religious wear in several European countries. Secondly, the meanings attached to full-face coverings shall be presented and critically evaluated. Lastly, the author of this paper will explain and substantiate her idea of introducing the notions of gender equality and freedom of choice into the legal discourse on burqas and other forms of Islamic dress.

The focus of this paper will be put on the case law of both the ECtHR and national courts of several European states as well as the legal instruments of the Council of Europe (CoE). Other, also non-legal, sources shall be used, such as scholarly papers, newspaper articles and online resources on issues relating to gender equality and feminism, to allow for a more comprehensive view of the topic to be presented.

S.A.S. v France and ‘burqa bans’ The case of S.A.S. v France concerns a French Law 2010-1192 which prohibits covering one’s face in public except for very A niqab is a veil which covers the face, leaving only the eyes visible. It is usually worn with an abaya, which is a type of a cloak covering the whole body. A burqa, on the other hand, is an item of clothing which covers the whole body including one’s face. It has a grill over the eyes. (http://scanfree.org/wp-content/ uploads/2013/07/burqa2.jpg, accessed on 2 January 2015) 1

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Katarzyna graduated from King’s in 2014 with a degree in Law with European Legal Studies. At the moment she is pursuing a Master’s in International Human Rights Law in Lund, Sweden. limited legally prescribed circumstances. Furthermore, it inserts into French Criminal Code a provision which criminalises forcing anyone to cover their face.3 The law was introduced to combat identity fraud, to prevent danger for the safety of people and property and to protect the values inherent in a democratic society. 4 Even though phrased in a neutral manner and not explicitly targeting any group or gender, the law nonetheless indirectly discriminates against Muslim women who wear burqas or niqabs. It is most detrimental to those women who, like the applicant in the case, wear Islamic clothing because of their own personal convictions and are under no form of duress. For them, the law results in a punishment for making free choices as to strictly private matters, i.e. clothing and manifestation of religious beliefs. The ECtHR agreed in S.A.S. that there is an interference with the applicant’s right to private life and freedom of religion under Articles 8 and 9 of the European Convention on Human Rights (ECHR). However, the ban was found to be legitimate and necessary in a democratic society. The Court followed the principle formulated in Otto-Preminger-Institut v Austria,5 according to which the States are given a broad margin of appreciation in deciding the extent of limitations of the freedom of religion, as there is no uniform conception of the significance of religion in the CoE. Two possible justifications for the ban were considered – public safety and protection of the rights and freedoms of others. The Court did not agree that the http://www.theguardian.com/world/2011/sep/19/battle-for-the-burqa, accessed on 2 January 2015.

3 Article 225-4-10 of French Criminal Code.

4 S.A.S., para 82.

5 Otto-Preminger-Institut v Austria, ECtHR Application No. 13470/87, Judgment 20 September 1994.

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The Journal of Human Rights and International Law ban was necessary as far as the former was concerned, since risks to it could be averted by less restrictive means than surrendering completely an element of one’s identity. Proportionality was found, on the other hand, in relation to the latter, for the law was seen as a safeguard of human dignity and interaction between individuals. Such interaction, allegedly hindered by veils, was considered to be an essential element in expressing pluralism, tolerance and broadmindedness. Once again, the Court stressed that there is no common position among the States on the issue of such bans and thus no violation of Articles 8 and 9 was found.

The author of this essay finds the reasoning of the Grand Chamber unconvincing and considers the partly dissenting opinion of judges Nussberger and Jäderblom more appealing.

Firstly, as has already been noted, the decision is based solely on the analysis of Articles 8 and 9 and the notion of gender equality has only been mentioned when the Court acknowledges that those women who choose to wear a veil will be particularly affected by the ban.6 The author agrees with the third party interveners in the case, who stress that such prohibitions raise the risk of intersecting or multiple discrimination.7 To prohibit a woman from wearing a veil does not only impact on the ways she can manifest her religious beliefs, but it also reinforces a Western feministic negative view of full-face coverings and restricts a woman’s right to make free choices (see the section on the meaning of full-face veils). Secondly, the dissenting judges point out that the majority’s decision implies that pluralism, tolerance and broadmindedness can have different meanings depending on the circumstances.8 It seems that in this case the judges’ understanding of these concepts has been surprisingly narrow, especially in the context of their being judges in an international court of human rights. One would expect them to prioritise such values while balancing competing interests and not legitimise a ban which results in ‘selective pluralism’ and ‘restricted tolerance’.9 Thirdly, judges Nussberger and Jäderblom raise a valid point in that human interaction is not impossible when one’s face is covered, which seems to be one of the main arguments supporting the majority’s decision.10 On many occasions, people do wear face coverings and still communicate effectively. People wearing masks at carnivals, skiers, surgeons – they all cover their faces and yet interact with others and no one would accuse them of disrespecting the dignity of their interlocutors. What is more, the women concerned by the ban constitute a minority in a country like France which has a population of nearly 65 million people.11 This fact has been used by the majority as a justification S.A.S., para 146.

S.A.S., paras 90, 93 and 97.

8 Partial dissent of judges Nussberger and Jäderblom in S.A.S., para 14.

9 Ibid.

10 Ibid., para 9.

11 http://worldpopulationreview.com/countries/france-population/, accessed on 2 January 2015.

of upholding the ban, since it would only negatively affect a small number of women. But it should also be observed that because there are very few women wearing burqas or niqabs in France, the chances of actually interacting with them are very slim and human dignity would very rarely be endangered in the way perceived by the majority.12 Less restrictive means based on civic education from an early age could and should be introduced instead of an outright blanket ban.

What seems to be the weakest point of the judgment, and an inconsistency that was also pointed out in the dissent, is the misuse of European consensus. The Court emphasises that the margin of appreciation should be especially wide in cases like this one where there is “little common ground amongst the member States”.13 The author finds this line of reasoning odd, as the only other country which has a ban on full-face coverings is Belgium and merely several German Länder have introduced a partial ban on headscarves. On the whole, however, most of the countries either have not considered such a ban or, like Spain and the Netherlands, have not allowed them to come into force.14 Thus, it seems that there is a European consensus against the ban rather than in favour of it and the author submits that the courts should not rely on the assumption to the contrary when deciding to ban burqas. Even though the states are accorded with a broad margin of appreciation in relation to accommodation of different religions, the Court itself points out that the States’ discretion is curtailed subject to a consensus or common values shared by the States.15 This discrepancy could lead to a conclusion that the Court is contradicting itself and is clutching at whichever argument, however illogical, it is able to find to justify the ban. Unfortunately, by doing that, it also perpetuates negative attitudes towards Islam. This is incomprehensible to the author, as the ECtHR should condemn all forms of violations of human rights, Islamophobia and gender discrimination included.

Meanings of full-face veils Negative attitudes towards burqas and niqabs Western feminists claim that ‘the burqa is a symbol of patriarchal Islam’s intolerance of dissent and desire to contain and repress female sexuality’.16 This statement is in fact a very accurate summary of the general perception of female Muslim dress across Europe.

In France, there is a belief that a full-face veil goes against the Partial dissent in S.A.S., para 23.

S.A.S., para 156.

14 http://www.news.com.au/national/burqa-bans-already-in-place-in-manycountries/story-fncynjr2-1227078762996, accessed on 2 January 2015.

15 S.A.S., para. 129.

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The Journal of Human Rights and International Law values of the Republic – ‘liberty, equality, fraternity’, since it endangers human dignity and gender equality, constitutes a symbol of female subservience, and impedes contact with others.17 It will be shown further on in this essay that such a conception, even though containing a substantial grain of truth, cannot be applied to every single case of a woman dressed in a burqa. What is more, the French stance on the issue goes hand in hand with the concerns previously expressed in the cases of Leyla Şahin v Turkey18 and Dahlab v Switzerland19 in which a powerful negative external meaning has been attached to Islamic headscarves. French Government ascribes the same meaning to burqas and associates the practice of wearing them with extremist fundamentalist movements.20 As far as the author of this paper is concerned, such an argument points to the unwillingness of the Western world to acknowledge that not all practices that are unfamiliar to us must necessarily be wrong or dangerous.

It seems that due to the prevailing antagonism towards Islam caused, among others, by the recent terrorist attacks, the Westerners have chosen not to broaden their understanding of Islamic culture and thus bolster stereotypes which are unjustly harmful to the majority of Muslims who have no connection whatsoever with extremism.

Another contention against burqas is that banning them encourages people to fully integrate. Belgian Government stated that covering one’s face is a sign of reluctance to take part in a society and that veils thus ‘dehumanise’ women.21 It is submitted that this is an ill-conceived argument, as legislative measures which prohibit wearing Islamic dress in public dissuade affected women from participating in public life and, in consequence, isolate them. Hence, even if they are willing to integrate with the rest of the society, they are deterred from doing so. According to the author of this essay, integration should not mean giving up one’s own convictions and identity but rather trying to reconcile them with the values shared by the society. Therefore, it would seem that burqa bans are in reality contrary to integration and that they subvert pluralism.22 What is more, some women perceive a burqa as a defence against overly exposing their bodies.23 It is submitted that as long as a decision to protect one’s femininity behind a burqa is one’s own choice, i.e. it is not a result of duress, this should be respected.

However, some scholars think that such a conception of a burqa leads to a situation where men are victimised and are treated as sex-obsessed, for the only way to prevent them from acting on https://newhumanist.org.uk/articles/4199/why-feminists-should-oppose-theburqa, accessed on 3 January 2015.

17 S.A.S., para 17.

18 Leyla Şahin v Turkey, Application No. 44774/98, Judgment 10 November 2005.

19 Dahlab v Switzerland, Application No. 42393/98, Judgment 16 May 2001.

20 S.A.S., para 16.

16

19

their urges is to completely hide the object of their lust.24 The author of this paper is critical of that stance, since phenomena like cat-calling or gang-rapes prove that women are often treated as sex objects and it is thus perfectly understandable that some of them may feel more secure and less objectified when their bodies and faces are concealed.25

Positive meanings of face coverings The arguments raised above are not wholly fallacious and fullface veils are many a times symbols of female oppression or radical Islam. However, as has been stated above, Western perception of burqas, niqabs and other Islamic dress is built on negative stereotypes and generalisations. People in Europe are not well acquainted with Muslim culture and tend not to express any interest in broadening their horizons. Instead, they choose to ban the practices that they are afraid of, which, according to the author, is a mistake, as there are many positive interpretations of burqas and niqabs.

The applicant in S.A.S. points out to the fact that instead of being a symbol of female subjugation, veils often denote quite the opposite – women’s emancipation, independence and expression of their self-worth. By wearing burqas and niqabs, they affirm that they are willing to participate in society and that they are doing it out of their own volition and not because of any form of pressure being exerted upon them. Denying women the right to express themselves in such a powerful way would lead to enlarging inequalities between genders.26 And that can by no means be condoned, especially by such an institution as the ECtHR. Women who actually wear veils should be the ones shaping the attitudes towards burqas that ought to be adopted in courts and Ibid., para 87.

Partial dissent in S.A.S., para 14.

23 N. Fadil, Not-/unveiling as an ethical practice (http://www.palgrave-journals. com/fr/journal/v98/n1/full/fr201112a.html), p 100.

24 K. Lemmens, Larvatus prodeo? Why concealing the face can be incompatible with a European conception of human rights, E.L. Rev. 2014 47, p 55-56.

25 N. Fadil, Not-/unveiling as an ethical practice, p 100.

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The Journal of Human Rights and International Law amongst those wielding political power. This is because the focus on the rights should be from the point of view of the subjects and in cases concerning burqa bans female autonomy should be emphasised.27 Unfortunately, this is presently not the case. The composition of the European courts is in the majority of cases not versatile enough to allow for the entirety of the nuanced significance of Islamic dress to be grasped.28 Thus, the external meanings attached to such symbols as burqas or headscarves are many a time based on the rather limited knowledge of the adjudicators and on the commonly shared misconceptions.

Apart from perceiving burqas as indications of female liberation, many orthodox women also underline that veils are symbols of worshipping God.29 This is an argument of crucial importance as it highlights how burqa bans simultaneously affect both gender equality and freedom of religion. If a woman is prohibited from wearing full-face veils, she is denied her own autonomy and the right to decide about her religious beliefs and the forms of their manifestation. The author is not trying here to debase the French laïcité but it has to be borne in mind that the Law 2010-1192 goes beyond this doctrine by banning full-face coverings in all public spaces. As such it restricts women’s freedom of religious expression in a disproportionate manner,30 as one cannot hold that a certain manifestation should be banned solely because he or she finds it shocking or disturbing.31 If it could be so, then it seems extremely difficult to conceive of a single conviction that would be accepted by literally everyone in society.

Freedom of choice and gender equality The discussion above demonstrates that there is no one unequivocal meaning that could be attached to such a powerful symbol as a full-face veil. Therefore, looking at it from one perspective only and removing the notion of female autonomy from the discourse on the burqa, is a practice that should be discontinued by the authorities and the judiciary. As an alternative, the author of this essay suggests that the main focus of discussion while handling the cases on religious dress should be diverted from freedom of religion. Instead, such cases should be decided in view of gender equality, freedom of choice and freedom of religion taken together, as all of them are affected when bans are imposed on certain forms of religious dress.

S.A.S., para 77.

M. Malik, Feminism and its “other”: female autonomy in an age of “difference”, Cardozo L.R. Vol. 30:6 2613, p 2628.

28 Interestingly enough, 11 judges out of the 17 judges hearing the case of S.A.S. were male, while the only two dissenting judges were female.

29 N. Fadil, Not-/unveiling as an ethical practice, p. 95.

30 http://www.economist.com/blogs/economist-explains/2014/07/economist-explains-2, accessed on 3 January 2015.

Upon reading of the judgment in S.A.S. v France one could argue that the author is wrong in saying that gender equality was not taken into consideration in that case. Nevertheless, it is submitted that the term has not been given sufficient weight by the majority of the Grand Chamber. The beginning of the Court’s analysis seemed very promising as it criticised the French Government’s attempt to rely on gender equality to prohibit a custom defended by a considerable number of women.32 That was, however, the extent to which it tackled the issue. The Court failed to develop its argument, while had it done so, it may have reached a different overall conclusion. This is because even though there are many women who support burqa bans,33 such prohibitions are disrespectful and misrecognize those women who autonomously choose to wear burqas or niqabs.

Their identity as humans, as members of religious or cultural communities, and as individuals who are able to subjectively define their own personality according to their wishes, are compromised by such legal measures.34 Some argue that Mill’s ‘harm principle’35 should be applied in the context of interfering with those personal aspects of human existence like one’s choice of clothing.36 It is in fact a very appealing approach, as it allows for respect for a person’s autonomy as long as that does not result in any detriment to others. And if the position of the dissenting judges in S.A.S. is adopted and the veils are not considered as antisocial devices which hinder human interaction, it is a very hard task to find a way in which a burqa or a niqab could harm anyone (extreme situations apart). It is true that the courts should be wary of judicial activism in cases involving religion and culture but they should not refrain from it in the way they are doing it now, i.e. by granting the States an extremely wide margin of appreciation. More protection should be granted to individuals’ rights instead.

Gender equality is inherently linked with freedom of choice.

It is beyond any doubt that in many cases Muslim women are not given any alternatives and are forced to wear certain clothes and act in certain ways. However, this should not be the case and the importance of the freedom to choose whether women want to cover their bodies and faces ought to be acknowledged.

English Supreme Court Judge, Lady Hale, drew attention to this point in her judgment in the case of Shabina Begum37 where she emphasised that such a freedom should be exercised from the early years, for young girls have to be able to experiment in order to make informed choices based on their personal experiences Partial dissent in S.A.S., para 7.

S.A.S., para 119.

33 K. Lemmens, Larvatus Prodeo…, p. 52.

34 J. Marshall, The legal recognition of personality: full-face veils and permissible choices, Int. J.L.C. 64 2014, p 65.

35 According to Mill’s harm principle, a state cannot interfere in an individual’s actions as long as he or she does not harm others.

36 J. Marshall, The legal recognition of personality…, p 66.

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31

27

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The Journal of Human Rights and International Law later on.38 The author of this paper agrees with this opinion and considers it as essential for young girls to be encouraged to explore their options. That can be achieved through adequate education which would not only raise children’s awareness of the meaning of gender equality and freedom of choice but would also broaden the horizons of the non-Muslim pupils on the issues of Islamic culture. If that is done, the understanding of the symbolism of the burqa would be changed and cases such as S.A.S. would be analysed from a different perspective and, hopefully, would be decided differently.

not disproportionately interfere in the matters of religious accommodation and the states are better equipped to regulate this area. Notwithstanding, the blanket ban and the subsequent decision of the Court have a detrimental impact on the rights of many individuals, who, like the applicant in S.A.S., want to freely manifest their identity. It is submitted that the French and Belgian burqa bans contribute to the already negative attitude towards the Muslim community in Europe and the unwillingness of the ECtHR to oppose such laws only exacerbates the general hostility.

The ECtHR’s jurisprudence and the attitudes of the Western authorities regarding Islamic dress could also be changed if they considered the notion of gender equality from the perspective of women who are Muslim and who perceive Islamic traditions in a Western-centric way. Islamic feminists, just like all the other feminists, strive for a social structure that is egalitarian. What distinguishes them from Western feminists and makes their perspective all the more valuable in the discourse on the burqa, is that they derive their ideology from Islamic culture itself.39 Therefore, taking their opinions into consideration would allow those in power to acquire a fuller and more multicultural understanding of what gender equality is. It could open many eyes to the fact that wearing the ‘walking prison’ may in fact not be a punishment but a free and informed choice of an independent woman who is fully aware of her worth. Such a perspective was definitely lacking from the S.A.S. decision which resulted in this judgment being an example of a very ‘Western’ take on the issue.

What should be done is to abandon attaching a single external meaning to religious dress. This meaning together with the content of the rights of gender equality and freedom of choice should be shaped by the Muslim women themselves. They are the ones who are directly affected by burqa bans and thus their viewpoint should not be ignored in deciding upon the legitimacy of these regulations. And yet, national authorities and the courts continue to rely upon stereotypes which have been shaped basing on the very limited knowledge of the cultural and religious context which the Muslim women come from. This could be eradicated by introducing a greater versatility to the courts as well as the legislative and executive organs of the States. If this is done, a broader perspective can be taken on the problems taking place within societies. In consequence, a more nuanced approach could then be taken towards burqas and niqabs.

What is also of crucial importance is the need to reshape the understanding of gender equality. Even though it is firstly women who should become fully aware of their rights and of the extent of their autonomy, patriarchy and paternalism have to be eradicated. To achieve that, men should take a feminist perspective and acknowledge the equality of women in every context of human existence. Women must be able to find support amongst men in their closest vicinity (family, partners, teachers, community, religious leaders, authorities, etc.). To achieve an environment where gender equality can thrive, an emphasis ought to be placed upon educating children on the meaning and importance of equality right from the beginning.

Conclusions Several conclusions can be drawn from the arguments discussed above. Firstly, the case of S.A.S. v France is a landmark one as it is the first case ever to deal with an outright blanket ban on face covering. The issue that was before the Court was a very complex and delicate one, which had to be handled from different angles.

It has been argued throughout this paper that the majority of the Grand Chamber did not manage to grasp the intricacy of the case or at least preferred to ignore it altogether for fear of being too activist. It is unquestionable that the courts should

R (Shabina Begum) v Governors of Debingh High School [2006] UKHL 15.

Ibid., paras 97-98.

39 http://m.aljazeera.com/story/201332715585855781, accessed on 4 January 2015.

37 38

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The Journal of Human Rights and International Law Bibliography Dahlab v Switzerland, Application No. 42393/98, Judgment 16 May 2001; French Criminal Code;

Leyla Şahin v Turkey, Application No. 44774/98, Judgment 10 November 2005; M. Malik, Feminism and its “other”: female autonomy in an age of “difference”, Cardozo L.R. Vol. 30:6 2613;

http://m.aljazeera.com/story/201332715585855781, accessed on 4 January 2015;

N. Fadil, Not-/unveiling as an ethical practice (http://www. palgrave-journals.com/fr/journal/v98/n1/full/fr201112a.html);

http://scanfree.org/wp-content/uploads/2013/07/burqa2.jpg, accessed on 2 January 2015;

Otto-Preminger-Institut v Austria, ECtHR Application No. 13470/87, Judgment 20 September 1994;

http://worldp opulationre vie w.com/countries/f rancepopulation/, accessed on 2 January 2015;

R (Shabina Begum) v Governors of Debingh High School [2006] UKHL 15;

http://www.economist.com/blogs/economist-explains/2014/07/ economist-explains-2, accessed on 3 January 2015;

S.A.S. v France, ECtHR Application No. 43835/11, Jugdment 1 July 2014.

http://www.heforshe.org, accessed on 4 January 2015; http://www.news.com.au/national/burqa-bans-already-inplace-in-many-countries/story-fncynjr2-1227078762996, accessed on 2 January 2015; http://www.theguardian.com/world/2011/sep/19/battle-for-theburqa, accessed on 2 January 2015; https://newhumanist.org.uk/articles/4199/why-feministsshould-oppose-the-burqa, accessed on 3 January 2015; J. Marshall, The legal recognition of personality: full-face veils and permissible choices, Int. J.L.C. 64 2014; K. Lemmens, Larvatus prodeo? Why concealing the face can be incompatible with a European conception of human rights, E.L. Rev. 2014 47;

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The Journal of Human Rights and International Law

Why The Interview Wasn’t Funny: Human Rights in North Korea and the Need to Refocus Our Attention.

Jina Woo

T

he recent release of the action comedy film The Interview triggered a strong wave of political and social controversy around the globe. The film’s plot—a fictional story of two american journalists instructed to assassinate North Korea’s infamous leader Kim Jong-un—was instantly condemned by the North Korean government. On November 24, 2014, about five months after North Korea’s open promise of “merciless” retaliation if the film were to be released1, Sony Pictures Entertainment, the parent company of The Interview’s distributor Columbia Pictures, was hacked by an anonymous group that named themselves “Guardians of Peace.” 2 While the North Korean government officially denied involvement in the hack, the majority opinion around the world was that this group of hackers was indeed North Korean, and a public outrage followed. The outcry further escalated when Sony cancelled The Interview’s wide theatrical release, causing millions of people to deliberately download the movie online as a symbol of protest.3 The Interview’s satirical critique of Kim Jong-un and the North Korean totalitarian regime is a classic portrayal of general international attitude towards North Korea. While few would deny that North Korea is a scary place, the nation is more often than not viewed in a comical light. And who can blame them?

The overweight dictator with “that horrid hairdo” throwing the occasional “beg for money” nuclear tantrum so he can invite Dennis Rodman to his birthday party has to present a hilarious image. Yet while the rest of the world is laughing at the absurdity of the alien regime, or protesting freedom of speech infringements that rose with The Interview, the horrific nature of standards of living in North Korea, and the severe violation of human rights are often overlooked as heavy issues in desperate need of international awareness.

Jina is a 1st year undergraduate law student at King’s. She is from South Korea but grew up in the freezing Northeastern part of the US. She is jealous of her family, which lives in sunny Orange County, California.

People’s Republic of Korea (North Korea) and the Republic of Korea (South Korea). South Korea is a liberal democratic nation while North Korea is a hereditary dictatorship and is often described as totalitarian. This means that while South Korea is home to Samsung and Hyundai, the world’s fastest internet, and widely developed entertainment and education industries, North Korea is ruled by a dictatorial family that censors virtually all internet access (there basically is none), bans both immigration and emigration as well as most contact with the rest of the world, and controls virtually every aspect of civilian activity. No one (not even South Koreans) can go in or out of North Korea with the extremely rare exception of temporary visits specifically allowed by the DPRK government. Therefore, it is nearly impossible to

If the journey is so risky and seldom ends in success, why do so many people attempt to escape? Most defectors say that they did not have a choice. Living conditions in North Korea are so harsh that the only choices available were dying of starvation or dying while attempting to defect.

The Korean Peninsula is composed of two nations: South Korea and North Korea. Korea was a single political entity until the end of World War II, when the Armistice Agreement ended the Korean War in 1953 and split the nation into two: the Democratic

know the situation within North Korea’s borders, limiting such knowledge to the information given by North Korean defectors (North Koreans that managed to escape the nation’s borders).

Ryall, Julian (June 20, 2014). “North Korea slams US film The Interview about Kim Jong-un”. The Daily Telegraph.

2 McCurry, Justin (June 25, 2014). “North Korea threatens ‘merciless’ response over Seth Rogen film”. The Guardian.

3

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Branigan, Tanya (December 18, 2014). “Sony’s cancellation of The Interview surprises North Korea-watchers”. The Guardian.

4 Hwang, S. (November 17, 2014). “North Korean defector: ‘I had never heard of human rights’”. The Guardian

The Journal of Human Rights and International Law Yet while such information is rare and limited, each anecdote is shocking beyond imagination. The horror stories of these defectors’ miraculous escapes alone are mind blowing. All of these stories describe incredibly dangerous journeys across tumultuous environments and endless hiding from armed sentries checking every road and guarding every route. Most stories include the loss of several loved ones, either left behind or during the escape.4 Losing loved ones to starvation or the freezing waters of the Tumen River are some of the better scenarios. More often than not, the families of defectors are tortured and brutally murdered; sometimes entire extended families are exterminated in order to “uproot the poisonous treachery.” One defector tells the story of his attempt to escape North Korea with his young son after the rest of his family died from starvation. During the escape he had to leave his son behind in the hands of a Korean Chinese person and defect to South Korea alone. After settling in South Korea, he used the settlement money given to him by the South Korean government to look for his son, only to find that his son had been caught by police and left to die in the desert.

those deemed guilty. Conditions are dire. Public executions are common and torture is a prevalent tool. Those that do not killed by the constant beatings or executions die of malnutrition or overwork. In October 2013, Amnesty International published satellite images of two of the largest prison camps, showing that new housing blocks have been built and work facilities have expanded since 2011.

If the journey is so risky and seldom ends in success, why do so many people attempt to escape? Most defectors say that they did not have a choice. Living conditions in North Korea are so harsh that the only choices available were dying of starvation or dying while attempting to defect. North Korea is organised into administrative divisions that are taxed accordingly with the criteria set by the central government. Pyongyang, the nation’s capital, is home to the nation’s upper class— families of highclass government officials or other high ranking occupations.

Only licensed individuals can live in Pyongyang, and there is no moving in or out of the capital without the government’s permission. The majority of people in the other districts are forced to work in harsh conditions and endless hours, and are heavily taxed to feed the appetite of the Pyongyang upper class.

The concept of human rights does not exist in North Korea; virtually every fundamental freedom is oppressed and justice is a nonexistent luxury for all. In order to maintain its absolute power, the central government constantly attempts to brainwash the public into total submission, using fear, intense censorship and propaganda to convince civilians that their way of life is the best way to live.

Despite its cancelled theatrical release, The Interview earned more than $40 million in digital rentals, making it Sony’s most successful digital release yet. Movie critics believe that the movie’s widespread success is mainly due to the media attention that the controversy regarding its story stirred. The Interview triggered a whirlwind of laughter and debate that has mostly died down.

Yet, still buried underneath the debris is the suffering of millions of innocent civilians struggling day-today in a living nightmare.

Approximately 27,000 North Korean defectors live in South Korea today. These people risked their lives for the chance to lead better lives in their brother country. Yet, due to strong biases against North Korea and the difficulties of adapting to a capitalist economy, most defectors struggle to find employment, and the majority choose to hide their past. 7 Strong discrimination against these defectors is only further perpetuated by the misdirected slander prevalent in the international community.

Behind the jokes and satire that define North Korea in the eyes of the world are millions of innocent civilians struggling to survive and thousands of defectors that are being cast out of society.

Sixty-two years ago, the same people that now live every day in pain and fear were the mothers and fathers, sisters and brothers of South Koreans. Millions of people still have family members that are living in North Korea. A South Korean myself, I cringe at the absurd story of the guy with the weird hairdo indulging himself because I know that this is an agitating reality for my brothers and sisters across the border. As time passes and awareness is replaced with bias and oblivion, the two brother nations grow increasingly apart, moving rapidly towards an irrevocable gap.

Increased awareness is the first step to accepting defectors into our society and crumbling the walls of cruelty and oppression in North Korea.

People that are suspected of committing a crime are detained in secret political prison camps called kwan-li-sos 5 . Most people that are detained in these camps (many of whom are women and children) are innocent civilians—often family members of

World Report 2014: North Korea. Retrieved February 24, 2015, http://www.hrw. org/world-report/2014/country-chapters/north-korea 6 Matthew McGrath (7 June 2012). “Marked for Life: Songbun, North Korea’s Social Classification System”. NK News.

5

Williamson, L. (2014, October 1). The North Koreans setting up businesses in the South.

8 The Chosun Ilbo (English Edition): Daily News from Korea - S.Korean Envoy’s Speech at UN Goes Viral.

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The Journal of Human Rights and International Law

Possession as the Basis of Aboriginal Claims to Ownership of Land A

rticle 26 of the United Nations Declaration on the Rights of Indigenous Peoples states that “[i]ndigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”1 After the indigenous peoples were dispossessed of their lands by the colonial powers, this was an attempt in international law to encourage the concerned Member States to grant property rights to the indigenous peoples. After initial opposition to this resolution, the concerned countries (Australia, the United States, Canada and New Zealand) endorsed the Declaration. 2 However, when considering the claims of the Aboriginal people in Australia - the focus of this essay - it becomes especially clear that there is still a huge gap between what the Declaration prescribes and what the current law of property states concerning the rights of the Aborigines. This essay will analyse if the common law of first possession could support aboriginal claims to ownership of land. It is submitted that this would only be the case when Aboriginal claims largely concur with the (Western) common law perception of property rights. This shall be demonstrated by expounding the common law definition of “possession” and by analysing past Aboriginal claims in light of this definition.

Definition of Possession A case that illustrates how the common law defines possession is the American case Pierson v Post. 3 The claimant was hunting a fox when the defendant appeared, killed the fox and took it with him although he knew it had been pursued. The claimant asserted that he had acquired a property right over the animal when he started hunting and sued for damages. However, the court held that one only acquired possession when one killed or mortally wounded the animal. The pursuer by doing so brings the animal “within his certain control.” 4 This establishes possession and as a consequence a claim to ownership.5 Rose perceives two relevant principles the court considered in order to establish possession: “(1) notice to the world through a clear act, and (2) reward to useful labor.”6

United Nations Declaration on the Rights of Indigenous Peoples (adopted ) UNGA 61/295 art 26, 2 “E-Learning Series on International Frameworks that Support Indigenous Peoples, Local Communities, and Their Territories and Areas”. Natural Justice. Web. 15 April 2013.

3 Pierson v Post 3 Cai. R. 175 2 Am. Dec. 264 (N.Y. 1805).

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Rishab Reitz Rishab is currently studying an LLB in English and German Law at King’s College London.

She submits that the first principle (which shall be referred to as the “clear-act” principle 7 ) corresponds to the consent theory and the second principle (which shall be referred to as the “labour” principle) to the labour theory. The labour theory, which was developed by John Locke, claims that when an individual “mixes his labour” with something, he acquires a property right over it. 8 The consent theory argues that the one gets ownership over something through “the consent of the rest of humanity”. 9 Rose argues that the principle requiring notice to the world is a “weak form” of the consent theory, as clear acts are required by the community so that claims may be disputed or accepted if there is no objection. 10 As the case was primarily decided on this basis, communication appears to be very important for a possession claim. In Brumagim v Bradshaw 11 the court affirmed this by holding that that the law only recognizes possession if there are “open, unequivocal and notorious acts of dominion”12. Such acts may be recognized by courts if the land is used in such a way that it is obvious that there is an intention to appropriate.13 At this point Rose points out that when the courts grants a property right because of clear acts of appropriation, it is essentially rewarding “useful labour”.14 It is submitted that the common law courts have also applied the Lockean labour theory in a more direct way than suggested by Rose. For example in Haslem v Lockwood 15 the court held that the claimant had appropriated manure when he “changed its original condition and greatly enhanced its value by his labor”. Hence, the “labour” principle will also be considered in this essay.

Ibid at 178.

Carol Rose, “Possession as the Origin of Property” (1985) 52 University of Chicago Law Review 73, p. 76.

6 Ibid., p. 77 7 Ibid.

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The Journal of Human Rights and International Law

Aboriginal Relationship to the Land The crux of the problem is that Aboriginal groups often have a different relationship to land than most people in Western common law jurisdictions. Many Aboriginal groups lived as nomads.16 However, this does not mean that they had no relationship to the land. They saw themselves as “custodians of the land” who had to preserve it for future generations.17 Furthermore, they did not only see the economic use of the land but considered it as a “crucial link with the Dreamtime and spiritual ancestors”.18 Hence, land played a crucial role in how the Aborigines defined themselves.19 However, such a relationship to land is at fundamental odds with the “clear-act” principle and especially with the “labour” principle.

From a Western perspective, the Aboriginal relationship to land created uncertainty 20 in possession claims because of the nomadic lifestyle of many Aboriginal groups. Furthermore, the Aborigines did not practice agriculture as the colonists but used the land very differently. 21 Consequently, the courts would have difficulties in finding “clear acts” of appropriation. As the Aborigines did not “mix their labour with land” as the settlers did through the practice of agriculture, the courts will struggle to reward an Aboriginal group for useful labour in Locke’s sense.

Thus it is submitted that one fundamental problem for Aboriginal possession claims is that Western common law jurisdictions follow a substantive rather than a formal interpretation of the

John Locke, Second Treatise of Government § 25, in Two Treatises of Government 327 (P. Laslett rev. ed. 1960) (1st ed. London 1690) as cited in Rose, op. cit., p. 73.

9 Rose, op. cit., p. 74.

10 Ibid., p. 77.

11 Brumagim v Bradshaw 39 Cal. 24, 1870 WL 827 (Cal.) 12 Ibid at 44.

13 Ibid.

8

“clear-act” principle and the “labour” principle. For it could be possible to interpret the way the Aborigines used the land (e.g. the performance of ritual ceremonies) as “clear acts”. It could also be asserted that because Aboriginal groups saw themselves as “custodians of the land” and accordingly preserved it, they “mixed their labour” with the land (although this would probably no longer correspond to Locke’s ideals). However, when considering past Aboriginal claims it will soon become clear that the courts do not follow such a formal interpretation which would allow much more Aboriginal claims to succeed.

Re Southern Rhodesia Aboriginal claims in the past should be considered because the reasoning that courts used in their judgements might also reveal their approach to a possession claim. The doctrine of terra nullius was especially important in deciding over Aboriginal claims. 22 This was a principle of international law which stated that when a sovereign state acquired territory which was terra nullius, i.e. land belonging to nobody, then “the law of the settler became the law of the newly acquired territory and all property vested in the occupying state”.23 In the past the courts attempted to somehow apply this doctrine because it would achieve the convenient result that the Aborigines had been governed by Australian law from the moment that the territory was colonised. In Re Southern Rhodesia 24 Lord Summer reached this result through

Rose, op. cit.,p. 82 Haslem v Lockwood 37 Conn. 500; 1871 Conn., (1871).

16 Shaunnagh Dorsett, “Land Law and Dispossession: Indigenous Rights to Land in Australia”, in Susan Bright & John Dewar, eds., Land Law: Themes and Perspectives (OUP, 1998), p. 287 17 Ibid.

18 Ibid.

14 15

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The Journal of Human Rights and International Law the following reasoning: Some tribes are so low in the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilised society […] It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. 25 Lord Summer was essentially saying that the Aboriginal tribes were so “uncivilised” that Australian law could not recognise any pre-existing rights. Consequently, the doctrine of terra nullius could be applied. Considering this reasoning, a possession claim of the Aborigines would have probably been rejected on the basis that the way the Aborigines used the land (e.g. for the performance of rituals) was irreconcilable with “the institutions or legal ideas [such as the “clear-act” principle] of civilised society”. This kind of reasoning was found in in Johnson v McIntosh 26 where one party argued that the Indians had not done any acts on the land (i.e. agriculture in the European sense) which could establish a proprietary right. 27 At this stage, one might argue that this reasoning no longer has any relevance, especially in light of the decision in Mabo v State of Queensland (No. 2) 28 which will be analysed later. It is submitted that although the courts no longer follow any directly racist reasoning as in Re Southern Rhodesia, the courts still have a lack of cultural awareness in regard to the Aboriginal relationship to land. It is important to look at the stronger forms of cultural unawareness as in Re Southern Rhodesia because they reveal the root of the problem in a more evident way.

Milirrpum v Nabalco The continued difficulties that judges had to understand the Aboriginal relationship to land is illustrated by the case of Milirrpum v Nabalco 29 . Blackburn J observed that the Aboriginal group in this case did not have an economic relationship to the land but a spiritual one. 30 They used the land for the performance of ritual ceremonies and other purposes. 31 However, Blackburn J held that this was not sufficient to establish that the claimants had a “right to use or enjoy the land” which was one of the criteria Ibid.

Rose., op. cit., p. 86.

21 Dorsett, op. cit., p. 287.

22 Alison Clarke & Paul Kohler, Property Law: Commentary and Materials (CUP, 2005), p. 141.

23 Ibid.

24 Re Southern Rhodesia [1919] AC 211 (PC).

25 Ibid., at pp. 233-234.

26 Johnson v McKintosh (1823) 21 US (8 Wheat.) 543.

he considered when deciding whether there is a proprietary right. The claimants also could not meet the other criteria and consequently their claim failed.

When Blackburn J asserts that the way the land was used does not suffice to establish a proprietary interest, one must ask what, according to his point of view, would actually be sufficient to achieve this end? Blackburn had previously analysed the economic relationship of the Aborigines to the land and found that the “clan had little significance in the economic sense.” 32 It seems logical to infer that if there had been more significance in the “economic sense”, the court might have decided in favour of the Aborigines. It seems obvious that Western common law jurisdictions will judge an action to have “economic sense” when it involves “mixing one’s labour” with something. This is very problematic for possession claims of Aboriginal groups as their claims would not succeed if they have a spiritual relationship to the land and do not follow the European agricultural model.

Mabo v State of Queensland (No. 2) In Mabo (No. 2), Eddie Mabo and four other claimants from the Meriam people sought judicial confirmation that their Aboriginal group had title over the Murray islands. 33 The court rejected the doctrine of terra nullius and held that “the Meriam people were ‘entitled as against the whole world to possession, occupation, use and enjoyment of (most of) the lands of the Murray Islands.”

This was a positive outcome for Aboriginal groups. However, it should be noted that the relationship the Meriam people had to the land resembled the Western conception of land use much more than previous claims (especially in comparison to Milirrpum v Nabalco). 34 The facts state that gardening was of great importance to the Merriam people.35 The produce was not only used for consumption but also for the performance of rituals.36 However, the purpose is not as relevant as is the fact that the Merriam people “mixed their labour with the land” on a continual basis. So this is in agreement with Locke’s labour theory.

Furthermore, the facts state that “Murray Islanders recognise the continuance of claims to garden plots and recognise or dispute claims of entitlement by individuals in respect of those plots.”37 Therefore, there were distinct claims to plots of land which people could accept or object to. This in agreement with the “clear-acts” principle. So the facts reveal that it was easier for the court to rule Rose, op. cit., p. 86.

Mabo v State of Queensland (No. 2) (1992) 175 CLR 1.

29 Milirrpum v Nabalco (1971) 17 FLR 141 30 Dorsett, p. 292 31 Milirrpum v Nabalco (1971) 17 FLR 141 at 272.

32 Ibid at 167-168.

33 Mabo v State of Queensland (No. 2) (1992) 175 CLR 1.

34 Dorsett, op. cit., p. 290.

19

27

20

28

27

The Journal of Human Rights and International Law in favour of the Merriam people than in previous cases. The case was not decided on the basis of first possession. Nevertheless, it has been shown that a possession claim would also have succeeded because the relationship of the Merriam people to the land corresponded to the Western substantive interpretation of the “clear-act” principle and the “labour” principle. Toohey J confirms this when he states that the Meriam people “may have acquired a possessory title on annexation” but he explained that it would be “no more beneficial” than native title in the present case. 38 A further problem is the value judgement the court made over Aboriginal claims in Mabo (No. 2) when it decided that an adverse grant from the Crown extinguishes native title. 39 The rationale behind this decision is that if a person has an estate in fee simple he has “exclusive possession”. 40 Therefore, the court argued that this also excluded the possibility of native title being superior to a Crown grant. 41 However, Dorsett indicates that the court decided to “elevate interests derived by Crown grant above those derived from custom or tradition” through this decision.42 This argument of the court is problematic for Aboriginal possession claims. For even if an Aboriginal group could succeed in establishing first possession by for example showing “clear acts” of appropriation in the Western sense, it is very likely that courts would consider the possessory title extinguished if there was an adverse grant by the Crown. The previously mentioned statement of Toohey that a possessory title would be “no more beneficial” than a native title confirms this assumption. The argument of the court in Mabo (No. 2) might sound appealing because it rests on the assumption that an interest which is granted by an authority that operates within a legal framework should be superior to any other interest. But not only does this reasoning disregard the historical argument that the Aborigines first occupied the land, but it also fails to recognize that the Aborigines also had their own “legal” framework which determined how land was allotted.43 So, one is essentially arguing that the Western legal system is superior to that of the Aborigines. This reinforces the argument that the courts have lack of cultural awareness when discussing Aboriginal claims to land.

Possible Solution Due to some of the difficulties that were analysed, Lokan Determination Pursuant to Reference of 27 February, 1986 by the High Court of Australia to the Supreme Court of Queensland to hear and determine all issues of facts raised by the pleadings, particulars and forther particulars in High Court action B12 of 1982, unpublished findings of fact by Moynihan), volume 1, at 110111 (cited in Dorsett, op. cit., p. 290).

36 Ibid.

37 Ibid at 178.

38 Mabo v State of Queensland (No. 2) (1992) 175 CLR 1 at 120.

39 Dorsett, op. cit., p. 294 40 Ibid.

41 Ibid.

35

submits that a pure first possession analysis will not assist Aboriginal claims. 44 Instead, courts should take other reasons into account.45 He suggests that courts might see it as a “denial of racial equality to fail to give legal effect to the Aboriginal perspective” or consider it important “to recognise and preserve the different cultural norms of Aborigines”. 46 Lokan draws attention to the decision of the majority in the Canadian case Delgamuukw v British Columbia 47 to consider “the pattern of land holdings under aboriginal law” when making a decision whether to recognise Aboriginal title. 48 He explains that this cannot be justified under a pure first possession analysis but only on the basis of other ideas as those suggested by him. 49 It is submitted that case law has indeed shown Aboriginal possession claims would have substantive difficulties in succeeding because the common law is entrenched in Western values which are often inconsistent with Aboriginal values. Consequently, the courts must take Aboriginal perspectives much more into account by not only changing the rhetoric as in Mabo (No. 2) but by making decisions which ensure Aborigines are no longer dispossessed by the law. 50 As this could result in a substantial change in the law, it might require Parliament to pass legislation so that the democratic legitimation for such a new approach is guaranteed.

The Native Title Act 1993 has proven ineffective in this regard.51

Conclusion It was established that the common law of first possession grants proprietary rights to those who have shown their intention to appropriate through “clear acts” and have “mixed their labour” with the land. Case analysis has shown that courts do not follow a formal interpretation of these principles but a substantive one that relies on Eurocentric values with a strong economic bias.

These are often inconsistent with Aboriginal values and more specifically with the Aboriginal conception of land use. Courts have demonstrated a lack of cultural awareness in deciding over Aboriginal claims. Consequently, possession would only support Aboriginal claims to ownership of land when the Aboriginal relationship to land largely corresponds to the common law perception of land use as in Mabo (No. 2). If more Aboriginal claims should succeed in the future, values such as the importance of preserving Aboriginal culture or the historic responsibility of ensuring equality in property law must be incorporated in the decisions of the court.

Ibid.

See for example Mabo v State of Queensland (No. 2) (1992) 175 CLR 1 at 173-4.

44 Andrew Lokan, “From Recognition to Reconciliation: The Functions of Aboriginal Rights Law” (1999) 23 Melbourne University Law Review 65, p. 79.

45 Ibid., p. 76.

46 Ibid.

47 Delgammuukw v British Columbia [1997] 3 SCR 1010 at 147.

48 Lokan, op. cit., p. 76.

49 Lokan 50 Dorsett, op. cit., 301.

51 For a more extensive analysis, see Dorsett, op. cit., p. 298 et seq.

42 43

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The Journal of Human Rights and International Law

The War On Terror:

A Study On The Experiences Of Women In Post-War Iraq

45

years ago, Iraq was seen as one of the most developed countries in the Middle-East, a leading example on human rights and a fast emerging economy. By 2001, however, the Western narrative on life in Iraq had over gone drastic change. Since the 1990 Gulf conflict, and in the lead up to the 2003 invasion, United States and European media had begun to paint Iraq as a country in desperate need of western intervention.

The war itself was given the codename ‘Operation Freedom’, and the lives of women played a powerful part in the justification of the so-called ‘War on Terror’. A year after American soldiers first set foot in Iraq, President George Bush claimed in a provocative speech that women were finally “learning the blessings of freedom”.1 The news was dominated by images of women ripping of their veils2 , fuelling the problematic illustration of America as the ‘protector’, implementing freedom and democracy in a way that was seen as unquestionably positive. However, there have been numerous challenges to this representation; asserting that these idealist images are very different from the reality.3 To be able to make meaningful advances in the status of women, it is important to try and understand just how conflict in Iraq has affected the experiences of the women living there.

To begin evaluating the impact of ‘The War on Terror’ on women’s lives, it is absolutely vital to be able to understand the history of the women’s movement in Iraq, and their circumstances under Saddam Hussein’s Ba’athist regime. The answer is one of complexity and conflict. Historically, during the 1970s and 1980s, Iraq maintained high literacy rates, with around 20% of adults being classed as illiterate.4 This is an especially impressive figure for the time when one considers a study published last year by the U.S. Department of Education and National Institute of Literacy, placing the most recent American figures of illiteracy at 14%.5 It’s not hard to find pictures of women in Baghdad during this time wearing mini-skirts and heels, not unlike their American counterparts, and conservative, religious and ethnic dress was far less popular in the cities.6 Gender equality was enshrined into the 1970 constitution and the legal demand that children of both sexes received at least a primary school education increased female literacy rates to around 75%; the highest it has ever been. 7 In his report for the Institute of Palestine Studies, Roger Bartram calls pre-war Iraq a ‘pluralistic’ society, also claiming that various

29

Kayleigh Wenham Kayleigh Studies History (BA) and is an aspiring journalist.

work programmes and legislation that focused on women, and reducing workplace harassment, increased female employment.

He points out that this was especially effective in healthcare, in which female employees accounted for 46% of the workforce.8 On the surface, it seemed like the beginning of Saddam’s regime signalled a time of change.

Despite these promising statistics, others have claimed that there were only modest changes to the personal status of women in Iraq under Saddam Hussein. His heavily policed state ensured that there was very little information about the extent of abuse and poverty suffered under his leadership. The Ba’athist government constructed 12 different police services, all with overlapping responsibilities, and neighbourhood families were often recruited to spy on their villages and towns, reporting anyone who spoke out.9 The most damning stories come from refugees who were forced to seek exile in other countries. So what is behind these two very conflicting testimonies? The Human Rights Watch claims that the status of women deteriorated rapidly after the Gulf War in 1991.10 This could possibly be due to the increasing threat of an uprising, prompted by international pressure and a humiliating defeat in Kuwait.11 There is very little denial that Hussein was a brutal man. In 1990, he sponsored the amendment of the Iraqi Penal code; making it harder to prosecute a man or family for carrying out ‘honour killings’.12 Rape was often used as a form of torture. There are personal accounts detailing the testimonies of women who claimed they raped by Saddam Hussein himself in the 1970s,13 and of the infamous ‘rape rooms’ in which one woman remembers guards “howling with laughter”14 whilst they tortured her and her baby. Hussein’s son, Uday, led the ‘Feda’iyee Saddam’ organisation which beheaded over 200 women that they

The Journal of Human Rights and International Law claimed to be prostitutes.15 There was an undoubted epidemic of violence against Iraqi women. So just how far has the transition from Ba’athist fascism to the Theocracy sponsored by America improved their personal and public status, and what is life like for women in Iraq today?

One of the central issues in Iraq is the sexual and reproductive rights of women. Abortion is, largely, still illegal unless the woman or the foetus is at serious risk. Even in these circumstances, a woman must receive written permission from her husband in order to proceed. These difficulties, along with the deterioration of healthcare in Iraq, has resulted in a high rise in the number of illegal abortions performed on women. This not only endangers the life of a woman, but poses serious mental and physical health risks throughout the rest of her life. Family planning is more widely available, with estimates that around 52.5% of women use some form of contraception.16 However, the lack of sexual education is particularly worrying, with only 2.6% of women showing a comprehensive knowledge of HIV and others STIs.17 UNICEF statistics show that around 68% of adolescent girls have given birth,18 and whilst most women have access to a hospital or midwife during labour, there has been an increase in the number of deformities in new-born babies since the coalition’s use of Chemical Weapons during the Gulf War.19 One of the biggest areas of concern is the valuation placed on virginity and male control over female sexuality. This is particularly damaging, as it results in women being encouraged to marry instead of pursue a career, and increasing threats of violent punishments if she is found to be sexually active. UNICEF places the number of women subjected to Female Genital Mutilation at around 8.1%, and 3.1% of children.20 However, this figure increases massively in rural areas, reaching around 60% of women and girls.21 The prevalence of FGM not only highlights the desire to control female sexuality, but the importance of sexual education, as in some communities, the practice is associated with misconceptions and fear of the clitoris and female anatomy.

These issues are closely linked to another area that is important to address; that of marriage and family life. It’s suggested that 20.7% of adolescent girls are currently married.22 9.4% of these girls were married by the time they were 15.23 Figures on domestic abuse are hard to evaluate as definitions of manipulative and controlling behaviour and emotional abuse can be hard to recognise, even for those in abusive relationships.

Fear of punishments may prevent many women from speaking out and thus statistics may be a lot lower than reality. However, reports conducted by the Republic of Iraq Family Health Survey show that 83.1% of women reported their husbands exhibiting controlling behaviour, 33.4% reported emotional abuse and 21.2% reported physical violence, with 13.9% reporting physical

abuse during pregnancy.24 Another major area of concern is the increase in so-called ‘pleasure marriages’; a form of marriage specified under Shia practice in which an unmarried woman is contracted to a man for so many years before being released. This is often used as a legal cover for forced prostitution and sexual slavery, of which 65% of victims are under the age of 18.25 Another problematic issue is that of forced polygamous marriages. Laws on polygamy were recently relaxed in Iraq, but figures are shaky, ranging between 2-11.5%.26 This is also an area that needs to be combatted, as women who are forced into polygamous marriages often suffer emotionally and physically from neglect.

This troubling personal status of women could also be linked to the increasing amount of violence against Iraqi women.

Returning to the previous issue, a 2013 Human Rights Watch report observed that the economic hardships affecting women has made them particularly vulnerable to becoming involved in prostitution and sex trafficking. They included events such as the loss of husbands, displacement, war and economic sanctions as especially damaging.27 Although there has been government effort to uncover sex rings and brothels, there is a serious lack of prosecution against traffickers. Instead, women are often punished. The Organisation of Women’s Freedom in Iraq noted that prostitution, especially in the larger cities, can lead to a dependency on drugs and increasing use of violence against women. They also pointed out that many of these women feel like they cannot go home for fear of being punished or killed by their families, and thus this often ends in a vicious cycle of imprisonment and dependence on prostitution. It is clear the justice system does not do enough to protect vulnerable women. As mentioned earlier, domestic violence remains a stagnant issue. A Family Violence Bill was passed in 2011 but the implementation is poor and so far there has been no evidence to suggest it has helped reduce the problem. The government also needs to play a larger role in helping women who face violence both inside and outside the home. So has the threat of violence against women decreased during or after the Iraq war? Figures suggest otherwise. Honour killings increased massively after the start of the Gulf War in 1991 and onwards, as has the number of kidnappings forcing women and girls into marriages and sex trafficking since 2003. Even the ‘rape rooms’ and torture used by the U.S. to help justify invasion did not disappear; there were various incidents of the mass killings of women in the Southern cities of Basra and Umara between 2006 and 2008.

In 2004, Amnesty International brought attention to the Abu Ghraib prison scandal, where it was revealed women had been blackmailed, tortured, raped and murdered- but this time at the hands of American soldiers.

30

The Journal of Human Rights and International Law This also affects the public and political life of women. High profile assassinations have forced many activists into hiding, and thus violence has acted as a form of political intimidation.

One of the key elements to understanding the experiences of women in Iraq is being able to assess the impact of politics on their lives. There are some promising factors, such as the creation of the Minister of Women’s Affairs and the statistic that 25% of seats in parliament are held by Iraqi women. Some of these women, such as Vian Dakhil, who is the only member of Yazidi origin, have received international recognition for their progressive work. However, the Women’s Affairs department has achieved very little since it was set up in 2003. One of the first ministers was supposedly recorded saying that she was “against the equality between men and women” and with a budget of only $2,000 a month, another resigned in protest because the lack of resources prevented her from implementing any useful policies.

Another issue of major controversy is the Personal Status Law. The original bill was abolished in 2003, prompting a number of protests as it had been seen to be favourable to, and protect, many women. It was later replaced by a new law, the effect of which has been brought to question as its contents- such as allowing girls as young as the age of 9 to be married- have been viewed as problematic. The need for the Iraqi parliament to improve at representing women is clear; they have been disproportionately affected by conflict in recent years, and yet over 8 million women around the country lack any government funding or subsidies, leaving them in poverty.

In such a religion-dominated society, some have even gone so far as to accuse Iraqi politicians of using religious arguments to curb the political rights of women. It could be argued that the policy of confessionalism seen in Iraq’s parliament exceeds any gendered issues and thus is damaging to the status of women.

It is important, however, to distinguish that many of these laws do not derive from Sharia law or a direct understanding of the Qur’an, but of Fiqh jurisprudence that merely represents a human interpretation of divine code. The influence of religion on Iraqi public policy can be seen in the recent Iraqi constitution which states that no law may be passed if it contradicts Islamic belief. However, this is complicated by the credence of regional law, which has the constitutional capacity to override federal law, meaning that the rights of women vary greatly depending on region. Furthermore, one might argue that it is too reactionary to blame religion, and that the issue lies instead in the perversion of Islamic faith to propagate oppression. One of the issues that is frequently brought up in western media is that of religious dress. There has been a huge increase in the use of the veil since 2003, which opens up a very complicated issue. There has been intensifying pressure from extremists for women to dress more conservatively; one story details two women who were beaten

31

and had their heads shaven in public for not wearing the hijab in 2006, but it is also a conscious choice for many women to wear conservative dress. The social and religious implications of choosing to do this are so high that other governments have banned female public officials from wearing the hijab or the veil.

It’s important not to forget that many women choose to practice Islam freely, and Islamic feminists often focus on religion when making their arguments; very much in the same way that Mary Wollstonecraft referred to passages of the bible in The Vindication of the Rights of Woman.

Another important area to assess is that of female participation in education and the workforce. Throughout Iraq, significantly less girls attend school than boys. Figures show that 92.7% of male children attend primary school, but only 87% of female children.

This gap considerably worsens when they reach secondary school, with 52.5% of boys attending school but only 44.6% of girls. This in turn, along with the lack of non-formal education programmes, has had a profound effect on illiteracy rates. The national figure for Iraq is around 30%, but women’s illiteracy rates reach around a third, and up to 47% in some rural areas. It is also clear that rural areas are disproportionally affected, with only 4% of children completing their education. In urban areas, 11.3% of women receive no education, but this jumps to 29.2% in rural areas. It’s clear that education is an aspect of Iraqi life that needs serious attention. Violence and extremism have also had a negative impact on higher education in Iraq. In 2006, there was such a large number of kidnappings and assassinations that female members of university faculties refused to return to work.

The threats from Islamic extremists forced women in education to wear conservative dress and attendance dropped by over half.

This lack of education and training may prevent many women from being able to reach higher positions in the workforce, where figures on female employment are even more worrying. Again, we see a gap between the rural and urban areas in Iraq but in a very different light. Whilst 88.1% of women living in cities and urban areas are not working, the figure for rural areas is slightly lower at 83.9%. However, the quality of jobs for women who do work in these areas is very different. 5.7% of women working in urban areas are in professional jobs, but only 1.9% in rural Iraq, where jobs tend to be more market and agriculturally based.

There are a number of factors that may have impacted the female workforce. Fore mostly, as the economy began collapsing in the 1990s, women often found themselves pushed out of the labour force to guarantee jobs for men. Furthermore, in 2000, laws were passed restricting women from working outside of their homes, having a significant effect on the type of work women could become involved in. Another factor to consider is the price of work, as wage inequality has become a serious problem.

One author estimates that a female civil servant earns in one

The Journal of Human Rights and International Law month around a tenth of the price of a pair of shoes. The lack of work for women also has a negative impact on young children in Iraq. The high death rate of men and women being widowed has resulted in more and more young boys being forced to become breadwinners for the family, often at the expense of their educations. Once again, the threat from extremism has impacted this greatly because of the restrictions on freedom of movement; the risk of IUDs has discouraged many men and women from travelling outside of their homes.

Lastly, we must consider the direct effect of the Iraq War and International conflict on Iraqi women. The Human Rights Watch claims that United Nations sanctions in the 1990s disproportionately affected women and children in Iraq. With a death rate of between 5,000-7,000 children a day at the lowest, it’s clear that economic sanctions did very little but hurt the lives of the most vulnerable members of society. These figures are only the very lowest estimate, it’s impossible to gauge how many young babies died of malnutrition and disease as a result of the sanctions, as rural births aren’t often recorded immediately. There are numerous reasons for these distressing statistics. Firstly, the breakdown of the health care system in Iraq during the 1990s, prompted by international sanctions, meant there was very little support for mothers and their children. The low use of breast feeding also led to a dependency on formulas, many of which were contaminated, sometimes by chemicals used during the Gulf War. The United Nations response to the growing poverty was poor and ignorant; the oil-for-food programme allocated only grains and legumes to families, and the lack of meat, dairy, vitamins and minerals were starkly insufficient for the development of a child. This resulted in the deflation of currency, and a high rise in the cases of malnutrition, of which 25% was

Citations

1 Speech given at conference on International Women’s Day, March 2004 2 Jill Steans (2008) Telling Stories about Women and Gender in the War on Terror, Global Society, 22:1, 159-176, DOI: 10.1080/13600820701740795 3 Ibid.

4 UNESCO. Literacy and Non-Formal Education in Iraq.

Available: http://www.unesco.org/new/en/iraq-office/education/ literacy-non-formal-education/. Last accessed 26th Feb 2015.

5 NCES. (2003). National Assesment of Adult Literacy. Available: http://nces.ed.gov/naal/kf_demographics.asp. Last accessed 26th Feb 2015.

6 Bartram, R (1991). Reflections on Human Rights Issues in PreWar Iraq. University of California: Journal of Palestine Studies.

89-97.

chronic. Women also faced violence, death and displacement as a result of the ongoing conflict. The dehumanisation of anyone identified as ‘Arab’ or ‘Muslim’ post 9/11 has led to an increasing amount of abuse at the hands of American soldiers involved in the war. Although, after the war, the American government allocated a modest sum of $10 million in reconstruction funds to women, it failed to address many of the key issues women in Iraq face today, such as domestic abuse.

Conclusively, these are only some of the main areas of concern for women in Iraq today. It’s clear that the status of women in Iraq has deteriorated rapidly since the 1990s. As the economy began looking uncertain and Saddam Hussein struggled for power, the gains women had made legally in terms of their rights and status was slowly eroded. The replacement of bills such as the personal status law with Sharia and Fiqh law reflected a reversion to religious and tribal traditions through the manipulation of kinship and gender constructs. The effect that U.N Sanctions and the Gulf War disproportionally affected women. The U.S. Invasion of Iraq left over 2 million Iraqi women widowed, and although it initially seemed a cause for hope, the threat of violence has increased rather than decreased. Politically, women hold 25% of the seats in the Iraqi parliament, but this has so far done little to improve their everyday lives. There have been claims that these women are submissive to their male peers and families, voting along the status quo and that they do not represent the voice of everyday women in Iraq. The evidence suggests that the biggest set-back began in the Iran-Iraq war, and the status of women has diminished ever since. The American invasion has not helped this in any way, but made the country and thus the woman’s movement more unstable.

7 Ibid.

8 Ibid.

9 Bartram, R (1991). Reflections on Human Rights Issues in PreWar Iraq. University of California: Journal of Palestine Studies.

89-97.

10 Human Rights Watch Report. (2003). Background on Women’s Status in Iraq Prior to the Fall of the Saddam Hussein Government . Available: http://www.hrw.org/legacy/backgrounder/wrd/iraqwomen.pdf. Last accessed 26th Feb 2015.

11 Sarah Smiles. (2008). ON THE MARGINS: WOMEN, NATIONAL BOUNDARIES, AND CONFLICT IN SADDAM’S IRAQ. Available: http://www.tandfonline.com/doi/ pdf/10.1080/10702890802073241. Last accessed 26th Feb 2015.

12 Global Justice Centre. Invisible and Silenced Women.

32

The Journal of Human Rights and International Law Available: http://www.globaljusticecenter.net/index.php?option=com_ mtree&task=att_download&link_id=173&cf_id=34.

Last accessed 26th Feb 2015.

13 Ibid.

14 Ibid.

15 Ibid.

16 UNICEF. (2013). The State Of The World Children Report.

Available: http://www.unicef.org/infobycountry/iraq_statistics. html. Last accessed 26th Feb 2015.

17 Ibid.

18 Ibid.

19 Nadje Sadig Al-Ali (2009). What Kind of Liberation? Women and the Occupation of Iraq. Los Angeles: University of California Press. 1-67.

20 UNICEF. (2013). The State Of The World Children Report.

Available: http://www.unicef.org/infobycountry/iraq_statistics. html. Last accessed 26th Feb 2015.

21 Zuhur, S.D. (2007). Iraq, Women’s Empowerment and Public Policy. Strategic Studies Institute. 1 (1), 1-56.

22 UNICEF. (2013). The State Of The World Children Report.

Available: http://www.unicef.org/infobycountry/iraq_statistics. html. Last accessed 26th Feb 2015.

23 World Health Organisation. (2006/7). Republic of Iraq Family Health Survey Report . Available: https://webspace.princeton. edu/users/esocweb/ESOC%20Iraq/IFHS_2006_2007.pdf. Last accessed 26th Feb 2015.

24 Ibid.

25 Organisation of Women’s Freedom in Iraq. (2010).

Prostitution and Trafficking of Women and Girls in Iraq.

Available: http://www.equalityiniraq.com/images/stories/pdf/ prostitutionandtrafficking-OWFIreport.pdf. Last accessed 26th Feb 2015.

26 Zuhur, S.D. (2007). Iraq, Women’s Empowerment and Public Policy. Strategic Studies Institute. 1 (1), 1-56.

27 Human Rights Watch . (2013). World Report 2013. Available: https://www.hrw.org/sites/default/files/wr2013_web.pdf. Last accessed 26th Feb 2015.

28 Organisation of Women’s Freedom in Iraq. (2010).

Prostitution and Trafficking of Women and Girls in Iraq.

Available: http://www.equalityiniraq.com/images/stories/pdf/ prostitutionandtrafficking-OWFIreport.pdf. Last accessed 26th Feb 2015.

29 Human Rights Watch . (2013). World Report 2013. Available: https://www.hrw.org/sites/default/files/wr2013_web.pdf. Last accessed 26th Feb 2015.

30 Human Rights Watch Report. (2003). Background on Women’s Status in Iraq Prior to the Fall of the Saddam Hussein Government . Available: http://www.hrw.org/legacy/backgrounder/wrd/iraqwomen.pdf. Last accessed 26th Feb 2015.

33

31 Zuhur, S.D. (2007). Iraq, Women’s Empowerment and Public Policy. Strategic Studies Institute. 1 (1), 1-56.

32 Organisation of Women’s Freedom in Iraq. (2010).

Prostitution and Trafficking of Women and Girls in Iraq.

Available: http://www.equalityiniraq.com/images/stories/pdf/ prostitutionandtrafficking-OWFIreport.pdf. Last accessed 26th Feb 2015.

33 Kurdistan Tribunal Interview 34 Zuhur, S.D. (2007). Iraq, Women’s Empowerment and Public Policy. Strategic Studies Institute. 1 (1), 1-56.

35 Ibid.

36 Mir-Hosseini, Z. (2006). Muslim Women’s Quest For Equality; Between Islamic Law and Feminism. Critical Enquiry . 32 (4), 629-645.

37 Ibid.

38 Ibid.

39 Ibid.

40 UNICEF. (2013). The State Of The World Children Report.

Available: http://www.unicef.org/infobycountry/iraq_statistics. html. Last accessed 26th Feb 2015.

41 UNESCO. Literacy and Non-Formal Education in Iraq.

Available: http://www.unesco.org/new/en/iraq-office/education/ literacy-non-formal-education/. Last accessed 26th Feb 2015.

42 Ibid.

43 Ibid.

44 Zuhur, S.D. (2007). Iraq, Women’s Empowerment and Public Policy. Strategic Studies Institute. 1 (1), 1-56.

45 World Health Organisation. (2006/7). Republic of Iraq Family Health Survey Report . Available: https://webspace.princeton. edu/users/esocweb/ESOC%20Iraq/IFHS_2006_2007.pdf. Last accessed 26th Feb 2015.

46 Ibid.

47 Human Rights Watch Report. (2003). Background on Women’s Status in Iraq Prior to the Fall of the Saddam Hussein Government . Available: http://www.hrw.org/legacy/backgrounder/wrd/iraqwomen.pdf. Last accessed 26th Feb 2015.

48 Halliday, J. (1999). The Impact of U.N. Sanctions on the People of Iraq. Journal of Palestine Studies. 28 (2), 29-37.

49 Halliday, J. (1999). The Impact of U.N. Sanctions on the People of Iraq. Journal of Palestine Studies. 28 (2), 29-37.

50 Ibid.

51 Ibid.

52 Helie, A. (2005). The U.S. Occupation and Rising Religious Extremism: The Double Threat to Women in Iraq. Available: http://popdev.hampshire.edu/sites/default/files/uploads/u4763/ DT%2035%20-%20Helie.pdf. Last accessed 26th Feb 2015.

53 Zuhur, S.D. (2007). Iraq, Women’s Empowerment and Public Policy. Strategic Studies Institute. 1 (1), 1-56.

The Journal of Human Rights and International Law

What Separates Public Diplomacy from Propaganda?

Kevin Dawid

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o some, public diplomacy and propaganda are one and the same. Whether because of cynicism, indifference, or ignorance, the two terms are seen as interchangeable synonyms or euphemisms. For those inclined to look a little more closely, however, there are significant differences. Public diplomacy is intended to facilitate communication and interactions with foreign peoples or groups in order to present a state’s values and policies in the best light. While propaganda also desires to shape opinions, it does so without regard for feedback, debate, or dissent, instead attempting to create and enforce a certain mindset regardless of the audience’s own thoughts or preferences.

Therefore, while both are intended to influence opinion, there are differences that make public diplomacy markedly dissimilar to propaganda.

In order to understand the relationship between these two terms, their respective meanings must first be understood. The phrase “public diplomacy” in its modern sense was first coined

by Edmund Gullion, Dean of the Fletcher School of Law and Diplomacy at Tufts University in 1965, though it had been used in various contexts before then.1 Jan Melissen was able to succinctly boil the concept of public diplomacy down to “the relationship between diplomats and the foreign publics with whom they work”.2 Here we have the first element of public diplomacy, that is, the interaction between governments (or their agents) and foreign peoples and groups. If we also look to Joseph Nye Jr., who is most famous for his work regarding “soft power”, he adds that public diplomacy is not “merely public relations campaigns. Conveying information and selling a positive image is part of it, but public diplomacy also involves building longterm relationships that create an enabling environment for government policies.”3 This reinforces the vital element of public diplomacy that so clearly differentiates it from propaganda: it is designed to acknowledge and even encourage comments and questions, in the interest of building a lasting and mutually beneficial relationship.

Propaganda, on the other hand, quite clearly has no such intent.

With a more narrow focus and purpose, propaganda informs its audience without allowing for a meaningful dialogue.

Nicholas Cull, “’Public Diplomacy’ Before Gullion: Evolution of a Phrase”, 18 April 2006, USC Center on Public Diplomacy.

2 Jan Melissen, The New Public Diplomacy: Soft Power in International Relations, (Palgrave Macmillan, 2005), p. xx.

1

Kevin Dawid is a second-year student in the War Studies & History joint honours programme. He is a veteran of the United States Marine Corps infantry, and has an interest in the ongoing conflict in the Middle East and global military engagements in general, and historical periods from ancient Rome to the Middle Ages.

Nicholas Cull states flatly that propaganda “tries to tell people what to think. Information and education are concerned with broadening the audience’s perspectives and opening their minds, but propaganda strives to narrow and preferably close them.”4 This, of course, is in direct contrast to the avowed openmindedness of public diplomacy. We might also more closely consider the purpose driving propaganda’s singular message.

For that, we can turn to David Welch, who explains that propaganda is “the deliberate attempt to influence the opinions of an audience through the transmission of ideas and values for a specific purpose, consciously designed to serve the interest and values of the propagandists and their political masters, either directly or indirectly.”5 This definition adds the further layer that propaganda is primarily designed to serve a political end. It therefore stands that propaganda is a unidirectional message meant to transmit an idea or value to an audience in the furtherance of an ultimately political goal.

Clearly there are some overlaps between the two phrases.

Both refer to the transmission of ideas or values from some governmental or official source to the public, likely with a political agenda. Certainly this is enough for some people to conflate the two without question. Kenneth Osgood, for example, in his entry on “Propaganda” for the Encyclopedia of American Foreign Policy, lists a collection of euphemisms for the term, informing us that “during the Cold War, common phrases also included… ‘battle for hearts and minds’… ‘war of words,’ and others… Later, the terms… ‘public diplomacy’, ‘psychological operations’… and ‘information warfare’ became fashionable.”6 The familiarity of these phrases to those of us who have witnessed the discussions Joseph Nye, Jr., “Public Diplomacy and Soft Power”, The Annals of the American Academy of Political and Social Science, vol. 616, no. 1 (2008), p. 101.

4 Quoted in Melissen, “Public Diplomacy”, p. 18.

5 Ibid., pp. 16-7.

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The Journal of Human Rights and International Law surrounding the campaigns in Iraq and Afghanistan should certainly illustrate the timelessness of this topic. Even former diplomat Richard Holbrooke, twice U.S. Assistant Secretary of State, declared cynically: “Call it public diplomacy, or public affairs, or psychological warfare, or – if you really want to be blunt – propaganda.”7 In such opinions public diplomacy and propaganda are two names for the same thing, or at least are so similar that separation of the two is a mere question of semantics, and a moot point when speaking practically.

From a very narrow perspective, this may be correct. However, failure to distinguish between different characteristics that are there for the finding does not clarify an issue, but instead obscures and confuses it. To people uninterested in the distinction (whether that disinterest is feigned or real), one car is the same as any other so long as it gets them “from Point A to Point B”.

While this is true on the surface, it should be easy to see that there is quite a measureable difference between a Mini Cooper and a Lamborghini: they present different capabilities, entail different costs, and will almost certainly elicit different reactions from people who encounter them. For the same reasons, public diplomacy and propaganda can and yet should not be considered the same.

The difference is not merely cosmetic: specificity allows greater precision and nuance in understanding methods and goals. If public diplomacy and propaganda are the same, then there is no distinction between a government inundating its citizens with rhetoric and an outreach programme meant to explain and answer questions about official policy. Differentiating between the two enables us not only to more accurately identify a certain action with the appropriate label; it also guides our understanding of the motivation behind it. To emphasize and expand upon this point we can return to Nye: “Skeptics who dismiss public diplomacy as a mere euphemism for propaganda miss the point. Simple propaganda often lacks credibility and thus is counterproductive to public diplomacy. Good public diplomacy has to go beyond propaganda.”8 People instinctively reject attempts to push certain ideas on them without respect to their own opinions. This occurs in reaction to such perceived attempts whether they have been labelled as “propaganda” or not; even if such an attempt is called something else, most people in recognizing it will not hesitate the invoke the name of “propaganda”.

It should be noted that Gullion himself originally preferred the term “propaganda” to “public diplomacy”. In describing how the matter was settled, he said:

Osgood, Kenneth, “Propaganda”, in Alexander DeConde, Richard Dean Burns, and Frederik Logevall (eds.), Encyclopedia of American Foreign Policy (Scribner, 2001).

7 Holbrooke, Richard, “Get the Message Out”, Washington Post 28 October, 2001.

8 Nye, “Public Diplomacy and Soft Power”, p. 101.

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Even beyond the organ of the Government set up to handle information about the United States and to explain our policies, what is important today is the interaction of groups, peoples, and cultures beyond national borders, influencing the way groups and peoples in other countries think about foreign affairs, react to our policies, and affect the policies of their respective governments. To connote this activity, we at the Fletcher School tried to find a name.

I would have liked to call it ‘propaganda.’ It seemed like the nearest thing in the pure interpretation of the word to what we were doing. But ‘propaganda’ has always had a pejorative connotation in this country. To describe the whole range of communications, information, and propaganda, we hit upon ‘public diplomacy’. 9 This is revealing in two important ways. The first is that the term “propaganda” seems to have been passed over largely because of negative implications associated with the word, resulting in the choice of the more neutral and (at that point) rarely-used “public diplomacy”. This would seem to support the idea that the two concepts are the same, and that “public diplomacy” is simply a more palatable euphemism for the toxic “propaganda”. However, Gullion does not state that this was a rebranding of “propaganda”, but rather that a newly-defined set of activities was in need of a label and that the term “propaganda” was unacceptable due to existing conceptions. That these connotations were negative was important for the purpose of wanting to be able to achieve a positive effect with the term and its described activities, but it is immaterial to attempts at differentiation. The aims and methods outlined by Gullion required a name, and “propaganda” was already in use and saddled with implications; the fact that an entirely different term was chosen shows the importance that this new concept of “public diplomacy” keep its distance from the existing meaning of “propaganda”.

The second point, somewhat more subtle than the first, is Gullion’s decision to include propaganda as part of the definition for public diplomacy, rather than to maintain the two as synonymous. In so doing he made the implicit distinction that the two terms are not equal and interchangeable, but rather that propaganda is a fractional part of a range of activities that make up public diplomacy. Propaganda therefore can be a distinctly separate method subordinate to public diplomacy, or one characteristic element incorporated into that broader term.

A rereading of Gullion’s final statement with the latter view in mind, in fact, returns us to our working definition of public

Quoted in John Brown, “Public Diplomacy & Propaganda: Their Differences”, American Diplomacy.

10 DipNote, “#AskJen Psaki: @StateDeptSpox Answers Your Questions on Twitter”, U.S. Department of State Official Blog, 13 February, 2015.

11 Lichtenstein, Jesse, “Digital Diplomacy”, The New York Times 16 July, 2010.

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The Journal of Human Rights and International Law that leads them to trust the information they are receiving and send their own questions, suggestions, and information.

Examples of successful public diplomacy are found outside Washington, D.C. as well. Faced with decreasing membership in the Catholic Church, Pope Francis has surged in popularity in part by enacting effective public diplomacy: interacting widely with people, listening and responding to their concerns, and demonstrating a commitment to honesty and values that haves earned widespread support and respect from people irrespective of their religion.12

diplomacy: that it is a two-way interaction (communication) meant to favourably impart ideas and values (information) of a government by affecting the opinions of the non-governmental audience (propaganda).

The crucial differences between public diplomacy and propaganda are their methods and aims . Public diplomacy’s desire for reciprocal interaction is essential because it creates more genuine and lasting goodwill with its audience. Yet another vital aspect of this approach is that the feedback it encourages can greatly improve and strengthen future outreach efforts, especially over the long term. The U.S. Department of State’s recent Twitter Q&A using the hashtag #AskJen provided Twitter users from across the globe to submit questions to Spokesperson Jen Psaki.10 For obvious reasons, programmes like this cannot possibly address all the questions asked; they even raise the possibility of filtering in a way that would limit genuine public interaction to a level nearing propaganda. However, acknowledging difficult or contentious issues easily alleviates such concerns: this not only provides needed commentary on important policies but also reassures public opinion that the platform for communication is genuine and sincere.

Social media demonstrates the potential for the inclusiveness of public diplomacy. Unlike propaganda, which must be carefully controlled to minimize or eliminate dissenting viewpoints that would undermine the intended message, public diplomacy thrives on open channels of communication. The #AskJen Twitter campaign is just the latest example of recent State Department efforts to grow its online and social media presence, yet it is hardly the only one.11 This again serves the dual purpose of public diplomacy: besides informing the audience of policies and objectives, it encourages a closer rapport with the audience

Examples of propaganda are equally pervasive, though they tend to be more obvious as propaganda in hindsight. Likely the most easily recognized efforts at propaganda in the West are posters and films from the two World Wars. Often emphasizing a sense of urgency and obligation, they impart a message that the viewer is meant to believe without question. This raises yet another difference between public diplomacy and propaganda: while public diplomacy engages an audience in some level of conversation about a topic in order to come to understand and improve outlooks, propaganda forgoes this intellectual approach and strikes at visceral, emotive levels. Thus, wartime posters tap into a sense of fear of, or anger at, the enemy. Likewise, Cold War efforts such as Radio Free Europe and Radio Liberty aimed to stir distrust toward Soviet hegemony.

Though these examples were meant to elicit negative emotions— fear, anger, distrust—propaganda could and can be used to create positive reactions as well. During both World Wars, many examples of propaganda were meant to evoke patriotism, courage, and a sense of duty or honour, by emphasizing military service or other contributions to the war effort without mentioning the enemy to be defeated or feared. Despite the positive, uplifting messages of this type of propaganda, it still fits the definition as we have determined it: it was an official message meant to impart an idea or value in order to shape a person’s opinions in such a way that the message would not be questioned. By seeking to trigger emotional responses, good or bad, propaganda aims to create self-evident or self-reinforcing messages that inherently discourage dissent. Wartime propaganda is the perfect example of this: questioning it would seem treasonous and self-destructive, and it is therefore accepted and absorbed at face value.

From these definitions, arguments, and examples, we can see different views of the terms “public diplomacy” and “propaganda”.

Some theorists and even practitioners minimize, ignore, or simply

Willey, David, “Popular Pope Francis takes own pat in the Vatican”, BBC News, 24 December 2014.

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The Journal of Human Rights and International Law

do not acknowledge a difference between the two, suggesting that they are either interchangeable or that “public diplomacy” is a disingenuous way to mask attempts at what is truly propaganda.

It is clear, however, for those who do care to look, not only that a difference exists, but also that the establishment of distinction is absolutely necessary. The argument in defence of this is selfreinforcing: there are clearly different methods of engaging with public audiences that are respectively reciprocal and unidirectional. So long as two diametrically different approaches exist, they must have different labels to separate them, which have taken root as “public diplomacy” and “propaganda”. The

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definitions that each of these terms has adopted, therefore, are opposing and unequal, and to use them interchangeably is inaccurate and misleading. Despite some cosmetic similarities in their goals or circumstantial overlap in their methods, there is a clear and essential difference: public diplomacy is meant to engage with an audience, while propaganda simply targets them.

The Journal of Human Rights and International Law

Commitment and Specialization: The Keys to Revitalizing the European Union’s Eastern Partnership While the goal of the European Union’s European Neighborhood Policy (ENP) is to form a stable and integrated Europe, the EU’s hazy and noncommittal attitude towards the regions in Eastern Europe has stifled significant progress. Although the policy was crafted over ten years ago in 2004, corruption and informal economic practices are still entrenched in the actions and governments of several Eastern European countries. Each nation’s experience has been unique; Moldova and Georgia successfully cleansed their societies and institutions of substantial amounts of corruption. In contrast, fraud and bribery are still embedded within the political systems of Armenia and Azerbaijan. Other countries rest delicately in the middle of these two extremes.

Because of the individual situation of each country, it is crucial that the EU restructures its ENP policy in order to individually accommodate each nation. While the implementation of market economies and democratic policies is crucial, the citizens also need to endorse a culture of legitimacy.

This paper will examine the European Union’s Eastern Partnership (EaP), which is a part of the broader neighborhood policy. The initiative concerns the economic and political integration of six post-Soviet states: Moldova, Georgia, Ukraine, Belarus, Armenia, and Azerbaijan. Utilizing qualitative techniques, this essay will outline the variances and similarities of the countries’ economic needs and their democratic progress. While the EU tantalizes these countries with the idea of EU membership, each country’s path towards the alleviation of corruption needs to be exclusively designed; if these initial measures are successful, admission into the EU becomes a plausible option.

Introduction While the European Union’s Eastern Partnership (EaP) exhibits some verisimilitude at the outset, its current structure is fundamentally flawed. The six countries in the initiative possess a multiplicity of different economic and political interests, and each nation has a distinct relationship to democracy. Though each one of these countries illustrates a distinctive degree of commitment to European values, the EaP condenses the needs of these six countries into one initiative.

While the policy is broadly applied to each country, it also

Sabrina Manfield Sabrina Manfield is an American student pursuing a Joint MA in Global History at King’s College London and Georgetown University.

She received her undergraduate degree in History and Government from the College of William and Mary in Williamsburg, Va.

provides the possibility for each country to enter into a bilateral relationship with the EU, known as an Association Agreement (AA). Policy analyst Kataryna Wolczuk argues, “The negotiations of the AA instill a stronger sense of purpose, focus and dynamism into bilateral relations.” These agreements illustrate the EU’s legal commitment to integrating the East into the EU; in particular, the countries’ incorporation into the Deep and Comprehensive Free Trade Areas (DCFTA) agreement, which is an essential part of the AAs, illuminates the EU’s dedication to creating an integrated Europe. Nevertheless, in order to establish an AA, which does not promise EU membership, a country must meet high standards of transparency and democracy. This paper will discuss the delicate distinctions among these six countries, revealing the shortcomings of the current umbrella policy towards these postSoviet states. The countries will be presented in pairs in order to develop fruitful comparisons among the states, and they will be analyzed as entities of the broader partnership.

Moldova And Georgia Progressing positively towards European integration, Moldova and Georgia each signed Association Agreements (AAs) in 2014.

The ratification of these documents indicates that both Moldova and Georgia agree to follow EU standards, including customs procedures, quality assurance, and market fluidity. While these two nations each made the same commitment, it is important to examine their unique economic and political circumstances.

Moldova is frequently considered to be the poorest country in Europe and as a result, the attention that the region requires differs from other regions in the Eastern Partnership. Roughly

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The Journal of Human Rights and International Law half of Moldova’s trade is with the EU, which suggests that the region’s fragile economy and its financial future rely heavily on the rest of Europe. Because Moldova’s economic success is closely intertwined with the EU’s markets, Moldova’s commitment to the organization is irrefutable. Moldova has made significant improvements in terms of election conduct regulations and human rights, and the EU’s attention and economic assistance will help them to implement further amendments. In terms of its culture and history, Moldova is much closer to EU member Romania than to Georgia; however, because of the unsettled conflict in Transnistria, which is replete with Russian separatists, establishing a firm democratic foundation throughout the entire region will be a challenge.

In terms of its commitment to westernization, Georgia’s efforts have closely paralleled that actions of Moldova; however, geopolitically and economically, Georgia’s development is substantially more important to the EU. Because of Georgia’s proximity to Azerbaijan and Central Asia, which are major energy exporters, Georgia provides an important bridge between Europe and Asia. Additionally, because of erratic relationships between the EU and Russia, having an alternative energy source is critical for Europe. This striking economic difference must be taken into account as the EU begins to restructure its policies towards Eastern Europe, and the EU needs to continue to nurture its relationship with Georgia.

While economically Georgia is both stronger and more influential than Moldova, both regions have had similarly tumultuous histories with Russia. Russian-separatists have had total control of South Ossetia and Abkhazia since August 2008.

As a consequence, it is clear that Georgia and Moldova each face comparable challenges pertaining to internal conflict and Russian influence. Furthermore, the factious regions of Transnistria, South Ossetia, and Abkhazia illuminate the simmering tensions that exist between these two countries and Russia; as a result, Moldova and Georgia are highly likely commit themselves fully to the Europeanization process if they are provided with sufficient resources.

Ukraine and Belarus In terms of its democratic progress, Ukraine is more analogous to Georgia and Moldova than to Belarus. In March 2014, past Ukrainian President Viktor Yanukovych signed the political section of the association agreement and in June 2014, President Petro Poroshenko signed the economic part. Economically, the agreement benefits both regions because it promotes the continuation of natural gas and grain imports from Ukraine to the West and stimulates foreign investment in Ukraine;

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nonetheless, the agreement has caused deep contention in Ukraine, as the eastern section of the country does not support the new regulations. Additionally, while Moldova and Georgia have tensions with Russia, the violence in Donetsk and Luhansk is much more extreme and requires a highly specialized policy.

The Association Agreement does not adequately consider the current brutalities, and the EU’s solution was to postpone the implementation of the agreement rather than to consider restructuring the policy. While the Association Agreement has been delayed until December of 2015, the EU should still consider Ukraine’s dire economic and military needs, helping to lessen at least a small vestige of the nation’s suffering. The solution is certainly not clear, but the formation of a new a policy is imperative.

Ukraine and Belarus vary significantly in terms of their democratic progress, but they are deeply intertwined politically.

While up until recently Belarus had a deeply fractured relationship with Western Europe that was defined by mistrust, Belarus has become a key contributor towards conflict resolution in Ukraine. As a result, the relationship between Belarus and the West, which has been antagonistic for decades, is beginning to neutralize. On February 5th, Belarusian Foreign Minister Uladzimir Makei flew to Germany in order to meet with German Foreign Minister Frank-Walter Steinmeier, the High Representative of the European Union for Foreign Affairs and Security Policy, and several other international leaders. After the meeting, German Chancellor Angela Merkel and French President François Hollande visited Minsk in order to discuss Ukrainian policy. Both the EU and the US have viewed the piece efforts that Belarus has shown towards Ukraine very positively, and the two world powers have opened up communication lines with Belarus. However, Belarus’ heavy reliance on the Russian economy as well as its involvement in the Eurasian Customs Union will stymy any progress. Belarus’ simultaneous reliance on Russia and its peace initiatives pertaining to Ukraine reveal the country’s acutely paradoxical foreign policy position. The promising actions of Belarus do not necessarily indicate its willingness to westernize, but it does justify the construction of a EU policy that is designed specifically for Belarus.

Armenia AND Azerbaijan Despite the progress that countries in the Eastern Partnership have shown, guidelines to help these countries reach EU membership have not been established; as a result, the EU’s capricious attitude may encourage countries in the East to drift towards Russia. Armenia and Azerbaijan are often considered the most undemocratic of the six countries. One of the most significant issues is that Armenia and Azerbaijan have not

The Journal of Human Rights and International Law received equal consideration in terms of financial help. Because they have failed to meet transparency standards relating to their public finances, they have only received about a third of the money that was originally designated to them in the agreement. While Armenia joined the Eurasia Customs Union after providing false hope to the EU about its willingness to construct an Association Agreement, the reality is that Armenia is completely reliant on Russia economically. Armenia is in a difficult geopolitical situation due to the closed border with Turkey, the unsettled nature of Nagorno-Karabakh, and the economic weakness of Georgia. While Armenia has shown some interest in democratization and strengthening its geopolitical position, it’s strongest alliance is still Russia.

strengthen the European Partnership, the EU must take into account the needs and requests of the six countries, encouraging an open and honest discussion about policy. Several of the countries still have concerns about the genuineness of the EU’s intentions with their economies, so it is crucial that the EU restructures the policy in order to accommodate the individual issues of each nation. While some areas in the East brim with political conflict, corruption, and economic turmoil, the region has also shown significant progress. In order to instigate further development and democratization in Eastern Europe, the EU must outline specialized policies for each country, encouraging the initiation of Association Agreements and the cultivation of trust and respect.

While the Eastern Partnership positively impacted the views of many Armenians towards the EU, the initiative has seen significant backlash in Azerbaijan. Elites in Azerbaijan are suspicious of the EU’s intentions pertaining to the Azerbaijani government and territory. Perhaps due to Azerbaijan’s resources in the energy sector, the country sees economic integration as a negative part of the initiative. Azerbaijan has little interest in westernizing its standards and promoting transparency; instead, it sees the EaP as a way to strengthen its position as an international energy powerhouse. Armenia and Azerbaijan will not be able to form stable partnerships with the EU until a mutual trust is established and equal treatment is guaranteed.

Bibliography

Conclusions International security expert Marcin Lapczynski argues, “The EU should ensure the equal treatment and support for its southern and eastern neighbourhoods.” He continues, “the EU should not take for granted partner countries’ support and interest in the EaP and should permanently work towards ensuring that the offer it presents to its partners is attractive and suited to provide assistance in reforms.” Through the initiation of three Association Agreements, the EU has made positive progress towards incorporating Eastern Europe into the EU economy; however, there are still substantial improvements that need to be made. While it is tempting for the EU to only provide aid to countries that have openly and completely supported the EU, they must still take the reformation process of countries such as Azerbaijan and Belarus seriously.

Eastern European policy expert Kataryna Wolczuk states, “The EaP is perceived still as an EU policy towards the post-Soviet region, rather than a joint initiative. Thus, Ukraine points out that there is no explicit link between the EaP institutional framework and the particular aspirations of the individual partner countries vis-à-vis the EU.” (7). In order to solidify and

Allison, Roy. “Russia resurgent? Moscow’s campaign to ‘coerce Georgia to peace.’” International Affairs 84(2008): 1145-1171.

Bohdan, Siarhei. “Belarus Approaches the EU through ‘Old Europe.’”

Belarus Digest, February 16, 2015.

Copsey, Nathanial and Karolina Pomorska, “The Influence of Newer Member States in the European Union: The Case of Poland and the Eastern Partnership.” Europe-Asia Studies 63:3(2014): 421-443.

Kaca, Elzbieta. “Learning from the Past: EU Aid in the Eastern Parternership.” EUobserver. April 16, 2014.

Jozwiak, Rikard. “Explainer: W hat Exactly is an EU Association Agreement?” Radio Free Europe/Radio Liberty. Nov. 20, 2013.

Lapczynski, Marcin. “The European Union’s Eastern Partnership: Chances and Perspectives.” Caucasian Review of International Affairs 3:2(2009): 143-155.

Peter, Laurence. “Going to the EU deals with Georgia, Moldova, and Ukraine.” BBC News. June 27, 2014.

Smbatyan, Syuzanna. “Comparative Analysis of the Armenian Exports: Eurasian Customs Union vs. Association Agreement.”

Master ess., American University of Armenia, 2013.

Solonenko, Iryna. “Eastern partnership countries: Democracy in limbo.” EUobserver. January 6, 2015.

“Ukraine Crisis: Timeline,” BBC News, Nov. 13, 2014.

Wolczuk, Kataryna. “Perceptions of, and Attitudes towards the Eastern Partnership amongst the Partner Countries’ Political Elites.” Eastern Partnership Review 5(2011): 4-12.

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