McGill Journal of Political Studies - Winter 2017 issue

MJPS McGill Journal of

Political Studies

VOLUME VIII

WINTER 2017

MJPS McGill Journal of

Political Studies

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Cover Photo by Noah Sutton (The McGill Tribune)

FOREWORD The McGill Journal of Political Science is sponsored and organized by the Political Science Students Association (PSSA). Students not only write the papers which appear in the Journal, they are also responsible for all aspects of the editorial and production process. The Journal appears annually, usually at the end of the academic year. This year’s issue continues to showcase the research that students do in their coursework. The papers selected for publication are drawn from a wide range of courses and cover just as wide an array of subjects and issues. Taken together, they make for a “good read”. I am sure that you will thoroughly enjoy this issue.

Professor Hudson Meadwell Chair, Department of Political Science

TABLE OF CONTENTS LA NATION CANADIENNE-FRANCAISE Richad Hirani - The Expansion of French Language Rights since the Canadian Charter of Rights and Freedoms

DECONSTRUCTING THE ISTANBUL CONVENTION

Phoebe Warren - An Examination of the Past, Present, and Future of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence

THE FRAGILE DEMOCRACIES OF MUSLIM SOUTHEAST ASIA Etienne Koeppel - The Cases of Indonesia and Malaysia EVIDENCE OF COLONIALISM Greta Hoaken - Evaluating the Evolution of the Judiciary’s Treatment of Traditional Indigenous Oral Evidence in the Canadian Context

10 32 54 66

LA FIN DE L’AVANTAGE LIBÉRAL? Philippe Chassé and Christophe Savoie-Coté - Le Comportement Électoral des Néo-Québécois Francophones aux Élections Provinciales Québécoises

WITH LIBERTY FOR JUSTICIARS AND ALL

Mitchell Clarke - In Defence of Scotland’s Independent, Inquisitorial Judiciary

THE ISSUE OF INEQUALITY

Noah Sutton - Why Haven’t Americans Taken a Strong Stance in Support of Redistributional Policies?

88 108 122

THE RIGHT TO ASYLUM Michelle D. Montilla - The Role of the United Nations High Commissioner for Refugees in Ensuring Ecuador’s Compliance with the Refugee Regime

TAKE ME TO CHURCH (AND SCHOOL)

Nicole Spadotto - The Imperativeness of Discourse Control in Russia’s “Competitive Authoritarian Tool Kit”

CONSTRUCTING CHINA’S RISE IN THE SOUTH CHINA SEA Louise Ribet - The Role of Soft Power and Strategic Narratives

138 162 176

WORDS FROM THE EDITOR IN CHIEF Over the past year I have been proud to guide the creation of the Winter 2017 edition of the McGill Journal of Political Studies, which serves as an important forum for showcasing the highest quality undergraduate research in the Political Science Department. The MJPS not only allows for students’ work to receive the attention and praise it deserves, but also fosters debate and discussion among both students and professors.

The articles chosen for this year’s edition focus on a diverse array of international issues, ranging from an examination of the Istanbul Convention to an evaluation of the Canadian Judiciary’s treatment of traditional Indigenous oral evidence. Each article seeks to present its given topic from a unique perspective, pushing the author and readers alike to engage with the full complexity and nuance of each issue. As a central organ of the Political Science Students’ Association, the Journal continues to serve in the department’s longstanding tradition of promoting the highest level of intellectual enrichment both in and outside of the classroom.

The publication of this year’s Journal would not have been possible without the assistance and commitment of numerous individuals, whose contribution I cannot commend enough. Thank you to the peer reviewers, graduate reviewers, editors, designer and translator. It is your talent and many hours of hard work that has allowed for this outstanding product to be created at the undergraduate level. I also wish to extend my gratitude to Deena Yanofsky, Michael David Miller and Katherine Hanz, whose expertise has enabled the Journal to reach higher standards of professionalism year after year. Thank you to the PSSA, and the MJPS advisory board. The resources and advice you provided have been invaluable. Finally, I must express my appreciation of the authors and readers of the MJPS. It is your desire to continuously learn from and stimulate others around you that forges the backbone of the Journal. We thank you for your commitment to the Journal, and we hope you will continue to support the MJPS in the future.

Nina Jaffe-Geffner Editor-in-Chief

OUR TEAM PRINT EIC Nina Jaffe-Geffner

ONLINE EIC Juliana Hayden

PRINT EDITORS Sanya Ramnauth Mehlka Mustansir Jonathan Glustein Brian Huang Laurie Mercier

Frankee Wallace Nicholas D’Ascanio Kathryn Schmidt Nandini Srivastava

ONLINE EDITORS Zhihan Zou Liam Kirkpatrick

Janna Bryson Adrin Shojaie

TRANSLATOR Yann Bachelot

DESIGN EDITOR Daniel Freed

ADVISORY BOARD Michael David Miller Katherine Hanz MA, MLIS Library Liaisons Hudson Meadwell PhD Professor & Chair, Political Science Department Richard Schultz MLIS PhD Professor of Canadian Politics Philip Oxhorn PhD Professor of International Politics Troy Björkman VP Academic, PSSA

SUBMISSION & REVIEW PROCESS The McGill Journal of Political Studies (MJPS) accepts manuscripts in either French or English from undergraduates of any faculty or major. Papers are required to have been written for a course at the 300-level or above and must have received a minimum grade of 80% (A-) in that course. Selected manuscripts contain coherent and well-structured arguments, good grammar, and strong syntax. Original analysis and unique perspectives on relevant topics in political science and current affairs distinguish selected papers as some of the best that undergraduate students have written at McGill University.

Manuscripts are accepted throughout the Fall semester in multiple submission rounds. All manuscripts enter a double-blind review process. Authors’ names are withheld while an anonymous team of both undergraduate and graduate peer reviewers analyze and critique each paper. The Editorial Board then convenes in January to review the anonymous peer review feedback and select the strongest manuscripts for the journal. Authors’ names are released only after the final content is selected, ensuring the integrity of the double-blind review process. At this time, each Editor is paired with an author for a revision phase to prepare the manuscripts for publication.

The Journal is a student-run enterprise with an Editorial Board consisting of undergraduate students at McGill University.

The Editorial Board relies on the help of undergraduate and graduate peer reviewers, as well as an Advisory Board consisting of the Vice President Academic of the McGill Political Science Students’ Association, faculty from the McGill Political Science Department, and staff from the McGill Library.

I.

LA NATION CANADIENNEFRANCAISE The Expansion of French Language Rights since the Canadian Charter of Rights and Freedoms

RICHAD HIRANI

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ABSTRACT

ABSTRAIT

This paper asks the question “how have language rights fared in the Charter era?”

First, an array of existing literature will be examined. It will be shown that these works have largely concluded that the Charter would diminish the status of the French language both inside and outside of Quebec. With the use of twelve different Supreme Court of Canada cases, it will be shown that since the Charter was passed the Supreme Court has both upheld French language rights inside of Quebec and advanced these rights in other parts of the country.

Cet article pose la question suivante: «Comment les droits linguistiques ontils fonctionné à l’ère de la Charte?»

Tout d’abord, un éventail de documents existants sera examiné. Il sera démontré que ces travaux ont en grande partie conclu que la Charte diminuerait le statut de la langue française à l’intérieur et à l’extérieur du Québec. En se servant de douze affaires différentes de la Cour suprême du Canada, il sera démontré qu’après l’adoption de la Charte, la Cour suprême a confirmé les droits de la langue française à l’intérieur du Québec et a fait progresser ces droits dans d’autres régions du pays.

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his paper asks the question “how have language rights fared in the Charter era?” More specifically, this paper looks at an array of literature that assesses the French language in Canada and how the Charter has affected it. The literature presented in this paper ultimately arrives at two broader conclusions. The literature shows that: a) the preservation of the French language is a salient issue among Quebecois and French-Canadians b) the Charter would diminish the status of the French language both inside and outside of Quebec. Following the review of the contemporary literature on this subject, this paper will advance two claims that run counter to b). First, it will be shown that since the Charter was passed, the Supreme Court of Canada has upheld French language rights inside of Quebec. Second, this paper will demonstrate that since the Charter was passed, the Supreme Court has not only upheld, but also expanded, French language rights outside of Quebec. As evidence, twelve different cases heard by the Supreme Court of Canada after the Charter was passed will be analyzed. In the first six cases presented, the Supreme Court rules in favour of the Quebec government and upholds French language rights in Quebec. In the latter six cases presented, the Supreme Court rules against six different provinces trying to restrict language rights, and actually expands the purview of French language rights. Although there is some literature, which will be presented, that lends support to this paper’s thesis, the literature is either purely empirical (e.g. quantitative analyses of the number of French students or French schools) or is purely institutional/theoretical (e.g.

Peter Hogg’s ‘Charter Dialogue’). This paper contributes to the study of French language rights in Canada by analyzing extensive case law of almost every decision made by the Supreme Court of Canada on French language rights since the Charter was passed.

Before concluding, this paper will address potential refutations to its the central thesis. Quebec’s original Bill 101—Charter of the French Language—may be considered as the clearest objection to this paper’s thesis. Indeed, in Ford v.

Quebec (1988), the Supreme Court struck down two essential elements of Bill 101, seemingly ruling restrictively on language rights. However, this objection will be addressed by showing how Ford actually strengthens the argument that this paper advances. Ultimately, in contrast to much of the literature on this subject, this paper will argue that since the Charter was passed, the Supreme Court has upheld French language rights in Quebec, and expanded French lan-

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guage rights outside of Quebec.

Lastly, it is important to note that using case law as evidence is particularly convincing for this purpose since at the forefront of the literature’s claims regarding the Charter’s negative effect on Quebec is the notion that the Charter puts too much power in the hands of the Supreme Court. Without a distinct society clause, the Supreme Court was not expected to uphold the flourishing of the French language and an expansion of its scope of expression. Indeed, the overarching claim of the literature presented above is that the Charter would not sufficiently protect French language rights. However, the Charter and the Supreme Court are not inherently damaging to Quebec’s linguistic survival insofar as French language rights have been upheld and even expanded in Canada. It is for this reason that the best evidence is citing twelve different post-Charter cases on the subject of French language rights heard by the Supreme Court of Canada.

I. LITERATURE REVIEW The literature in Canadian political science academia agrees that language is fundamental to identity. Charles Taylor in Shared and Divergent Values sees language as a positive and substantive right (Taylor, 1993). To Taylor, language rights are positive because “keeping a language healthy involves giving it a scope for expression” (Taylor, 1993). Accordingly, the state must actively promote the expressive power of a community’s language since the state’s legitimacy is founded on its ability to preserve a person or group’s identity (Taylor, 1993). Taylor cites the “Quebec nation” as an example of a community defined by a common language, among other things. Richard Bourhis elaborates on this when he writes about how language is a “highly volatile, symbolic issue” in Quebec (Bourhis, 1984). According to Bourhis, this is because “the survival of the French language is…a primary objective and raison d’être…of Quebec” (Bourhis, 1984). Indeed Dion agrees when he writes that to Quebec, “la langue est devenue la seule difference inconstestable” (Dion, 1991). Language rights have been a principal political cleavage in Canada since the Charter was passed (Dion, 1991).

The adoption of the Charter at the exclusion of Quebec sparked two decades of constitutional politics, referendums, and attempts to reach a consti-

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tutional accommodation of Quebec (Choudhry, 2009). Simeon and Banting’s seminal work And No One Cheered captured academic views on the Charter being entrenched without the consent of Quebec. In effect, the academics in Simeon and Banting’s larger book reach a consensus that the Charter puts too much power in the hands of the Supreme Court, which does not bode well for Quebec cultural and linguistic issues (Simeon & Banting, 1983). Even on a substantive level, the Constitution “failed to meet even traditional Quebec positions…in many areas, including language” (Fournier, 1983). After the Charter was passed, while the rest of Canada rejoiced, feelings of “pain and loss” were felt in Quebec — and not simply among sovereigntists (Fraser, 2009).

The aforementioned literature all links back to Taylor’s proposition that no political entity is worth allegiance if it does not contribute to the survival or flourishing of the language and nation (Taylor, 1993). Canada’s raison d’être must come from its contribution to the survival and “furtherance of la nation canadienne-francaise” (Taylor, 1993). It is important to note that Taylor chooses the French Canadian nation here, rather than the Quebec nation. This is because French language rights must be ensured not only in Quebec, but also the rest of Canada. This is why this paper will seek to develop an argument directed at both Quebec and the rest of Canada vis-à-vis language rights.

According to the literature, the language rights ensured in the Charter are not sufficient to protect and promote the French language. The literature finds that all throughout history, French language rights have been “limited and constrained” (Fraser, 2009). This has been the case both inside Quebec and outside Quebec. Inside of Quebec, the Charter’s emphasis on bilingualism jeopardizes the primacy of French (Choudhry, 2009). Outside of Quebec, French speakers risk assimilation (Fournier, 1983). Whereas this is more of a micro-level analysis focusing on individual French-speaking citizens, Elliadis looks at language rights in Canada through the broader lens of human rights.

According to Elliadis, language rights are human rights protected by the ICCPR (Elliadis, 2014). In Canada specifically, Elliadis notes, language rights are “unique rights” (Elliadis, 2014). With respect to these unique rights, Elliadis finds that “language rights receive little protection in Canada” (Elliadis, 2014).

Elliadis’ punctual conclusion regarding language rights in Canada accurately summarizes the larger literature on this subject. The literature shows that: a) the preservation of the French language is a salient issue among Quebecois and

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French-Canadians and b) the Charter would diminish the status of the French language both inside and outside of Quebec II. ANALYSIS This paper disputes the validity of b). In effect, it will be shown that the Supreme Court has not diminished the status of the French language insofar as it has upheld French language rights in Quebec, and expanded them outside of Quebec. As evidence for the first claim, this paper will cite six different cases since the Charter was passed where the Supreme Court sided with the Quebec government: Devine (1988), re: Secession (1998), MacDonald (1986), Casimir (2005), Zorilla (2005), Gosselin (2005). Accordingly, it will be shown that the claim by the literature that the Charter would lead to the diminished status of French within Quebec does not hold up to empirical scrutiny. As evidence for the second claim, this paper will cite six different cases since the Charter was passed where six different provinces tried to restrict language rights, but the Supreme court expanded them: Re: Manitoba Languages Act (1985), R v. Mercure (1988), Mahé v. Alberta (1990), R v. Beaulac (1999), Arsenault-Cameron v. PEI (2000), Doucet-Boudreau v. Nova Scotia (2003). Accordingly, the claim by the literature that the Charter will result in “assimilation [that] will eventually do away with most, if not all francophone clusters outside Quebec” will be disproved as well (Fournier, 1983).

CASES INSIDE QUEBEC

Before looking at how the Supreme Court has upheld language rights in Quebec in the Charter era, it is worth looking at how the Charter interacts with Quebec. Although Quebec was not granted its distinct society clause, the province was granted unique exemption from elements of section 23 – “minority language education rights.” In this sense, Quebec is the only province mentioned in the Canadian Charter of Rights & Freedoms. Many academics believe that section 23 “was the only part of the Charter with which Pierre Trudeau was truly concerned” (Dyck, 2000). In virtue of Quebec’s desired primacy of French over English, section 59 was written in the Constitution Act (1982) to explicitly exempt Quebec from implications of section 23. Section 59 is one of

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the few sections of the Constitution which explicitly mention a province: (1) Paragraph 23(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.

In effect, Section 59 establishes that section 23(1)(a) comes into effect if and only if Quebec authorizes it through its legislative assembly. Quebec has still not done so. This is just one example of how the Charter directly interacts with French language rights and Quebec, but not necessarily in a negative way.

In regards to Section 23 of the Charter, the Supreme Court has interpreted this section as a substantive right needing a “purposive interpretation” based on “redressing past injustices” (Arsenault-Cameron, 2000). This is consistent with Taylor’s conception of language rights as a positive right, contributing to the “furtherance of la national canadienne-francaise” (Taylor, 1993). Indeed, in a landmark and heavily-cited French language rights ruling, the Supreme Court wrote that “the general purpose of s.23 of the Charter is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible” (Mahé, 1990). Although the Charter was attacked in the previously presented literature on the basis of not promoting the flourishing of the French language, the Supreme Court ended up making this the standard for section 23. In Contested Constitutionalism, Manfredi & Kelly elaborate further on the activist law-making approach the Supreme Court has adopted in the Charter era. In effect, since the Charter was passed, the Supreme Court has ‘read-in’ and expanded on rights in the Charter.

In Gosselin v. Quebec (2005), the Supreme Court interpreted Section 23 in favour of the Quebec government. In this case, French-speakers from Quebec wanted to send their kids to an English school. The Quebec government required them, as French-speakers, to send their children to a French school.

The French-speakers challenged this as unconstitutional, depriving them of their section 15 equality rights. The Supreme Court agreed with the Quebec

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government, and ruled that the French-speakers would be required to send their children to a French school.

In the same year as Gosselin the Supreme Court of Canada ruled for the government of Quebec on three additional cases: Casimir v. Quebec; Zorilla v.

Quebec; Okwuobi v. Lester B Pearson School Board. In all three cases, the Supreme Court of Canada upheld Quebec’s newly institutionalized language institution, the Administrative Tribunal of Quebec (ATQ). These three cases indicate the Supreme Court’s deference to the Quebec legislature and their newly (at the time) amended Bill 101. In the late 1990s, the Quebec government gave exclusive jurisdiction to the ATQ to hear appeals regarding minority language rights. The English-speaking appellants—Casimir, Zorilla, and Okwuobi— tried to circumvent the ATQ by appealing language legislation through the federal courts. The Supreme Court ruled that “…courts should respect the clear intent of the legislature” and accordingly deemed the ATQ to be a legitimate quasi-judicial body (Casimir, 2005). The Supreme Court upheld the ATQ’s “exclusive jurisdiction to make determinations in respect of proceedings brought against an administrative authority” (Casimir, 2005). This deference to the Quebec government is the sort of “dialogue” that Peter Hogg argues the Charter ensures (Hogg, 1997).

The Supreme Court’s 1998 ruling in Reference re: Secession of Quebec has shaped French language cases in the last decade significantly as well. In this case, the Supreme Court ruled that the French language and its associated minority rights are “underlying principles” of the Canadian constitution (Re: Secession, 1998). In terms of Quebec’s secessionist movement, this was seen as a loss because Quebec could not legally unilaterally secede from Canada. However, in regards to the French language and culture, re: Secession is a ‘win’ for Quebec. The Supreme Court affirmed Quebec’s right to “promote their language and culture” in a way that enables French-speaking Canadians (Re: Secession, 1998). The Supreme Court also affirmed minority language and minority education rights in the Constitution as fundamental rights. Michel Bastarache writes extensively in Language Rights in Canada (2003) about how re: Secession strengthened French language rights by restating the importance of protecting the French language and linguistic minorities.

However, even prior to 1998, the Supreme Court ruled that French should have primacy over English in Quebec. In MacDonald v. City of Montre-

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al (1986), MacDonald, an English-speaking person, unsuccessfully challenged that the unilingual French summons provided to him violated his rights as an English speaker. The Supreme Court exercised deference and respected the Quebec legislature by ruling that although it might be “desirable or fair that summons be bilingual to ensure comprehension by the recipient…such a requirement is not imposed” (MacDonald, 1986). The Supreme Court ruled in favour of the Quebec government “empower[ing] the courts of Quebec to issue unilingual documents” (MacDonald, 1986). This is another example of a case where the Supreme Court ruled for the Quebec government and upheld French language rights in Quebec for Quebec.

FORD V. QUEBEC AND OBJECTIONS

In objection to this paper’s claim that French language rights have been upheld in Quebec, one would likely point to Bill 101 as an example of French language rights being restricted in Quebec. Ford v. Quebec (1988) is one of the most commonly cited cases as evidence for the claims made by the literature presented earlier. This is because the Quebec legislature wrote a bill which outlawed English advertising and English business names in an effort to promote the primacy of the French language, but in 1988, the Supreme Court struck down those two provisions of Quebec’s Charter of the French Language as unconstitutional violations of the Charter of Rights and Freedoms. This decision is typically used in the literature to support the claim that the Supreme Court is undemocratic or that the Charter has been used to restrict French language rights. The principal objection to this paper’s thesis is the deemed unconstitutionality of Quebec’s proposed Bill 101.

However, Ford v. Quebec has been generally misunderstood to be a French language case when it is, in fact, a freedom of expression case. In contrast to what the literature generally argues, Ford actually upheld French language rights in Quebec, albeit indirectly. Instead of striking down section 58 and section 69 of Bill 101 using one of the minority language provisions of the Charter, the Supreme Court struck it down using section 2, freedom of expression.

For example, by using section 16, official bilingualism, to strike down s.58 and s.69—which outlawed English advertising and English business names, respectively—the Supreme Court would have set a precedent that contradicts the no-

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tion of language rights as a positive right requiring state action. This would have been more detrimental to the French language than ruling on section 2 of the Charter instead. By ruling on section 2, the Supreme Court made this a freedom of expression issue instead of a French language rights issue. The Supreme Court of Canada accepted the position of the government that French should be the “visage linguistique” of Quebec (Harvey & Schwartz, 2012). The Supreme Court found that the Quebec government could still achieve their goal of making French le visage linguistique of the province by making French predominantly larger than English. To ban English from both advertising and signs entirely would be disproportional if Quebec’s goal could be achieved through simply giving French primacy over English. In this sense, the Supreme Court upheld French language rights by suggesting to the Quebec government, and thereby deeming it constitutional, to make French take precedence over English. Indeed, the court provided alternatives that the Quebec government later adopted: French can be bigger than English, it can come before English, and every sign must have French but not necessarily English.

The objection that Ford v. Quebec is evidence of the Supreme Court restricting French language rights in Quebec crumbles on closer inspection.

Even the Quebec government conceded that Ford was not a French language rights issue, but a freedom of expression issue, when it stopped invoking the notwithstanding clause after Ballantyne v. Canada (1989). After Ford, the Quebec government invoked the notwithstanding clause to keep Bill 101 into law despite its alleged unconstitutionality. Since Canada’s government was not able to protect their rights, Ballantyne and two English-speaking Quebecers challenged Bill 101 to the United Nations Human Rights Committee. Ballantyne et al. challenged, like in Ford, that Bill 101 violated their freedom to expression.

This time Bill 101 was not challenged under the Charter of Rights and Freedoms, but was challenged as an infringement of the right to the freedom of expression guaranteed by Article 19 of the International Covenant on Civil and Political Rights. Just like the Supreme Court of Canada, the UN Human Rights Committee found that Bill 101 violated Article 19 of the ICCPR. Accordingly, in 1993 when the sunset provision of the notwithstanding clause came into effect, the Bourassa government chose to remove the use of the notwithstanding clause on Bill 101, and instead rewrite the law. Many academics attribute Bourassa’s decision not to invoke the notwithstanding clause again to be as a display of

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deference to the United Nations, from whom Quebec seeks legitimacy (Schabas, 1996). Thus, Ford v. Quebec is misconstrued as a French language rights issue, when it is truly a freedom of expression issue. In Ford, the Supreme Court upheld the primacy of the French language over English in Quebec. Bill 101 is not evidence of anything unjust about the Supreme Court or the Charter if the UN Human Rights Committee adopted the same stance to which Quebec acquiesced.

In fact, French language rights were upheld vis-à-vis Bill 101 not only through the decision in Ford, but also through the decision in Devine v. Quebec (1989). Following the Ford case, Bill 101 was again challenged on the basis that it was outside the jurisdiction of the province of Quebec and therefore ultra vires.

Allan Singer, a man who had operated his English-only store for 30 years, was charged under Bill 101 for having an English sign. In Devine, he argued that Bill 101 criminalizes the English language and accordingly deals with criminal law, enumerated by section 91 of the Constitution Act, 1982. Therefore, he argued, Bill 101 is unconstitutional because it is not within provincial jurisdiction, but federal jurisdiction. The Supreme Court disagreed and ruled for the Quebec government. In Devine v. Quebec: the Court accepted that Quebec has the constitutional authority to regulate ‘the language of commerce and business,’ and that doing so in a way that promotes the use of French in commerce and business falls within provincial jurisdiction (Harvey & Schwartz, 2012)

By ruling that Bill 101 is intra vires and deals with valid commercial matters, the Supreme Court legitimized the Quebec government’s ability to regulate French in commerce and business. In effect, the Supreme Court legitimized Charles Taylor’s position in Shared and Divergent Values regarding language being given a scope for expression. Taylor specifically discusses how a languages scope for expression depends on the language’s use in urban and commercial centers (Taylor, 1993). As a result of Devine, the Quebec government and Bill 101 were given the legitimacy to regulate the work place using processes such as “francisation” without federal interference (Harvey & Schwartz, 2012).

Ultimately, in contrast to the position of the literature presented previ-

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ously, the Supreme Court has upheld French language rights inside of Quebec. The literature written on the subject of French language rights vis-à-vis the Charter generally expected the Charter to lead to the diminished status of French in Quebec (Choudhry, 2009) or the Supreme Court to rule contrary to Quebec’s linguistic survival (Simeon & Banting, 1983). Instead, the previous section has demonstrated that the Charter is not inherently damaging to Quebec’s linguistic survival insofar as French language rights have been upheld in favour of the Quebec government when challenged at the Supreme Court.

The primary objection, and main exception, where the Supreme Court ruled contrary to the Quebec government was also addressed. Ford v. Quebec has been misunderstood to be a French language issue, when it is, in fact, a freedom of expression issue as supported by Ballantyne v. Canada. In Ford, the Supreme Court upheld the constitutionality of the Quebec government enforcing the precedence of French over English. Like in Ford, the Supreme Court considered Bill 101 in Devine as well – and ruled for Quebec government. In light of the aforementioned cases the Supreme Court of Canada has actually upheld French language rights more than the literature gives it credit for.

III. CASES OUTSIDE QUEBEC Outside of Quebec, the Supreme Court has not only upheld French language rights but also expanded them. In the following six post-Charter cases, the Supreme Court rules against six different English-speaking provinces trying to restrict language rights. Accordingly, this paper will show that the literature’s claim that the Supreme Court in the post-Charter era would not ensure the survival of the French language across Canada is false insofar as the Supreme Court has expanded the purview of French language rights guaranteed by a plain text reading of the Charter.

Almost immediately after the Charter was passed, the Supreme Court emphasized that the importance of the French language was not limited to Quebec, but expanded to the rest of Canada. In 1985, in Re: Manitoba Languages Act, all of Manitoba’s laws that were written in only English were deemed “of no force and effect.” The Supreme Court ruled “the Province of Manitoba has an invalid and therefore ineffectual legal system until the Legislature is able to translate, re-enact and publish its current laws” in the French language (Re: Manitoba

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Languages, 1985). The Manitoba provincial government held the position that its unilingual English laws were legal but the Supreme Court sided with the French-speaking appellant and ruled against the Manitoba government. This case is important because the Supreme Court sent a symbolic message to the rest of the provinces that the importance of the French language is not limited to Quebec. In the future, the Supreme Court built on the foundation set in Re: Manitoba Lanuguages - one of the first post-Charter French language cases – to expand French language rights outside Quebec. Prior to the entrenchment of the Charter and section 52, the Supreme Court would not have had the jurisdiction to deem all provincial legislation “of no force and effect.”

Similarly, in R v. Mercure (1988), the Supreme Court ruled against the government of Saskatchewan. In Saskatchewan, a French-speaker was charged with a speeding ticket and wanted a French version of the relevant statutes to be presented to him. The Saskatchewan government took the position that this was unnecessary and convicted him anyway. When heard before the Supreme Court, the court overturned decisions from the lower courts of Saskatchewan – which sided with the government of Saskatchewan, to restrict language rights.

Just like in re: Manitoba Languages, the Supreme Court ruled that the Saskatchewan government was required to re-enact, print, and publish their laws in French. By ruling that legislation understandable to only English-speakers was unconstitutional, the Supreme Court sent a symbolic message that the French language is an important part of not only Quebec identity, but also Canadian identity. Re: Manitoba Languages Act (1985) and Mercure (1988) set the foundation for the Supreme Court to rule in favour of French language rights in the future and against the restriction thereof by provinces.

In R v. Beaulac (1999) the Supreme Court overturned three previous cases where French language rights were restricted. The Supreme Court ruled that: To the extent that Societe des Acadiens du Nouveau-Brunswick, Bilodeau, and MacDonald, stand for a restrictive interpretation of language rights… [they are] to be rejected

Instead, in Beaulac, the Supreme Court favoured a “liberal and purposive interpretation” of language rights. The Supreme Court reasoned that “language rights are not negative rights, or passive rights, they can only be enjoyed

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if the means are provided.” This excerpt from the Supreme Court’s decision in Beaulac sounds exactly like Taylor’s conception of language rights as positive, substantive right. Just as Taylor wrote that language is essential to identity, the Supreme Court accepted this notion in Beaulac, arguing “the language of the accused is very personal in nature; it is an important part of his cultural identity.” Beaulac is an example of a case where the Supreme Court actually accepts many of the premises of the previous literature regarding language rights and identity.

Beaulac is especially notable because the Supreme Court ruled against the government of British Columbia and ruled for a French-speaker, who was also fluent in English. Beaulac, charged with first-degree murder, demanded the right to a French trial and a judge or jury who spoke both official languages of Canada. In a province where there are more German, Cantonese, Punjabi, and Mandarin speakers than French speakers,1 the Supreme Court ruled for Beaulac and the importance of the French language. The court granted Beaulac’s appeal and ordered the government of British Columbia to try Beaulac in a new trial held before a judge and jury who speak both official languages.

The Supreme Court wrote that the French language rights in the Charter are “substantive rights” that must be “interpreted purposively, in a manner consistent with the preservation and development” of the French language (Beaulac, 1999). In contrast to the literature, which expected the Supreme Court to restrict French language rights, the Supreme Court actually accepts the notion of language as a positive and substantive right.

In Mahé v. Alberta (1990), the Supreme Court ruled against both the government of Alberta and the government of Saskatchewan. French-speakers in Alberta challenged the provincial government that their section 23 minority language education rights were not being satisfied by the quality of French schooling in Edmonton. In this case, the Supreme Court of Canada expanded French language rights by ruling that “s.23 confers upon minority language parents a right to management and control over the education facilities in which their children are taught” (Mahé, 1990). The Charter makes no mention of giving French speakers management and control over French schooling across Canada. Indeed, this is what Riddell finds was one of Quebec’s principal objections to section 23 of the Charter (Riddell, 2009). The Supreme Court ex-

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panded section 23 French language rights by arguing that “to ensure that their language and culture flourish,” French-speakers must be given management and control over aspects of education which pertain to their language and culture (Mahé, 1990).

Following the Mahé decision, “all provinces had in place a system of francophone school governance that covered the entire province” (Riddell, 2009).

Riddell’s work attributes this directly to the Supreme Court’s Mahé ruling. Indeed, even in Alberta, the decision galvanized the Alberta government to establish a French Language Working Group, which included representatives of the Alberta francophone group (Riddell, 2009). Supplemental empirical evidence of this sort will be offered to support this paper’s thesis in section IV. Ultimately, by acknowledging that Section 23 is “designed to correct…. [the] progressive erosion” of the French language, the Supreme Court expanded on the plain text written in the Charter (Mahé, 1990). Just like how in re: Secession the Supreme Court ruled that language and minority rights are underlying principles of the constitution, the Supreme Court set a precedent through Mahé. The justification for the expansion of section 23 of the Charter vis-à-vis French language rights in Mahé set a precedent for the Supreme Court to expand them again in future cases. Two of these cases, Arsenault-Cameron (2000) and Doucet-Boudreau (2003), will now be analyzed.

Whereas in Mahé the Supreme Court expanded French language rights by conferring the right of “management and control” to French-speakers, in Arsenault-Cameron the issue was distance. In Arsenault-Cameron, multiple Francophone families made a request to the French Language Board of PEI to build a French language school in their community. The Minister of Education for the government of PEI rejected the request since the nearest French language school was less than an hour away. The French families challenged to the Supreme Court of Canada that the government of PEI was required by section 23 of the Charter to provide them with a closer French school. The Supreme Court agreed and ruled against the government of PEI, ordering the government to build a French school in the families’ community.

The Supreme Court directly opposed the lower courts of PEI by ruling that they “erred in adopting a different, more restrictive” interpretation of French language rights (Arsenault-Cameron, 2000). According to the Supreme Court, the choice between going to a majority-language English school

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close-by and a distant French language school faced French Canadians in PEI with “a choice which would have an impact on the assimilation of the minority language children” (Arsenault-Cameron, 2000). This was one of the concerns of the literature presented earlier: that the Charter does not protect French language speakers outside of Canada, and therefore would lead to their assimilation. The Supreme Court showed in Arsenault-Cameron its awareness of the “promotion and preservation” of the French language by expanding section 23 of the Charter to incorporate distance. Although the provincial government sought to restrict French language rights, the Supreme Court expanded them by ruling beyond the plain text purview of section 23.

Similar to Mahé, the Supreme Court’s justification for its decision Arsenault-Cameron set a precedent for future French language rights cases. Specifically, in Arsenault-Cameron, the Supreme Court acknowledged that the purposive interpretation of section 23 should be directed at the purpose of “redressing past injustices.” In light of this, French language speakers in the rest of Canada have “special requirements” that the government must recognize (Arsenault-Cameron, 2000). The Supreme Court looked back on both the decisions in Mahé and Arsenault-Cameron when deciding Doucet-Boudreau v. Nova Scotia (2003).

In Doucet-Boudreau, the issue was neither management and control, nor distance. In this case, the Supreme Court expanded French language rights under section 23 of the Charter for a third time. This time, it was by incorporating time-sensitivity into a purposive interpretation of section 23. Just like in Mahé and Arsenault-Cameron, the Supreme Court ruled against the provincial government trying to restrict language rights: in Mahé it was Alberta and Saskatchewan, in Arsenault-Cameron it was PEI, and in Doucet-Boudreau it was Nova Scotia. In Doucet-Boudreau, the Supreme Court ruled that the delay in construction of French language schools in Nova Scotia was an infringement of the rights of French Canadians living in Nova Scotia. To justify this decision, the Supreme Court drew on the proposition of redressing past injustices from Arsenault-Cameron. The Supreme Court wrote:

For every school year that government to not meet their obligations [to French speakers] under s.23, there is an increased likelihood of assimilation which carries the risk that numbers

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might cease to warrant. (Doucet-Boudreau, 2003)

Therefore, the Supreme Court ruled that in order for French language rights to be meaningfully protected, they must be promptly protected. The court mandated that section 23 of the Charter carries with it “an affirmative promise” to actively promote the French language’s “flourishing” (Doucet-Boudreau, 2003). Like the previous cases analyzed, in Doucet-Boudreau, the Supreme Court acknowledged the importance of promoting the French language in order to let it flourish.

This same language is also used by the literature presented earlier. However, while the literature expected the Supreme Court to restrict language rights outside Quebec, risking French-Canadian assimilation, the aforementioned cases show that this has not been the case in the Charter era. Instead, the Supreme Court has acknowledged the importance of the French language to identity and accordingly expanded the purview of French language rights guaranteed by a plain text reading of the Charter. The cases presented above show that French language rights guaranteed in the Charter were expanded by the Supreme Court by requiring purposive interpretations directed at redressing past injustices and actively promoting the flourishing of the French language. Thus, the literature is mistaken in claiming that the Supreme Court’s interpretation of the Charter, and therefore the Charter itself, risks the assimilation of French language speakers to the rest of Canada.

IV. FURTHER LITERATURE There is literature in Canadian political science academia that lends support to this paper’s thesis. In their seminal work, Contested Constitutionalism, Manfredi & Kelly show how “Charter Canadians” have been successful in using rights discourse and threats of litigation to achieve their policy goals (Manfredi & Kelly, 2009). Riddell applies this hypothesis to French Canadians and finds that francophone proponents of French schools have been successful in using rights discourse to achieve their French language policy goals (Riddell, 2009). Peter Hogg’s work adds that a “Charter dialogue” between courts and legislatures has promoted this rights discourse, enhancing Canadian democracy (Hogg, 1997). These authors lend indirect support to this paper’s claims by

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showing how the Charter and the Supreme Court have not necessarily restricted language rights, but actually expanded their scope for realization.

Harvey & Schwartz look more in depth at the Supreme Court than the aforementioned academics. They find that, in general, for French language cases: The Court has been unanimous, handing down a judgement of “The Court” as an institution rather than a judgement authored by an individual judge in which the rest of the Court has concurred.

The Court’s practice seems to indicate its awareness that…it is important to present a collective front (Harvey & Schwartz, 2012).

In effect, Harvey & Schwartz see joint authorships of decisions by the Supreme Court as a symbolic message that seeks to transcend Canada’s linguistic divide. More often than not, the Supreme Court “has come to accept Quebec’s objectives as constitutionally legitimate, either explicitly or implicitly” (Harvey & Schwartz, 2012).

This literature, although it lends support to this paper’s thesis, suffers insofar as it is purely theoretical and normative. The notions of rights discourse and symbolic messages are abstract concepts — even the authors of these works would likely agree. This paper seeks to contribute to the study of French language rights in Canada by providing extensive case law analysis in the Charter era.

Most of the literature that exists that lends support to this paper’s central claim, if not theoretically or institutionally based, is empirical. For example, Martel conducted a quantitative empirical analysis and found that following the decisions of Mahé and Arsenault-Cameron, “the number of francophone schools continued to increase in a number of provinces” (Martel, 2001). Martel measured the number of French-language schools and French student populations in Canada over a twenty-five year period since the Charter was passed and found that both have increased. Whereas Martel’s empirical analysis was quantitative, Churchill conducted a qualitative empirical analysis. Churchill measured the quality of minority education for Francophones in Canada since the Charter was introduced. Her results show that Francophones have achieved gains in the areas of curriculum, French-language schools, and school board

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administration (Churchill, 1998). In this sense, the Charter has led to “…an almost inconceivable transformation” in French language schooling (Churchill, 1998). However, this literature is an empirical account of the French language in Canada vis-à-vis the Charter.

Ultimately, the literature that lends support to this paper’s thesis is either premised on theoretical/institutional claims or on empirical analysis. This paper contributes to the study of French language rights in Canada vis-à-vis the Charter by analyzing sixteen different post-Charter cases heard before the Supreme Court of Canada on French language rights.

V. CONCLUSION This paper has made the case that since the Charter was entrenched, the Supreme Court of Canada has upheld French language rights in Quebec and expanded French language rights outside of Quebec. The relevance of this claim stems from its variance to the literature on this subject. The literature on the subject of French language rights and the Charter has generally advanced two claims: a) the preservation of the French language is a salient issue among Quebecois and French-Canadians b) the Charter would diminish the status of the French language both inside and outside of Quebec. After reviewing this literature, this paper advanced two claims that run contrary to b). First, this paper cited six different post-Charter cases where the Supreme Court of Canada sided with the Quebec government and upheld French language rights.

Second, this paper cited six additional post-Charter cases where the Supreme Court of Canada ruled against six different provinces, and actually expanded the purview of French language rights.

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WORKS CITED Arsenault-Cameron v. Prince Edward Island [2000] 1 SCR 3. Judgements of the Supreme Court of Canada.

Banting, Keith; Simeon, Richard. 1983. And No One Cheered: Federalism, Democracy, and the Constitution Act. Methuen: Toronto.

Bastarache, Michel. 2004. Language Rights in Canada. Les Editions Yvon Blais: Cowansville, Quebec.

Bourhis, Richard. 1984. Conflict and Language Planning in Quebec. Multilingual Matters: Clevedon, England.

Casimir v. Quebec (AG); Zorilla v. Quebec (AG); Okwuobi v. Lester B Pearson School Board. [2005] 1 SCR 257. Judgements of the Supreme Court of Canada.

Choudhry, Sujit. 2009. “Bills of Rights as Instruments of Nation Building in Multinational States: The Canadian Charter and Quebec Nationalism” in Contested Constitutionalism, ed. Manfredi & Kelly, UBC Press; Vancouver.

Churchill, Stacy. 1998. New Canadian Perspectives: Official Languages on Canada.

Department of Canadian Heritage: Ottawa.

Devine v. Quebec (Attorney General) [1988] 2 SCR 790. Judgements of the Supreme Court of Canada.

Dion, Stephane. 1991. Le nationalisme dans la convergence culturelle: le Québec contemporain et la paradoxe de Tocqueville. Poli 521 Coursepack: McGill University 2016.

Doucet-Boudreau v. Nova Scotia [2003] 3 SCR 3. Judgements of the Supreme Court of Canada Elliadis, Pearl. 2014. Speaking Out on Human Rights: Debating Canada’s Human Rights System.” McGill-Queen’s University Press.

Ford v. Quebec (Attorney General) [1988] 2 SCR 712. Judgements of the Supreme Court of Canada.

Fournier, Pierre. 1983. “The Future of Quebec Nationalism” in And No One Cheered, ed. Simeon & Banting, Methuen: Toronto.

Fraser, Graham. 2009. “Canadian Language Rights: Liberties, Claims and the National Conversation” in Contested Constitutionalism, ed. Manfredi & Kelly, UBC Press: Vancouver.

Gosselin (Tutor of) v. Quebec (AG). [2005] 1 SCR 238. Judgements of the Supreme Court of Canada.

Greene, Ian. 1989. The Charter of Rights. James Lorimer & Company: Toronto.

Harvey, Colin; Schwartz, Alexander. 2012. Rights in Divided Societies. Hart Publishing: Oxford, United Kingdom.

Hélie, Michel. 2009. Michel Bastarache’s Language Rights Legacy. The Supreme Court Law Review.

Hogg, Peter. 1997. The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All) Osgoode Hall Law Journal: Vol 35, No 1.

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Kelly, James; Manfredi, Christopher. 2009. Contested Constitutionalism: Reflections on the Canadian Charter of Rights and Freedoms. UBC Press: Vancouver.

Knopff, Rainer; Morton, F.L. 2000. The Charter Revolution and the Court Party.

University of Toronto Press.

MacDonald v. City of Montreal [1986] 1 SCR 460. Judgements of the Supreme Court of Canada.

Mahé v. Alberta [1990] 2 SCR 217. Judgements of the Supreme Court of Canada.

Martel, Angeline. 2001. Rights, Schools and Communities in Minority Contexts: 1986-2002. Minister of Government Services: Ottawa.

Pollard, Bruce Gordon. 1981. Intergovernmental Relations in Canada: Struggle over the Constitution. Queen’s University: Kingston, Ontario.

Reference re: Secession of Quebec [1998] 2 SCR 217. Judgements of the Supreme Court of Canada.

Re: Manitoba Languages Act [1985] 1 SCR 721. Judgements of the Supreme Court of Canada.

Riddell, Troy. 2009. “Explaining the Impact of Legal Mobilization and Judicial Decisions: Official Minority Language Education Rights Outside Quebec” in Contested Constitutionalism, ed. Manfredi & Kelly, UBC Press; Vancouver.

R v. Mercure [1988] 1 SCR 234. Judgements of the Supreme Court of Canada.

Schabas, William. 1996. International Human Rights Law and the Canadian Charter. Carswell, Edition 2.

Taylor, Charles. 1993. Why Do Nations Have To Become States? Poli 521 Coursepack: McGill University 2016 Taylor, Charles. 1993. Shared and Divergent Values Poli 521 Coursepack: McGill University 2016

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II.

DECONSTRUCTING THE ISTANBUL CONVENTION An examination of the past, present, and future of the Council of Europe Convention on preventing and combating violence against women and domestic violence

PHOEBE WARREN

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ABSTRACT

ABSTRAIT

Violence against women, especially domestic violence, is rooted in the religious, cultural, and historical traditions of individual states’ practices of forced female subservience. Following a human rights internship with Liberal International, I was tasked with work pertaining to the advancement of the Istanbul Convention. Part I of this paper will give a chronological overview of various human rights instruments that have been influential in the development of the Istanbul Convention in order to understand its creation and content. Part II will examine the writing and current status of the Istanbul Convention as well as its potential political ramifications on women’s human rights law. Through such an analysis, Part III seeks to ascertain why the Council of Europe Convention on preventing violence against women and domestic violence is a groundbreaking women’s human rights law mechanism. It is too early to tell if its ratification into national governments has effectively staved off violence against women and domestic violence, but this data will become clearer with time.

La violence contre les femmes, en particulier la violence domestique, est établie dans les traditions religieuse, culturelles, et historiques des pays dont la soumission des femmes et une pratique courante. Ayant suivi un stage humanitaire chez “Liberal International”, j’ai été chargé de la recherche concernant l’avancement de la Convention d’Istanbul.

La première partie de ce document donne une présentation chronologique des événements humanitaires qui ont influencé le développement de la Convention d’Istanbul dans un but de pouvoir comprendre son contenu. La deuxième partie examinera son écriture et ainsi que son état actuel, ainsi que ses ramifications politiques potentielles sur le droit humanitaire des femmes .

La troisième partie cherche à vérifier pourquoi la Convention du Conseil de l’Europe sur la prévention et la lutte contre la violence à l’égard des femmes et la violence domestique est un document révolutionnaire pour le droit humanitaire des femmes. Il est trop tôt pour affirmer si la ratification de la Convention D’Istanbul a effectivement éviter une ou plusieurs formes de violence contre les femmes, mais ces données deviendront plus fondées avec le temps.

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iolence against women, especially domestic violence, is rooted in the religious, cultural, and historical traditions of individual states’ practices of forced female subservience. In Western civilization, these traditions can be traced back to the Roman code of Paterfamilias, which deemed husbands as head of household and gave them permission to mete out punishment to wives and children as seen fit (Saller 1999, 184-185). After the fall of the Roman Empire, the lasting influence of this code, combined with Biblical notions of patriarchal power, disseminated across what is now considered Europe. What we refer to today as violence against women and domestic violence was once considered a legitimate manner of “correcting” women by European governments and the Church. These societal norms allowed men to inflict violence upon women’s bodies in order to control their actions, resulting in actions such as wife-beating and marital rape.

Following the founding of the United Nations in 1945 as well as a growing interest in the protection of human rights , radical shifts in societal thought occurred towards violence against women and domestic violence and the 20th century ushered in a new era with significant legislation towards women’s health and safety. Since that time, improvements have been made on a societal level and as of 2010, 98% of EU citizens have heard of domestic violence.

Despite this, one women in three in the EU has experienced physical and/ or sexual abuse since the age of 15(European Union Agency for Fundamental Rights 2014). This issue continues to plague women today and the 21st century has brought attention back to the European regional level due to a demand to legislate the protection of women. One such piece of legislation is the Council of Europe Convention on preventing and combating violence against women and domestic violence, also and hereby known as the “Istanbul Convention”.

This paper is comprised of three sections: Part I presents the the legislative predecessors and influences to the Istanbul Convention in order to provide a foundational context for its content. Part II provides an analysis of the convention itself, in addition with the convention’s potential political ramifications on women’s human rights law. Through analyzing its past, present, and future, this paper seeks to demonstrate that the Council of Europe Convention on preventing violence against women and domestic violence is a groundbreaking women’s human rights law mechanism.

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I. LEGISLATIVE PREDECESSORS AND INFLUENCES TO THE ISTANBUL CONVENTION In order to understand the creation and content of the Istanbul Convention, it is vital to understand from where it evolved. One of the foremost scholars on the Istanbul Convention, Dr.Ronagh McQuigg, argued that while the Istanbul Convention is a “very significant step”, its “development cannot be seen in isolation, but instead must be viewed as part of the growing recognition of violence against women as a human rights issue” (McQuigg 2012, 2).

Interest in protecting human rights has grown since the early 20th century.

This section will give a chronological overview of various influential human rights instruments that have impacted the development of the Istanbul Convention in order to demonstrate the individuality and potential of the Istanbul Convention.

The United Nations Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on 10 December 1948 and ratified on 16 December 1948. After the horrors of two world wars, the United Nations was seen by the international community as a means to prevent human rights violations. According to Johannes Morsink, if the United Nations did not quickly address human rights issues, it would fail as quickly and drastically as its predecessor the League of Nations. With this in mind, the UDHR was drafted, voted upon, and adopted in less than two years (Morsink 2000, 12).

Because of its revolutionary 6 statements on the inalienability of human rights, the UDHR has proven to be “the single most often cited international human rights instrument and the one which, by far, has had the most moral force in international relations” (Langley 1999, 303). The declaration set a precedent for the creation and legitimacy of the Istanbul Convention.

The European Convention on Human Rights ( ECHR) was signed by all ten members of the new Council of Europe on 3 November 1950 and came into force on 3 September 1953. This far-reaching convention touches on a variety of human rights issues, from torture to religion. It focuses on the right to life and the “defense of any person from unlawful violence” (European Convention on Human Rights 1950, Article 2.8). According to Article 14, the rights in the convention are to be secured to all people, regardless of “sex, race, colour, language” among many others, it would appear that the defense from

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unlawful violence in Article 2 should include violence against women and domestic violence (European Convention on Human Rights 1950, Article 4.9).

While technically included in this definition, the convention lacks any specific articles that lay out a framework for protection against these crimes. Despite this shortcoming, the ECHR has since served as the inspiration and legal justification for other Council of Europe treaties including the Istanbul Convention as it is the foundational dedication to the human rights of all Europeans.

The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the UN General Assembly on 28 December 1979 and came into force on 3 September 1981. This convention, adopted during the height of the women’s liberation movement, has been called “one of the most powerful and socially transforming national and international movements of modern times” (Langley 1945, 68). CEDAW was the first female-specific instrument available on an international scale. In Article 1 of the convention, discrimination is defined as: “...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field” (United Nations Convention on the Elimination of All Forms of Discrimination Against Women 1979, Article 1).

Despite the fact that CEDAW fails to address the issues of violence against women and domestic violence within the realm of discrimination against women, the convention set an important precedent for two reasons.

First, it reaffirmed to the international community that women’s issues needed to be made a priority. Second, it created an independent monitoring body composed of twenty-three elected experts in their field to receive and consider reports from member states on their achievements or setbacks in fulfilling the commitments of the convention (Ross 2009, 13). While this independent monitoring body was not the first of its kind, the fact that it was assigned to CEDAW demonstrated a greater commitment to women’s human rights by the UN. Over time however, problems arose with this convention as the monitoring body was overloaded with work due to the increasing awareness of the growing number of women’s issues worldwide which came as a result of

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the founding of the UN. This resulted in the development of several regional legislative instruments, such as the Banjul Charter.

The Banjul Charter was adopted by the Organisation of African Unity (the precursor to the African Union) on 27 June 1981 and entered into force on 21 October 1986. It has been called the “weakest regional instrument” by women’s human rights lawyer Susan Deller Ross, but it is of significance to this because of its influence on the Council of Europe’s Istanbul Convention through its impact on the patterns of migration from Africa to Europe (Ross 2009, 167). Unlike the ECHR, the Banjul Charter makes mention of the rights of women, but this is contradicted with its focus on the protection of customary values. Article 17 states that “the promotion and protection of morals and traditional values recognized by the community shall be the duty of the State”, while just below this, Article 18 declares “the State shall ensure the elimination of every discrimination against women.” Susan Ross succinctly asks for a resolution - “If morals and traditional values require discrimination against women, how should this tension be resolved?” (Ross 2009, 168). This question is an issue that African nations grapple with to this day. The Protocol to the African Charter on the Rights of Women in Africa entered into force on 25 November 2005 and officially defined the terms “harmful practices” and “violence against women”, among other policies. (Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2005, Article 1). This positive step is most certainly one in the right direction but as it is less than 15 years old, time will tell whether or not it proves effective in decreasing gender-based violence.

The United Nations Declaration on the Elimination of Violence Against Women (DEVAW) was adopted and ratified on 20 December 1993. Created due to the “urgent need for the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human being”, DEVAW demanded support from the UN in halting violence against women. This declaration strengthened and built upon the work of the UN Convention on the Elimination of All Forms of Discrimination Against Women. In addition, it created the most widely used definition of violence against women: any act of gender-based violence that results in, or is likely to

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result in physical, sexual, or psychological harm or suffering to women — including threats of such acts, coercion, or arbitrary deprivation of liberty, whether occurring in public or private life (United Nations Declaration on the Elimination of Violence Against Women 1993, Article 1)

The declaration also called for the appointment of a Special UN Rapporteur on violence against women with the objective of having this person serve as an ombudsman who would look into causes of violence against women and recommend ways to eliminate them (Sandis 2006, 372). While the Special Rapporteurs work under the jurisdiction of the United Nations, their work benefits all people involved in work regarding violence against women as well as the Council of Europe and Istanbul Convention because of the wealth of knowledge they can provide. The precedents set by the UDHR helped usher in a decade of important legislative instruments that directly led to the drafting of the Istanbul Convention.

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (also and hereby known as Belém do Pará) was adopted by the Organisation of American States on 9 June 1994 and entered into force on 5 March 1995. This convention is the most advanced of the three regional instruments examined in this section. It is important to note the date; Belém do Pará was adopted almost forty-five years after the European Convention on Human Rights and is therefore understandably the most developed piece of regional legislation on gender-based violence. Mary K. Meyer wrote three years after the adoption of the convention that: With regard to wife abuse alone, different studies have found that in Santiago, Chile, and Quito, Ecuador, 60% of adult women sampled had been beaten by a partner. In Sacatepequez, Guatemala, the figure is 74%. Even in “peaceful” Costa Rica, 54% of women sampled at a child welfare clinic reported being physically abused (Meyer 1998, 136).

The convention defines important ideas such as violence against women, the inalienable rights of all women, and underlines the responsibilities of

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member states step-by-step in order to combat and condemn most forms of violence against women. While the convention is the most progressive of its kind, Winston Langley contends that one of its greatest weaknesses is its lack of definition of female genital mutilation and female genital cutting (Langley 1945, 157). As FGM is one of the most violent and widespread subcategories of violence against women, this is a great downfall of the convention. In 2008, it was discovered that FGM on newborn baby girls runs rampant among certain indigenous communities in Latin America, particularly that of the Emberá-Chamí tribe in the Colombian region of Risaralda (Motta 2013, 49). Such practices are deeply embedded in the roots of indigenous communities, and is legally considered a “cultural practice” due to the tribe’s protected indigenous autonomy.This renders FGM difficult to curtail once and for all (Motta 2013, 21). Despite this, Belém do Pará was one of the main influences of the Istanbul Convention which borrowed and built upon the former by contextually defining terms such as domestic violence, due diligence, and the obligations of member states.

The Beijing Declaration and Platform for Action was adopted by the United Nations on 15 September 1995 at the Fourth World Conference on Women. During the conference, Hillary Clinton famously stated that “women’s rights are human rights”, a quotation that has remained the focus of international women’s human rights work The conference and subsequent document have served as a blueprint for states all around the world for the past twenty years. As the amalgamation of prior UN declarations and conventions on women’s human rights, the Beijing Declaration and Platform for Action is an immense document in both size and scope, including but not limited to these issues: adopting and implementing legislation to end violence against women and domestic violence, working actively to ratify and implement all international agreements related to violence against women (including the UN Convention on the Elimination of All Forms of Discrimination against Women), adopting new laws and enforcing existing ones to punish members of security forces and police and any other State agents for acts of violence against women, setting up shelters, providing legal aid and other services for girls and women at risk, and providing counseling and rehabilitation for perpetrators of violence against women (Motta 2013, 373). While the Beijing Declaration and Platform for Action is merely a declaration while the Istanbul Convention

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is legislation, it yielded significant influence on the development of the latter due to its broad scope. It mentions both domestic violence and violence against women, includes female genital mutilation within the definition of violence against women, and has made necessary adjustments over time. The twentieth anniversary has been celebrated by the United Nations with a renewed international support of the commitment to ending violence against women.

II. ANALYSIS OF THE ISTANBUL CONVENTION The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Council of Europe Treaty Series No. 210, also and hereby known as the Istanbul Convention) was written as the 21st century’s answer to hundreds of years of human rights infractions again European women as well as women around the world. Called by UN Women Director Phumzile Mlambo-Ngcuka as “the most comprehensive international legally binding instrument on violence against women and domestic violence”, the Istanbul Convention encompasses and expands upon the ideas and goals of its predecessors (Mlambo-Ngcuka 2014, 23). This section examines the writing, contents, and current status of the Istanbul Convention while keeping in mind the context of the past international legislation and future implications and potential complications for women as well as children, the elderly, and men all around the globe.

Following the decision to implement comprehensive standards to prevent and combat violence against women and domestic abuse, the Committee of Ministers of the Council of Europe created the Ad Hoc Committee for Preventing and Combating Violence Against Women and Domestic Violence (or CAHVIO) in December 2008. The Council of Ministers is comprised of the foreign ministers of all 47 member states of the Council of Europe and is the decision-making body. Therefore the creation of this committee led quickly to the ministers’ approval of the preparation of a draft of the Istanbul Convention. CAHVIO worked on this document for two years until it finalized the draft of the convention in December 2010. This finalized draft was then adopted by the Committee of Ministers for the greater Council of Europe on 7 April 2011(Council of Europe).

The four aims of the Istanbul Convention can be summarized with the

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acronym PPPM - prevention, protection, prosecution, and monitoring. The combination of these four aspects make the convention unique among prior international legislation, particularly with the mention of monitoring (The Istanbul Convention Article 1, 1-2). However, in her examination of the Istanbul Convention, Ronagh J.A. McQuigg states that: although the adoption by the Council of Europe of a Convention on violence against women is certainly a very significant step, this development cannot be seen in isolation, but instead must be viewed as part of the growing recognition of violence against women as a human rights issue (McQuigg 2012, 2).

The 25 page convention consists of 81 articles that explicate the specific obligations, stipulations, definitions, creation of procedures and precedents for protecting not only victims of violence against women and domestic violence but also children, the elderly, and men. Uniquely, the text of the convention includes men as possible victims of domestic violence, as it is non-gender as defined below: All acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim (The Istanbul Convention, Article 3(b)).

The scope of violence that the Istanbul Convention protects against is more expansive but similar to legislation such as Bélem do Pará, including but by no means entirely comprising of: sexual harassment, rape, molestation, forced marriage, “honour” and gender-based violence, and genital mutilation/ cutting (The Istanbul Convention, Article 4(b)). As these sections are dispersed throughout the document, the 12 steps to comply with the convention are bulleted below.

1. Condemn discrimination against women 2. Invest in preventative measures

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3. Help victims get support 4. Protect victims at risk 5. Change the law so that it includes specific criminal offenses [...]

6. Enhance the performance of the police, the prosecution services, and the judiciary [...]

7. Empower victims in judicial proceedings 8. Design comprehensive policies for all branches of government 9. Recognize gender-based violence as a form of persecution when determining refugee status of women asylum seekers [...]

10. Respond to the special needs of children as victims or witnesses of domestic violence [...]

11. Recognize and support the role of NGOs and civil society 12. Collect national data and support research (12 Steps to Comply)

If signed and ratified, Council of Europe members would agree to enact all of the above steps through their national legislation. This includes the implied financial obligations and significantly, allowing external monitoring mechanisms to keep track of their adherence to the legislation. The convention is monitored by the Group of Experts on action against Violence against women and domestic violence, hereby known as GREVIO (The Istanbul Convention, Article 66(1)). The election procedures, composition, and 30 responsibilities of this monitoring body are detailed in Chapter IX of the Istanbul Convention. This monitoring mechanism is the most unique and significant portion of the convention in comparison to other international human rights legislation which generally does not mandate its own specific monitoring body.

The Inter-American Convention relies on the Inter-American Commission of Women which does not solely monitor BelĂŠm do ParĂĄ. The creation, implementation, and power held by GREVIO have proven contentious as monitoring mechanisms have not always been successful in the past when used by various UN human rights treaty reporting procedures such as the reporting guidelines of CEDAW (Council of Europe 2012, 12). Despite these 31 concerns, the first ten members of GREVIO were elected on 4 May 2015 and the

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monitoring body held its first meeting on 21-23 September 2015 (About GREVIO). It is a vital component of the convention, whose greater impact hinges upon the success of GREVIO. After its adoption by the Committee of Ministers on 7 April 2011, the Istanbul Convention was opened for signature a month later on 11 May 2011 at the 121st Session of the Committee of Ministers in Istanbul, Turkey (Council of Europe). The treaty was not only opened up to Council of Europe member states but 33 additional non-member states which participated in its creation (Canada, the Holy See, Japan, Mexico, and the United States of America) and the European Union. The initial signatories included (in alphabetical order) Austria, Finland, France, Germany, Greece, Iceland, Luxembourg, Montenegro, Portugal, Slovakia, Spain, Sweden, and Turkey. To date, there have been 39 signatories to the convention with nine countries (Armenia, Azerbaijan, Bulgaria, Czech Republic, Latvia, Liechtenstein, Moldova, and the Russian Federation) who have yet to take action of any sort. It is important to note that the majority of the non-signing members are 34 former members of the USSR. Since the collapse of the Soviet Union, these former Soviet Republics have been forced to grapple with adjusting their views of human rights. “Acutely problematic during Soviet times, rights of women... continue to be denied in post-Soviet Russia� (Nowakowski 2007, 1). The former Soviet Republics need to sign and ratify the Istanbul Convention, as they are among the countries in Europe most plagued by domestic violence and violence against women. For example, nearly 20% of women in Moldova have experienced sexual violence during their lifetimes, according to a study conducted by the United Nations Population Fund (United Nations Population Fund 2015, 6).

While it was important to have Council of Europe members sign the Istanbul Convention, it was even more vital that they incorporate it into national legislation. A clause in the text of the convention stated that: This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which 10 signatories, including at least eight member States of the Council of Europe, have expressed their consent to be bound by the Convention... (The Istanbul Convention, Article 75(3)).

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It was therefore important to gain ten ratifications as fast as possible in order for the entry into force. The first member to ratify the convention was Turkey on 12 March 2012. Understandably, it has been more difficult to secure ratifications to the Istanbul Convention than signatories as ratifying this piece of legislation requires significant dedication to resources of time, finances, and manpower while signing requires solely the intention to one day hold to the promises and responsibilities in the piece of legislation. To date there have been 19 ratifications in comparison to the 39 signatories (Chart of signatures and ratification of Treaty, 210).

The Istanbul Convention officially entered into force on 1 August 2014 after Andorra ratified the legislation on 22 April 2014, becoming the 10th Council of Europe member to do so. Since that time there have been nine additional ratifications, all among member states. Despite their ability to sign and ratify the convention, neither the European Union nor any of the non-member states have done so. Although having the Istanbul Convention into force was a great success, the fact remains that only 19 of the 47 members of the Council of Europe have ratified this important legislation. As the convention has been open for signing and ratifying since May 2011, this is should be looked upon as a blatant disregard for human rights protection on the part of the members.

In addition, several of the members who currently sit on the United Nations Human Rights Council are among the states that have made no action whatsoever, neither signing nor ratifying the convention, such as Latvia and Russia (Current Membership of the Human Rights Council 2015).

As long as the tragedy of violence against women and domestic violence exists, international human rights legislation such as the Istanbul Convention is of the utmost importance in order to one day see its demise. It is shameful that legislation such as this exists and is open for signatories and ratifications every day but remains unratified by more than 60% of European nations. Part III of this paper will examine what the next steps are for the Istanbul Convention, the responses from the European community in regards to the convention itself, and the larger issue of the problems that arise with the diffusion of international human rights mechanisms.

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III. POTENTIAL POLITICAL RAMIFICATIONS ON WOMEN’S HUMAN RIGHTS LAW Since the creation of the Istanbul Convention, there have been significant developments in terms of ratification as well as discourse on the convention itself (Council of Europe 2015). The independent monitoring mechanism GREVIO held its inaugural meeting in Strasbourg from 21-24 September 2015 during which Rules of Procedure were adopted and initial business was conducted (Dragoni 2015). While a period of one year may not seem of great consequence, this duration has highlighted the areas of strength and weakness with which the convention must address going forward (McQuigg 2015).

The convention clearly states that it is not solely the role of parties’ national governments to advocate for and enforce the binding nature of its articles. In regard to “comprehensive and coordinated policies”, Article 7(1) states: Measures taken pursuant to this article shall involve, where appropriate, all relevant actors, such as government agencies, the national, regional and local parliaments and authorities, national human rights institutions and civil society organisations”(Istanbul Convention, Article 7(1)).

This leaves a rather broad interpretation of the convention up to the parties themselves. It also explores how civil society and international institutions can influence both the dissemination and execution of the Istanbul Convention.

Civil society plays a major role in the dissemination and execution of the Istanbul Convention, particularly during its initial years of introduction.

Non-governmental organizations can initially play an important role by placing pressure on states to ratify the Istanbul Convention through the use of campaigns and lobbying (McQuigg 2015, 3, 6). Organizations like ICChange , a campaign urging the UK government to ratify the Istanbul Convention, Women’s Aid, a UK charity which aims to prevent domestic violence and violence against women, and the European Women’s Lobby, a lobby group that represents a number of women’s issues groups throughout Europe, have worked to use their influence as members of civil society to ratify the convention. Civil

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society can also play a significant role after ratification by placing pressure directly upon governments, by publicizing the existence of the duties contained therein, and the legally binding nature of these obligations (McQuigg 2016, 3). It is important to note that unlike other international mechanisms such as CEDAW, the Istanbul Convention is legally binding and breaking these laws requires due diligence, according to Article 5(2) of its text (Istanbul Convention, Article 5(2)). Finally, civil society can play a noteworthy part in ensuring that the convention is firmly embedded in local cultures (McQuigg 2015, 3).

This can be achieved, for example, through the establishment of comprehensive sex-education curriculum in schools. While changes within civil society would take considerable time and effort, they would significantly change attitudes and knowledge about domestic violence and violence against women.

The role of international institutions in the dissemination and execution of the Istanbul Convention should not be ignored despite the fact that the convention is already tied to an international institution - the Council of Europe.

Also known as intergovernmental organizations, these groups can also play a part in regard to encouraging states to ratify the convention. For example, the UN CEDAW Committee in its Concluding Observations on the reports of states which are members of the Council of Europe, but which have not ratified the Istanbul Convention, calls to do so as soon as possible (McQuigg 2015, 4). In the concluding observations for the United Kingdom, the CEDAW Committee states that it is concerned by “continued reports of violence against women, including domestic violence, affecting in particular black and ethnic minority women, and the so-called “honour killings” of ethnic minority women” (United Nations Committee on the Elimination of Discrimination Against Women 2013, Article 34). UN Special Rapporteur on Violence against Women Rashida Manjoo recently discussed the merits of the Istanbul Convention in a report to the greater UN Human Rights Committee, outlining unique policies that the convention puts into place with state ratification (United Nations Human Rights Committee 2015. 9-12). While the Special Rapporteur did not provide a personal recommendation for the ratification of the convention, she certainly appeared to believe in its merit due to the length and detail of the report. The category of international institutions also includes political internationals such as Liberal International, the political international federation of liberal-aligning parties. Its Human Rights Committee aims to spread the ratifi-

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cation of the Istanbul Convention not only to all member states of the Council of Europe but also worldwide, stating that: It is [our position] that the extension of the Istanbul Convention’s jurisprudence beyond the borders of Europe can help secure a much more effective and all-encompassing global women’s rights framework addressing the prevention and elimination of all forms of violence against women and girls (Liberal International 2015)

This begs the question - why should a human rights mechanism as far-reaching as the Istanbul Convention not be implemented globally? The answer lies in issues of diffusion.

European nations have had more than four years to sign and ratify the Istanbul Convention, so why has it been signed by 39 of 47 Council of Europe member states and ratified by a mere 19 of 47? European governments have faced difficulties in both signing and ratifying the convention for a variety of reasons, including but not limited to financial constraints, and policy complications on the domestic level.

The Istanbul Convention places substantial financial obligations upon member parties after its ratification. In regards to these obligations, Article 8 states that: Parties shall allocate appropriate financial and human resources for the adequate of integrated policies, measures and programmes to prevent and combat all forms of violence covered by the scope of this Convention, including those carried out by non- governmental organisations and civil society (Istanbul Convention, Article 8).

The convention also stipulates in Article 20(1) that it is the responsibility of the member party’s government to “ensure that victims have access to services facilitating their recovery from violence” and that this includes services such as “legal and psychological counseling, financial assistance, housing, education, training and assistance in finding employment (Istanbul Convention, Article 20(1)). These are not small financial demands from a government, especially while parts of Europe such as Greece are still suffering from the Eu-

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rozone crisis. Therefore it is understandable that, while one can assume that no European nation condones violence against women and domestic violence, some governments may be unable to commit to the financial and social cost that comes with signing and ratifying the Istanbul Convention.

Complications of state-specific policy on the domestic level have also hindered the diffusion of the convention. In the former Soviet Republic, a lack of understanding and protection of human rights legislation has impeded diffusion. While the internal policy of each European nation has its own complications, these convention-specific issues are particularly apparent in the case of the United Kingdom. Though the UK government signed the Istanbul Convention in 2012, they have yet to ratify it. As the convention was drafted by the Council of Europe, it can be easily argued that it is a European mechanism.

Prime Minister David Cameron and the Conservative-led government intend to hold a referendum by 2017 on the membership of the United Kingdom in the European Union. While the European Union and Council of Europe are clearly separate entities, they represent the regional idea of Europe and what it means to be a European. Another possibility, which the UK government has claimed as its reason for delaying ratification, is that national legislation would be required in order for the UK to comply with Article 44 of the convention, which “requires states to take extraterritorial jurisdiction in respect of each of the offenses established in accordance with the Convention” which would require legislation in the UK before any part of the criminal law could apply to conduct taking place abroad, due to current stipulations (McQuigg 2015, 1). Therefore it would take a great deal of change to criminal code before the United Kingdom could legally uphold all of the responsibilities required of ratifying states, though it is possible and has been deemed as an important next step. This is further complicated by the devolution of powers from Westminster to the Scottish Parliament and Northern Ireland Assembly. In a February 2015 report, the UK Joint Committee on Human Rights expressed its concern over “the Government’s lack of engagement with the devolved administrations regarding the ratification of the Istanbul Convention because they are responsible for implementing the same positive obligations in their territories” (Joint Committee on Human Rights 2015, 62). It is clear that internal policy complications can sometimes prevent Council of Europe member parties from ratifying the convention even if public opinion or the government itself wants to do

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so. Unfortunately, ratification of the Istanbul Convention requires more than merely the desire to eradicate violence against women and domestic violence.

Despite these setbacks, the Istanbul Convention has attracted the attention of members of the international political community. Many notable advocates for human rights have come out in favor of the convention as a powerfully effective mechanism for the eradication of violence against women and domestic violence. In an address to the European Regional Review meeting for the Beijing+20 campaign, Her Royal Highness Crown Princess Mary of Denmark urged European governments to ratify the Istanbul Convention, calling it a “milestone for ending violence against women” (UN Women 2014). In a video statement for the Liberal International Istanbul Convention Campaign, President of the Parliamentary Assembly of the Council of Europe Anne Brasseur referred to the convention as “an important convention to protect women against violence” (Brasseur 2015). The future of the Istanbul Convention has the potential to progress in any direction; having just celebrated its first anniversary since coming into force, there is little to no data to state whether or not the provisions have helped deter violence against women and domestic violence. It is up to civil society, international institutions, governments, and the international political community to determine its future if it is to succeed.

In ten years, this important time in the development of human rights legislation by way of the Istanbul Convention will be looked upon and regarded with either pride or disappointment; for the sake of women, men, children and the elderly, hopefully it is the former.

IV. CONCLUSION The Istanbul Convention’s potential as an exceptional protector of human rights in Europe has become increasingly clear. It draws from the incremental improvements brought with each preceding mechanism and declaration, from the United Nations Universal Declaration of Human Rights of 1948 to Belém do Pará in 1995. Being in a unique position to draw on more than 50 years of previous legislation, the convention proves itself unique in its breadth of inclusionary factors such as a broad definition violence and its independent monitoring mechanism. This has resulted in its ratification by nineteen Council of Europe member states. Less than five years since its drafting, the Council

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of Europe has thus far proven itself successful in terms of gaining these ratifications.

However, the Istanbul Convention has already faced challenges and will continue to do so until it, along with other human rights mechanisms, defeats the issues of violence against women and domestic violence. The lack of signatures from eight countries should be seen by the rest of the European community as a blatant disregard towards a promised commitment to protect the safety and well-being of women.

Despite these setbacks, it appears that the Istanbul Convention has been created and implemented with the best chance for success of any other regional mechanism of its kind. It is too early to tell if its ratification into national governments has effectively staved off violence against women and domestic violence, but this data will become clearer with time. It is now the role of civil society to lobby governments until signatures and ratifications are gained in order to ensure the success of the Istanbul Convention and the eventual extinction of all forms of violence around the world.

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WORKS CITED “12 Steps to Comply.” Istanbul Convention: Action against Violence against Women Domestic Violence. Accessed October 25, 2015.

“About GREVIO.” Istanbul Convention: Action against Violence against Women and Domestic Violence. Accessed October 25, 2015.

African Union, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, Adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (13 Sept. 2000); reprinted in 1 Afr. Hum. Rts. L.J. 40, entered into force Nov. 25, 2005.

Brasseur, Anne. “Anne Brasseur in Support of the Istanbul Convention Campaign.” YouTube video, 1:12. August 12, 2015. https://www.youtube.com/ watch?v=nGuyyTUiYtc. “Chart of signatures and ratification of Treaty 210” Istanbul Convention: Action against Violence against Women and Domestic Violence. Accessed October 25, 2015.

Council of Europe. Council of Europe Convention on the Elimination of Violence Against Women and Domestic Violence [Istanbul Convention], (Istanbul, 7 Apr. 2011) CETS-210, 11.V.2011 (2011), entered into force 1 Aug. 2014.

Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.005 (1950), entered into force Sept. 3 1953.

Council of Europe. ”First Anniversary of the Entry into Force of the Istanbul Convention.” Istanbul Convention Action against Violence against Women and Domestic Violence. August 1, 2015. http://www.coe.int/en/web/istanbul-convention/-/cras-varius-lorem-nec-tempus-molestie.

“Current Membership of the Human Rights Council, 1 January - 31 December 2015.” United Nations Human Rights Council. Accessed October 25, 2015.

Dragoni, Gabriella Battaini. “Speech by Gabriella Battaini Dragoni” Speech at the First meeting of the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), Strasbourg, France, September 21-23, 2015.

European Commission. “Special Eurobarometer 344: Domestic Violence against Women Report.” September 2010.

“Europe Must Ratify the Istanbul Convention to Fight Violence against Women.” Amnesty International News. Accessed October 25, 2015.

European Union Agency for Fundamental Rights. “Violence against women: an EU-wide survey - Main results.” 2014.

“Historical Background.” Istanbul Convention: Action against Violence against Women and Domestic Violence. Accessed October 25, 2015.

Langley, Winston. Encyclopedia of Human Rights Issues since 1945. Westport, Connecticut: Greenwood Press, 1999.

Liberal International. ”Istanbul Convention Campaign.” Human Rights Committee Campaigns. August 1, 2015.

McQuigg, Dr. Ronagh. “A Contextual Analysis of the Council of Europe’s

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Convention on Preventing and Combating Violence against Women.” International Human Rights Law Review 1, no. 2 (2012): 367-81.

McQuigg, Dr. Ronagh. “The Future of the Istanbul Convention.” E-mail interview by author. November 6, 2015.

Meyer, Mary. “Negotiating international norms: The Inter-American Commission of Women and the Convention on Violence Against Women”. Aggressive Behavior., 24. (1998) 135–146.

Mlambo-Ngcuka, Phumzile. “Vision Award 2014.” Future Policy Awards. Switzerland, Geneva. UN Women. Web. Morsink, Johannes. “Chapter 1: The Drafting Process Explained.” In The Universal Declaration of Human Rights: Origins, Drafting, and Intent. Philadelphia, Pennsylvania: University of Pennsylvania Press, 2000.

Motta, Christina. “Chapter 2: Citizenship.” In Gender and Sexuality in Latin America: Cases and Decisions. New York, New York: Springer Publishing, 2013.

Nowakowski, Arianna. “Introduction: Human Rights in Russia and the Former Soviet Republics” In Human Rights & Human Welfare. Denver, Colorado: University of Denver, 2007.

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Ross, Susan Deller. Women’s Human Rights: The International and Comparative Law Casebook. Philadelphia, Pennsylvania: University of Pennsylvania Press, 2009.

Saller, Richard P. “Pater Familias, Mater Familias, and the Gendered Semantics of the Roman Household.” Classical Philology 94, no. 2 (1999): 182-97.

Sandis, E. E. “United Nations Measures to Stop Violence against Women”.

Annals of the New York Academy of Sciences, 187: 370-383 United Nations Committee on the Elimination of Discrimination Against Women. Concluding observation on the seventh periodic report of the United Kingdom of Great Britain and Northern Ireland, (Geneva, 17 Jul. 2013) CEDAW/C/ GBR/CO/7 (2013).

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United Nations General Assembly. Declaration on the Elimination of Violence against Women, G.A. res. 48/104, 48 U.N. GAOR Supp. (No. 49) at 217, U.N. Doc. A/48/49 (1993).

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November 7, 2014.

III.

THE FRAGILE DEMOCRACIES OF MUSLIM SOUTHEAST ASIA The cases of Indonesia and Malaysia

ETIENNE KOEPPEL

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ABSTRACT

ABSTRAIT

This research paper is a case study analysis of the two largest Muslim democracies in Asia: Indonesia and Malaysia. It starts its analysis by presenting the theoretical background on Islam’s compatibility with democracy. It makes known the two opposing trends in academic literature, which are

Cet article est une étude de cas des deux plus grandes démocraties musulmanes d’Asie: l’Indonésie et la Malaisie. Il commence son analyse en présentant le contexte théorique sur la compatibilité de l’Islam avec la démocratie. Il fait connaître les deux tendances opposées dans la littérature académique:

1) Islam is utterly and inherently incompatible with democracy, and

1) L’islam est totalement et intrinsèquement incompatible avec la démocratie et

2) Islam is easily reconcilable with democratic values.

Once the literary groundwork has been lain down, it proceeds to analyze a core feature of democracy: pluralism. Using pluralism as a sort of litmus test, it finds that while some multiculturalism and tolerance exist, more can be done to consolidate their democracies.

The last section of the research looks at religious freedom, civic/political freedom and women’s rights. These specific and unequivocal measures of democracy facilitates the conclusion that Southeast Asian democracies, though on the right path, still have a ways to go before obtaining the status of true democracies.

2) L’Islam est facilement conciliable avec les valeurs démocratiques.

Une fois le fondement littéraire fixé, il analyse une caractéristique fondamentale de la démocratie: le pluralisme. Utilisant le pluralisme comme une sorte de test décisif, il constate que, bien qu’il existe un certain multiculturalisme et une certaine tolérance, on peut faire davantage pour consolider les démocraties de ces deux pays.

La dernière section de la recherche porte sur la liberté religieuse, la liberté civique / politique et les droits des femmes. Ces indices spécifiques et non équivoques de la démocratie permettent de conclure que les démocraties de l’Asie du Sud-Est ont encore du chemin à parcourir avant d’obtenir le statut de véritable démocratie.

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Liberal democracy broadly refers to a political system that combines democratic rule with human rights. Generally, democratic rule implies popular sovereignty, and an accountability of leaders to the population (Bollen, 2009).

Many academics have argued there is a fundamental incompatibility between Islam and democracy. Huntington, for instance, directly opposes the West to the rest of the world, and by amalgamation, liberal democracy to Islam and other non-Western civilizations (Huntingdon, 1993). This essay focuses on Indonesia and Malaysia, two Muslim-majority countries of Southeast Asia that ostensibly weaken Huntington’s theory, in that they are, to varying extents, democratic. Yet how genuine are these Southeast Asian democracies in reality?

The research question I attempt to answer is the following: are values of liberal democracy compatible with Islam in Southeast Asia? Through the methodical analysis of core values and their application in Indonesia and Malaysia, I argue that they are liberal democracies in their most fragile state. I divide my essay into three parts.

The first part is an analysis of the overarching theory. Once I have established that there is, in fact, academic backing for the compatibility of Islam and liberal democracy, I delve into the comparative analyses of Indonesia and Malaysia. Part two examines pluralism in both countries, which I set forth as one of the bedrocks of liberal democracy. The last part is dedicated to various human rights. I look at religious freedom, political rights and women’s rights in an attempt to assess the extent to which Indonesians and Malaysians are free, in a liberal-democratic sense.

I. CAN ISLAM BE RECONCILED WITH DEMOCRACY? According to many academics, Islam and democracy are fundamentally irreconcilable. In his groundbreaking thesis, Huntington considers the greatest fault line between civilizations to be the “West versus the rest”. By amalgamating the West with liberal democracy, Huntington makes conflicting nonWestern civilizations natural opponents of democracy. He even goes so far as to claim Islam has “bloody borders” (Huntingdon 1993), implying the Islamic civilization is inherently at odds with even the most basic freedoms of liberal democracy, such as the right to life.

Though confined to Middle Eastern countries, Kedourie’s analysis deems

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the concept of constitutional government foreign to Muslim culture (Kedourie, 1992). For him, Islam is such an inherently political religion, it cannot accommodate democracy. In fact, he puts it quite blatantly: “the idea of democracy is quite alien to the mind-set of Islam” (5). The sole concept of popular sovereignty, for instance, defies the idea of a one and almighty God, to whom believers owe obedience in Islam. Separation of powers and gender equality under the law are also things Kedourie considers inconceivable for Islamic regimes.

Alfred Stepan’s “twin tolerations” posits that secularism is a core feature of democracy (Stepan, 2000). Without a clear separation between the state and religion, democracy is impossible. Stepan goes even further, delineating aspects of Islam that directly conflict with democratic values. The lack of space for public opinion in the making of laws is derived from the Qur’an, which states that only God can make laws. The lack of inclusive citizenship is derived from the concept of the ummah (Muslim community), which can be the only one true polity.

However, there is an equally large body of literature that argues for Islam’s compatibility with democracy. Stepan himself nuances his stance on the interaction of Islam and politics when he contends that all religions are multivocal (Stepan, 2001). Stepan argues that within the same religious doctrine, there is a multiplicity of voices and ideas that compete. Indeed, it would seem Islam’s compatibility with democracy depends on the interpretation of its doctrine. Stepan’s concept of multivocality defies the Huntingtonian idea that radical Islam is the mainstream Islam. Osama bin Laden and Abu Bakr al-Baghdadi are voices of a minority in the large crowd that is Islam.

Carrie Wickham, when talking about the moderation of Islamist political parties around the world, employs the term “liberal Islam” (Wickham, 2004, 207). More and more, progressive Islamist parties are calling for ijtihad, which she defines as “the use of human reasoning to adapt enduring Islamic principles to modern times” (Wickham, 2004). Such political parties stay true to their faith, while putting weight on those Islamic texts that foster ideas of representation, human rights and pluralism. Ahmad Moussalli studied such Islamic concepts (that he even calls doctrines), which do not only resonate with democracy, but embody it (Moussalli 2003). To cite a few, there is the concept of shura, or consultation; ijma, or consensus; al-huriyya, or freedom, and

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even al-huqquq al- shar’iyya, or legitimate rights (Moussalli, 2003, 207). Scarce are the scholars to mention these deeply liberal doctrines, yet they are present throughout the Hadith and the Sunna.

The literature thus far seems to be unresolved on the question of Islam and democracy. For the sake of this essay, I will adopt Stepan’s point of view, which he elicits in his theory on multivocality. A sweeping statement about Islam and its compatibility, or lack of thereof, with democratic values is misguided. To truly understand such an interaction, one must look at specific countries, as each national interpretation of religion calls for a different situation.

II. THE SITUATION OF INDONESIA AND MALAYSIA: PLURALISM Pluralism, which can be understood as multiculturalism, is essential to liberal democracy for two reasons. Firstly, pluralism presupposes toleration.

According to Sartori, intolerant pluralism is false pluralism (Sartori, 1997, 58). Freedom of religion and of conscience are meaningless unless pluralism is toleration. Secondly, the existence of diverse, competing interests is the very foundation of democracy.

Indonesia and Malaysia are acclaimed to be tolerant, multicultural societies; and to some extent they are. Abdurrahman Wahid, colloquially known as Gus Dur, was the leader of Nahdatul Ulama (NU), the largest Islamic organization in Indonesia. In his struggle against the autocratic Suharto regime, Gus Dur stood for religious pluralism. His political party, PAN, even included non-Muslims in its leadership. In fact, he ran his victorious presidential campaign party on the explicit grounds that he was against an Islamic state, and in support of religious pluralism (Stepan, 2000). Given his quasi-hegemonic popularity (Hefner, 2002, p. 758) in Indonesia, one can infer that such pluralistic mentalities were shared by a large part of the population. Moreover, the founding principle of Indonesia, the Pancasila, enshrines a pluralistic ethos.

Under the name of “Godly nationalism” (Menchik, 2014), the Indonesian state recognizes six official religions: Islam, Confucianism, Buddhism, Hinduism, Catholicism and Protestantism. As long as one belongs to one of the former six religions, one is included in Indonesia.

In the 1990s, Mahathir sought to radically modernize Malaysia. In trying to move away from Bumiputeraism, he coined the term Bangsa Malaysia, or

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“Malaysian nation” (Mandel, 2001). Bumiputera literally translates to “sons of the soil”, and refers to ethnic Malays and was a Malay-centric ideology, that had been defining politics since Malaysia’s independence (Hamayotsu, 2002). With Bangsa Malaysia, therefore, Mahathir hoped to promote a transethnic national identity. He hoped to create a political community that could see above cultural divisions (Mandel, 2001, 142). Today, the country seeks to cultivate an image of harmonious diversity internationally. Rozita Ibrahim, for instance, showcases how popular media paints a healthy multicultural picture of Malaysia, showing ethnic Malay, Chinese and Indian children playing together (Ibrahim, 2007).

A priori, this bodes well for the sustainability of Southeast Asian democracies. Yet are they truly tolerant? Are we not facing cases of, as Sartori puts it, “false pluralism”? For Indonesia, the brevity of Wahid’s presidential mandate corroborates. Indeed, barely two years after his landslide victory in 1999, Gus Dur’s presidency came to an end. Hefner argues part of the explanation for this premature removal of power has to do with the outbreak of “fierce” ethno-religious violence in 1999 (Hefner, 2002). Duncan describes the violence as an ethnic conflict, mainly perpetrated by Muslim militias who attacked Christian Indonesians (Duncan, 2013). The author goes further in his account of the violence, claiming that for both perpetrators and victims, the conflict was considered a “holy war” (Duncan, 72). With Juergensmeyer’s concept of cosmic violence in mind (Juergensmeyer, 2003), can we consider truly pluralistic a society of individuals whose identity is so threatened they must kill each other?

If violence is the opposite of tolerance, then Indonesia’s tolerant multicultural image must be put into question.

Malaysia presents a similar case of inconstant toleration. Fealy and Hooker note how Islamist leaders are notoriously uncompromising with movements considered as “deviationist” (Fealy and Hooker, 2006, 57). Malays are overwhelmingly Sunni Muslims, and Shi’a Muslims are not allowed to practice their faith openly. In fact, their discrimination is even codified in national legislation, which allows for the indefinite detention without trial of Shi’a Muslims (Fealy and Hooker, 2006). This in-group intolerance is comparable to the attitude Indonesians have towards Ahmadis, which I explore in the next section on human rights. Furthermore, there seems to be state-led discrimination against minority ethnic groups in Malaysia. Lee Hock Guan’s study looks at the

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marginalizing effects of affirmative action in Malaysia (Guan, 2005). Usually, it is the disadvantaged groups that receive preferential treatment by the government. However, he reveals how ethnic Malays have been the recipients of preferential policies, at the expense of Indian and Chinese minority groups. As a result, the latter groups experience more difficult access to higher education and suffer from more poverty. Shekhar supports this claim in his analysis of the marginalization of Indian Malays (Shekhar, 2008). According to the author, a culture of majoritarian politics has emerged in Malaysia. Such practices have led to the “politicoeconomic marginalization” (Shekhar, 2008, 23) of minority ethnic Indians, who have been victims to economic marginalization, persecution and denial of political rights.

In light of such instances of intolerance in Indonesia and Malaysia, one can be brought to question the soundness of their liberal democracies. In both cases, moreover, it is apparent that local Muslims perpetrate injustices and intolerant behaviors.

III. CIVIL AND HUMAN RIGHTS IN INDONESIA AND MALAYSIA The question of pluralism and tolerance is closely tied with a number of civil freedoms, the most salient of which is perhaps religious freedom. The prolonged mistreatment of the Ahmadiyah sect by Indonesian Sunni Muslims suggests Indonesia’s “tolerant brand of Islam” (Menchik, 2014) is uncertain.

Menchik sees the systematic oppression of and intolerance toward Ahmadis as necessary for the conservation of the idea of the Godly nation that is Indonesia.

Indeed, like with other forms of nationalism, the persecution of outside groups serves to consolidate the in-groups, to reinforce their cohesion. Yet what does this say about Indonesian liberal democracy? Unless all members of the community are equal in rights, is democracy genuine? The persecutors would argue that the Ahmadiyah are a “moral deviation”. Such a rationale might indicate the Indonesian state and civil society hold religion to a higher standard than liberalism. In that case, this is an instance of religion, and specifically Islam, undermining liberal-democratic values. The oppression of the Ahmadis and the constraint on their religious freedom is the very exemplification of Indonesia’s quasi- democracy.

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Malaysia also displays a false image of secured religious freedom. Article 11 of the Malaysian constitution guarantees freedom of religion to all citizens, regardless of the religious doctrine (Shah and Sani, 2011)1. On the face of it, such a legal provision, which is remarkably more inclusive than Indonesia’s stance on religious pluralism, would seem like enough to safeguard such a fundamental right. However, in practice, things are different,especially regarding Islam. Malaysia being a self-declared Islamic state, the border between religion and state is blurry. For instance, its legal system holds that apostasy for Muslims, or the renunciation of Islam, can be considered political treason, and a rebellion against the Islamic state (Carroll, 2009). This is troubling, since freedom of religion does not only entail the right to practice it, but also the right to choose it.

Regarding political freedoms, Indonesia is not necessarily a role model.

Though elections are perceived as free and fair, Vltchek notes that this is mostly the case only for Jakarta and Bali (Vltchek 2012). The majority of the population lives in the countryside, where people are frightened to vote against their local leaders. Through his interviews of countryside Indonesians, the author conveys the “deep-rooted horror” (Vltchek, 2012, 79) that some rural-dwellers experience when voting. This puts into question the free choice of the people.

In addition to the use of coercion, the authors remark the presence of corruption. Bribery of voters by political parties and irregularities at the ballot boxes are commonplace; yet localities lack the mechanisms to properly investigate such malpractices.

In Malaysia, despite the regularity of elections, Taya points to the limited fairness of elections (Taya, 2010). Mostly due to gerrymandering, voting districts across Malaysia tend to ensure Malay domination. Indeed, given that Malays also mostly live in the countryside, the redrawing of voting constituencies to include more Malays has given them what Taya calls “rural weightage”.

It would seem that ethnic Malays are disproportionately represented in parliament due to such districting. Furthermore, much alike Indonesia, Malaysia presents some hints of voting irregularities. In her detailed analysis, Taya brings up the widespread suspicions of local leaders regarding the impartiality of Malaysia’s own Election Commission (Taya, 2010). The former commission is the body that makes sure election procedures are law-abiding. Despite being

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an independent body, there are nation-wide suspicions that it is in fact under the control of the government. Such claims seem somewhat realistic when one considers that the Malay-based UMNO (United Malay National Organization) has essentially been in power ever since the country’s independence in 1957.

Looking at the current composition of the upper house of Malaysian parliament, the Senate, one finds a drastic overrepresentation of ethnic Malays. The UMNO-led coalition, Barisan Nasional, occupies 55 seats out of 77, which is over 78% of the total seats (Parlimen website). Such Malay domination is surprising, given that only 50.1% of the population is ethnic Malay. This overrepresentation is implicit, however, since it is possible, though unlikely, that non-Malays would vote for a Malay-dominated political coalition. Malaysian politics appear to mirror the country’s fallacious pluralistic image; thus reinforcing the marginalization of ethnic Indians and Chinese in favor of Muslims.

Women’s rights are unequally developed in Muslim Southeast Asia. This is perhaps one of the only points where Indonesia and Malaysia differ in terms of civil and human rights. Whereas Malaysia is more progressive in such respects, Indonesia lags behind. There has been a push for women’s rights in Indonesian civil society, led by ‘Aisyiyah and Nasyiat ul-‘Aisyiyah (NA), the women’s branches of the second largest Muslim organization in the country, Muhammadiyah (Van Doorn-Harder, 2013). Despite these efforts, Mulia notes the deeply entrenched gender inequity that remains in the country (Mulia, 2013). The inferior role of the woman is codified in national legislation, and legitimized by Islamic religious interpretations. The author refers to a “law culture” that perpetrates patriarchal values and systemically segregates women.

The Indonesian Islamic Code of Law, for instance, explicitly defines women as sexual objects and affirms their subordinate role (Mulia, 2013, 111). In everyday life, this gender inequity manifests itself in the form of violence perpetrated onto women, ranging from domestic violence to human trafficking (Mulia, 2013, 112).

Malaysia on the other hand, is surprisingly liberal in its stance on women’s rights. Despite a continuous “Islamization” of society (Stivens, 2013), the growing influence of Islam has gone hand in hand with progress. By progress, here, I mean in respect to women’s rights; I use it as a synonym of liberalism, or the opposite of reactionary attitudes. The role of the woman in many fundamentalist Islamic texts is rather submissive and inferior to the man’s. Yet it

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can be argued that Islam in Malaysia was actually able to adapt the “modern” female role. Stivens remarks how women in Malaysian society occupy more and more “white-collar” jobs (Stivens, 2013, 152) and have undergone incredible advances in education. In fact, an earlier work of hers (Stivens, 2000) shows women have been outnumbering men in many university courses. However, it is interesting to note that the “modernization” of the Malaysian woman’s role is an indigenous one. The resurgence of the veil as part of an Islamic revivalism has been happening in parallel to women’s emancipation, mainly as a form of resistance to “Western modernity” (Stivens, 2013).

IV. CONCLUSION At first sight, Indonesia and Malaysia appear surprisingly democratic for Muslim countries, especially in comparison to more radical, Arab Muslim states. While it is true that both countries have secured basic elements of liberal democracy, there is still much room for growth. Regular elections, partial multiculturalism and incomplete civil and human rights are not enough to deem Muslim Southeast Asian democracies successful. In the light of my research, I argue that the future of liberal democracy in the region can either flourish or wither away. What is certain is that, despite some clashes, Islam and liberal democracy are theoretically compatible. Their relationship depends mainly on the interpretation of Islamic religious doctrine. With the current waves of Islamic revivalism happening in Southeast Asia, it is hard to tell whether Islam will evolve into a democracy-friendly form or an anti-Western, fundamentalist one. A third, likely possibility is that Islam will merge with current democratic trends to create its own, native brand of “Islamic democracy”.

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WORKS CITED Bollen, K. A. (2009). “Liberal Democracy Series I, 1972-1988: Definition, measurement, and trajectories”. Electoral Studies, 28(3), 368-374.

Carroll, B. (2009). “A Struggle with Faith: Freedom of Religion in Malaysia”.

Religion and Human Rights, 4(2), 101-106.

Central Intelligence Agency. (2014). Malaysia. In The World Factbook. Retrieved on 21/04/16 from https://www.cia.gov/library/publications/the-world-factbook/geos/my.html Fealy, G., Hooker, V. M. (2006). Voices of Islam in Southeast Asia: A contemporary sourcebook.

Singapore: Institute of Southeast Asian Studies.

Guan, L. H. (2005). “Affirmative Action in Malaysia”. Southeast Asian Affairs, Volume 2005, 211-228.

Hamayotsu, K. (2002). “Islam and Nation Building in Southeast Asia: Malaysia and Indonesia in Comparative Perspective”. Pacific Affairs, 75(3), 353-375.

Hefner, R. W. (2002). “Global Violence and Indonesian Muslim Politics”.

American Anthropologist, 104(3), 754-765.

Huntington, S. P. (1993). “The Clash of Civilizations?”. Foreign Affairs, 72(3), 22-49.

Ibrahim, R. (2007). “Multiculturalism and Education in Malaysia”. Culture and Religion, 8(2), 155-167. Juergensmeyer, M. (2003). “Religion as a Cause of Terrorism”. In Richardson, L. (Ed.) The Roots of Terrorism. New York: Routledge, 133-144.

Parlimen official website (Malaysian Parliament website). Accessed on 21/04/16: http://www.parlimen.gov.my/statistik.html?uweb=dn& Mandel, S. K. (2001). “Boundaries and beyond: whither the cultural bases of political community in Malaysia?”. In Hefner, R. W. (Ed.) The politics of multiculturalism: Pluralism and citizenship in Malaysia, Singapore, and Indonesia. Honolulu: University of Hawai’i Press, 141-164.

Menchik, J. (2014). “Productive Intolerance: Godly Nationalism in Indonesia”.

Comparative Studies in Society and History, 56(3), 591-621.

Moussalli, A. S. (2003). “Islamic Democracy and Pluralism”. In Safi, O. (Ed.) Progressive Muslims: On justice, gender and pluralism. Oxford: Oneworld, 286-305.

Mulia, S. M. (2013). “Towards Justice in Marital Law: Empowering Indonesian Women.” In Schroeter, S. (Ed.) Gender and Islam in Southeast Asia: Women’s Rights Movements, Religious Resurgence and Local Traditions. Leiden, NL: Brill, 111-142.

Sartori, G. (1997). “Understanding Pluralism”. Journal of Democracy, 8(4), 5869.

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Shah, D. and Sani, M. (2010-2011). “Freedom of Religion in Malaysia: Tangled Web of Legal, Political, and Social Issues”. North Carolina Journal of International Law and Commercial Regulation, 36(3), 647-688.

Shekhar, V. (2008). “Malay Majoritarianism and Marginalised Indians”. Economic and Political Weekly, 43(8), 22–35.

Stepan, A. C. (2000). “Religion, Democracy, and the ‘Twin Tolerations’”. Journal of Democracy, 11(4), 37-57.

Stepan, A. C. (2001). “The World’s Religious Systems and Democracy: Crafting the Twin Tolerations”.

In Arguing Comparative Politics. New York: Oxford University Press.

Taya, S. L. (2010). “Political Legal Perspective: Evaluating Human Rights in Malaysia”. Asian Journal of Social Science, 38(3), 485-504.

Van Doorn-Harder, N. (2013). “Polygamy and Harmonious Families: Indonesian Debates on Gender and Marriage.” In Schroeter, S. (Ed.) Gender and Islam in Southeast Asia Women’s Rights Movements, Religious Resurgence and Local Traditions. Leiden, NL: Brill, 55-72.

Vltchek, A. (2012). Indonesia: Archipelago of Fear. London: Pluto Press.

Wickham, C. R. (2004). “The Path to Moderation: Strategy and Learning in the formation of Egypt’s Wasat Party”. Comparative politics, 36(2), 205-22

IV.

EVIDENCE OF COLONIALISM Evaluating the Evolution of the Judiciary’s Treatment of Traditional Indigenous Oral Evidence in the Canadian Context

GRETA HOAKEN

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ABSTRACT

ABSTRAIT

In this paper, I challenge the neutrality of the Canadian legal system, arguing that its treatment of Indigenous oral evidence demonstrates its inherent bias towards Western, written, and linear accounts.

I argue that while the increasing incorporation of the traditional oral evidence of Indigenous peoples is an important step for the Court, ultimately, more must be done in order to eliminate unfair and exclusionary hierarchies within the legal system that silence voices of Indigenous Canadians, or privilege settler voices over native ones. I examine a variety of cases, namely Delgamuukw v British Columbia [1997] and Tsilhqot’in v. British Columbia [2014], in order to paint a picture of how the Courts’ handling of Indigenous oral evidence has changed over time, and to outline several issues with the Court’s approach. I end with suggestions for how the Court can seek to rectify these holes.

Dans cet article, je conteste la neutralité du système juridique canadien, en faisant valoir que son traitement des preuves verbales indigènes démontre son favoritisme envers des comptes occidentaux, écrits et linéaires. Même si l’incorporation croissante des témoignages verbaux traditionnels des peuples autochtones est une étape importante pour la Cour, il faut faire davantage pour éliminer les hiérarchies injustes et exclusives au sein du système juridique qui font taire les Canadiens autochtones, ou privilégient les voix des colons à celles des autochtones. J’examine divers procès, à savoir Delgamuukw c. Colombie-Britannique [1997] et Tsilhqot’in c. Colombie-Britannique [2014], afin de décrire comment la façon dont les tribunaux ont traité les preuves verbales indigènes a changé avec le temps, et afin de présenter plusieurs problèmes dans la façon dont la Cour aborde cette question. Je termine avec des propositions sur la façon dont la Cour peut chercher à corriger ces problèmes.

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T

he Canadian legal system paints itself as a neutral facilitator of dialogue among parties, basing decisions on a proper weighing of the facts presented. Indeed, there is a strong case for the value of a neutral judiciary as described above – one that does not approach the parties and stories at play with any bias. Although the ideal role of the judiciary may be to act as a neutral arbiter, Canadians must contend with the reality that this is not its current actual role. This can be clearly seen in how the Canadian Courts have dealt with traditional oral evidence presented by Indigenous peoples in support of their claims. Masquerading under the guise of neutrality, the Canadian system’s privileging of certain voices through evidentiary standards has continued a legacy of subordination for Indigenous peoples.

This paper will argue that while the increasing incorporation of the traditional oral evidence of Indigenous peoples is an important step for the Court, more must be done in order to eliminate unfair and exclusionary hierarchies within the legal system. First, an explanation of what constitutes traditional oral evidence will be provided, as well as an understanding of evidentiary standards within the Canadian legal system and how they are discriminatory to Indigenous voices. Next, a variety of cases will be examined, namely Delgamuukw v British Columbia [1997] and Tsilhqot’in v. British Columbia [2014], in order to paint a picture of how the Courts’ handling of Indigenous oral evidence has changed over time. Lastly, several issues with the Court’s approach will be outlined, as well as suggestions for how the Court can seek to rectify these holes.

Throughout this paper, it is vital to remember that the law itself “is not a neutral force; it both shapes and reflects social norms and constructs”; while evidentiary burdens and privileging of evidence might seem to be abstract legal concepts, they have very real effects, as will be demonstrated, and their bias against Indigenous people has only served to further perpetuate inequality and injustice within Canada (Babcock, 2012: 36).

I. WHAT IS TRADITIONAL INDIGENOUS ORAL EVIDENCE? The term “Indigenous evidence” is a loaded one. One does not hear “Canadian evidence” used as a term in the courts – rather, this is encompassed within the term “evidence” itself. This sets up a standard whereby the norm

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and the neutral is actually what is based in Western legal tradition. Even the strongest defenders of Indigenous oral testimony generally do not argue that it is similar or comparable to a Western conception of evidence (Borrows, 2001: 11). This paper does not seek to argue that Indigenous evidence should be worked into the existing legal framework – for the reasons outlined above, that framework has been shown to be already based in normative beliefs and qualifications. Rather, I argue, the system must change to accommodate this difference, and must recognize the distinct yet equally deserving status that this type of evidence holds.

But what, exactly, constitutes this type of evidence? Indigenous evidence that is presented in litigation often “comes from expert witnesses and testimony from Indigenous witnesses, elders and community members, regarding oral traditions and the Indigenous perspective” (Hutchins, 2004: 4). Beyond the simple retelling of a historical narrative, the presentation of this evidence has included the use of “pictoglyphs, wampum belts, masks, totem poles, button blankets, culturally modified environments, and stories, to name a few, to remember and interpret what happened in the past” (Borrows, 2001: 18).

Unlike Western oral evidence, “the concept of time in oral traditions is sometimes not linear”, and often there is an element of mysticism, symbolism, and interpretation (Hutchins, 2004: 20). Oral history “can reveal the intellectual, social, spiritual, and emotional cognition of the event for the group in question”, but it often requires interpretation and specific knowledge of the culture and context from which it emerges in order to do so (Borrows, 2001: 11). Indigenous legal scholar John Borrows characterizes it as “polyfuncitonal”, and compares its historical, spiritual, and emotional significance to that of the Bible and other religious texts, encompassing a mixture of literal and psychological facts. (Borrows, 2001: 35) Indigenous evidence often has a shifting or multifaceted purpose, existing to recollect a group’s history, provide spiritual guidance, and contribute to a nation’s sense of self-definition (Borrows, 2001: 10). Beyond the establishment of facts, oral evidence can be an important way to understand a group’s “understanding of their own past”, which is “ as much a part of history as are more verifiable facts” (Borrows, 2001:11).

Indigenous knowledge is often passed down in stories over generations, and there are generally individuals that are responsible for preserving its integrity (Awan, 2014: 705). These individuals are highly regarded in the com-

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munity, and their roles are seen as integral parts of the nation (Hutchins, 2004: 21). Thus, oral evidence has a certain stature and importance in Indigenous communities that is not seen in Western ones.

Indigenous evidence is becoming more important with the increase in definition of Indigenous and treaty rights under section 35 of the Constitution Act 1982. As scholar David Milward writes, Indigenous oral histories can potentially provide evidentiary proof of facts such as to satisfy the legal tests for Indigenous rights claims. For example, oral history descriptions of past cultural activities can be used to satisfy the integral to a distinctive culture test. Oral history descriptions of past sites of settlement and land use activities can be used to satisfy the tests for land title. Oral histories concerning negotiations with Canadian officials may be relevant to establishing the parameters of treaty rights. Oral history evidence can also affect the strength of an Indigenous rights case for purposes of interim remedies under Haida. (Milward, 2010: 291).

The Court has created rigid standards for proving Indigenous and treaty rights in its section 35 jurisprudence, such as in R. v. Van der Peet [1996], where it created the test of the same name for determining if an Indigenous right exists. In response to the claim of Dorothy an der Peet of the Sto:lo Nation’s claim that she had an Indigenous right to catch and sell salmon without a license, the court created a test that established the need for the right to be linked to an element of ancestral practice, custom, or tradition that is integral to an Indigenous society. This practice had to mark that society as distinctive and show a reasonable continuity between pre-contact practice and this right (R. v. Van der Peet). Justice McLachlin and Justice L’Heureux-Dubé criticized this heavy evidentiary burden in their respective dissents. Subsequent modifications of the test still hold Indigenous communities to a high standard of proof.

Because “the evidence gathering process in litigation involving Indigenous and treaty rights is primarily focused on the re-creation of events which occurred hundreds of years ago, and on the re-creation of societies and cultures

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as they existed hundreds of years ago”, this area of law has a uniqueness that requires unique understanding and treatment of evidence (Hutchins, 2004: 3).

There is “ no other area of the law where history and cultural history so determine the outcome” (Hutchins, 2004: 4). To try to apply the values of Western legal tradition to Indigenous conceptions of evidence is, in effect, “to destroy them” (Pylpchuk, 1991: 67).

The Canadian legal tradition has a very different conception of what constitutes appropriate and admissible evidence, one that is largely based in “Eurocentric assumptions” (Hutchins, 2004: 4). In Western legal tradition, written evidence is usually privileged over oral recounts, specific narratives seen as preferable to general ones, and linear recollections are viewed as superior to circular ones (Hutchins, 2004: 4). There is little to no space in this tradition for symbolism within narratives, eyewitness accounts over those that are repeated through generations, and collective memory (Hutchins, 2004: 4). The system believes, ultimately, that its “methods are the best ones – that is why they have been handed down through generations and codified,” despite the fact that written historical documents are no more immune from bias and subjectivity than oral accounts, and carry their own bias and subjectivity (Hutchins, 2004: 4).

Alexander von Gernet is one of the more vocal opponents to the incorporation of Indigenous legal tradition and evidence within Western systems, maintaining that these oral histories must be “subjected to intense and critical scrutiny before they can be accepted as persuasive proof of facts before a court of law” (Milward, 2010: 296). His argument is that oral histories by nature are prone to alteration over time due to the unreliability of human memory, the passing of histories down through generations, and changing circumstances. (Milward, 2010: 296). Defenders of Indigenous tradition, like Borrows, counter these arguments by maintaining that the special position of this evidence within Indigenous societies, the important roles played by those who are tasked with recounting it, and the fact that these histories form the core of identity for the nations that hold them make it very unlikely that this sort of “broken-telephone” errors will occur (Borrows, 2001: 8). The Courts must, he says, appreciate that oral evidence holds a special status within Indigenous communities that it does not within Western ones; thus, the treatment and preservation of it between communities is different, as must be the weight it is

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afforded. Borrows writes, Oral history in numerous Indigenous groups is conveyed through interwoven layers of culture that entwine to sustain national memories over the lifetime of many generations. The transmission of oral tradition in these societies is bound up with the configuration of language, political structures, economic systems, social relations, intellectual methodologies, morality, ideology, and the physical world (Borrows, 2001: 8).

Even if, Borrows contends, oral tradition does change over time, he maintains that this, “does not mean that oral history is of no value”. Rather, “it means that sometimes (though not always) it has value for different purposes”, and the Courts must consider this (Borrows, 2001: 10). The “conjunction of oral history and external data demonstrates that there may be instances where oral history and other methodologies converge and be used to verify one another”. Borrows argues that, “lawyers, judges, and historians observing and participating in the transmission of oral history should be cautious in judging the differing and sometimes shifting purposes of oral tradition” (Borrows, 2001: 13). He characterizes this approach as, “evidence combined with interpretation” (Borrows, 2001: 18).

In addressing the privileging of written evidence over oral evidence, Borrows maintains that this is largely the result of the privileging of one value system over another, and a failure to account for different cultural valuations of evidence (Borrows, 2001: 18). More than that, he challenges the infallibility of written evidence, maintaining that just because a document is written does not make it true (Borrows, 2001: 8). This is especially true given that many written accounts are based on the very oral accounts that scholars like von Gernet take issue with.

Even more, Borrows charges that the written text only tells one part of the story, and offers the Western perspective (Borrows, 2001: 20). This is especially true for treaty interpretation, as many Indigenous communities see treaties as extending beyond what was written down. An example would be many nations of Treaty 6 territory, who view the treaty as encompassing a fundamental and universal right to healthcare, as provided by the state (Venne,

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1994: 197). To ignore oral evidence that attests to this position would be to shut out entirely the Indigenous party’s understanding of the treaty, and signals the Court’s privileging of one perspective and interpretation over another.

Beyond the overall context of Canadian law, there are specific evidentiary standards and rules that discredit and disadvantage important Indigenous evidence. Evidence law in Canada relates to the acceptable means of establishing a fact in support of a legal claim or defence, and derives from two main sources (Pylpchuk, 1991: 56). The first is statute law, which is composed of all the legislative acts of all levels of government in Canada. The second is the common law, often referred to as “judge-made law”, which is made up of precedents and legal traditions (Pylpchuk, 1991: 56).

While countries like South Africa and England have became more inclusive in their evidentiary standards through legislative changes, this is not true for Canada (Newman, 2005: 441). It is through changes in the second source, common law, that Indigenous evidence has been able to make its way into the Courts as an accepted and legitimate form.

Admissible evidence in the Canadian context “must be material, relevant and not excluded by any rule of the law of evidence” (Pylpchuk, 1991: 56).

Statutes and common law have a variety of principles for the weighing and admissibility of evidence that define what this means – unfortunately, many are exclusionary to Indigenous oral evidence. For example, the concept of ‘real evidence’ pertains to exhibits of physical objects offered for inspection by the court, and can pertain to written historical documents (Pylpchuk, 1991: 56).

Written and physical evidence is privileged over oral evidence, a clear privileging of Western valuations of evidence over Native ones (Pylpchuk, 1991: 56).

However, there exists non-oral Indigenous evidence, such as poles that record historical or genealogical information, or in other artefacts (Pylpchuk, 1991: 56). Given that the vast majority of judges do not have knowledge of these customs and traditions, this evidence is often undervalued or ignored.

Even within the Western legal tradition oral evidence is permitted; the problem is that it is placed in a hierarchy below written evidence. Defined as “testimony of a witness under oath”, the evidence provided must reflect personal knowledge, and the witness must be competent (Pylpchuk, 1991: 57).

Direct evidence is “the testimony of an eyewitness to the specific fact under consideration; all other types of evidence are circumstantial (Pylpchuk, 1991:

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57). In a land-claims case, “Indigenous testimony about a land-use custom may be direct if it refers to current practice, whereas testimony about ancestors might be considered circumstantial evidence” (Pylpchuk, 1991: 57). It is a judge that determines the relevance of circumstantial evidence, which can be problematic if the judge in question does not know, or makes insufficient attempt to understand, the significance of Indigenous evidence to the community. Van der Peet set up a standard where an Indigenous interest must be “cognizable to the Canadian legal and Constitutional structure” – this poses difficulties for oral evidence, and its importance and weight is often not cognizable within that sphere (R. v. Van der Peet). Hearsay has thus been “the greatest objection to admitting Indigenous oral traditions as evidence”, particularly when they are passed down through generations (Pylpchuk, 1991: 57).

Within a purely Western context, the mistrust of hearsay evidence makes sense, as it “is information relayed by a third party: the originator of the statement cannot be cross-examined under oath and directly assessed” (Pylpchuk, 1991: 57). However, in an Indigenous context, where the stories and narratives in question are sacred, and where community members have specific roles pertaining to their preservation, this is less of an issue. What the holder of this knowledge today can tell the Court should be virtually identical to that of a knowledge holder decades before – that is the entire point.

As we will see in later detailing of Canadian jurisprudence on Indigenous oral evidence, “the Supreme Court of Canada has now set out a different framework for the admission of hearsay evidence, the principled approach” (Milward, 2010: 292). Two key determinants must be met: necessity and reliability. Necessity pertains to the inability of obtaining the evidence from a witness directly, such as in cases where the witness has died or become unfit to take the stand (Milward, 2010: 292). Reliability speaks to the ability of oral evidence to either hinder or help the truth, and pertains to its underlying veracity (Milward, 2010: 293).

The rules pertaining to expert opinion speak to who is able to deliver oral evidence and the subsequent weight it is afforded. The test for the admissibility of an expert witness’ testimony is set out in R. v. Mohan [1994], and is based on four criteria: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert. Expert opinions and “the admission of inference or professional-opinion testimony by expert witnesses

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is the major exception to the rule against hearsay evidence” (Hutchins, 2004: 18). In Indigenous law cases, where judges are clearly not well versed – if at all – in Indigenous customs and culture, it seems fitting that experts should take the stand to provide appropriate context. However, “experts in Indigenous law cases have typically been anthropologists, historians and biologists, who have offered data about the traditional land-use activities of Indigenous groups”, and not community members themselves (Pylpchuck, 1991: 57). Indigenous people are often still labeled “lay witnesses”, and although this has been changing with the Court’s expanding jurisprudence and acceptance of Indigenous oral evidence, the logic of presuming “that the authoritativeness of an Elder who testifies on oral tradition must be determined on the basis of the culture of that Elder” is often not followed (Hutchins, 2004: 18).

Best evidence is a standard that calls into question the source of evidence, and creates a hierarchy of sources. Commonly explained, the rule serves to require “originals instead of copies of documents. However, it has also been instrumental in evaluating the admissibility of oral tradition in Indigenous land claims cases, a novel application which has created legal precedents” (Pylpchuck, 1991: 54). Whether or not a Court considers oral evidence to be “best evidence”, often at the discretion of the trial judge, can have an enormous impact on the case (Pylpchuck, 1991: 54). Historically, this rule has been used to undervalue or exclude Indigenous evidence, particularly in the face of written, Western tradition-based evidence.

Judicial notice “is applied by a judge to facts that do not, in his or her opinion, require proof” (Pylpchuck, 1991: 56). In cases that involve Indigenous rights, “judicial notice is routinely applied to well- known historical information” (Pylpchuck, 1991: 56). Knowledge about the facts in a treaty, however, cannot be assumed; these documents are therefore required in physical form, as real evidence, and do not fall under this rule.

The Court may be dissuaded from allowing Indigenous evidence to be heard because it can expose the illegality or unconstitutionality of past actions and thus undermine the legitimacy of the law. (Borrows, 2001: 11). In this sense, the Court is not a neutral actor because it is in its interest to protect the state, of which it is an arm, and to hide or forget its past transgressions against Indigenous peoples. For example, as in Delgamuukw, evidence “not only provided information that supported the Githsan’s and Wet’suvet’en’s historic use

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and occupation of their territories, but also contained a competing jurisprudential narrative that potentially strained Canada’s claim to legal exclusivity in the area” (Borrows, 2001: 27). These are realities that the Canadian state, legal system, and society might not be ready to, or want to, deal with.

II.

INDIGENOUS

EVIDENCE AND THE DELGAMUUKW

COURTS:

BEFORE

We now turn our attention to a more specific question: how have the Canadian courts, namely the Supreme Court of Canada, dealt with Indigenous evidence? While the 1997 decision in Delgamuukw by the SCC forever changed the way Canadian courts treat Indigenous evidence, it is important to understand the significance of that change by examining how the Courts operated before this landmark decision. The cases preceding Delgamuuwk, although not entirely devoid of progress, can be largely characterized as exclusionary and discriminatory to Indigenous peoples and their evidence. In Calder v. British Columbia (AG) [1973], where the Nisga’a claimed that the entirety of the Nass Valley was theirs by virtue of their Indigenous rights, “descriptions of the ancestral societies of the plaintiffs were provided, primarily by experts and textual historical materials”, and anthropological and geographical evidence was considered. (Pulpchuk, 1991: 59). In Kanatewat et al v James Bay Development Corporation and AG of Canada [1973], where the James Bay Cree tried to halt construction of a dam project on what they claimed as their land, in a gruelling 78 day hearing the Court examined testimony of 167 witnesses, saw 312 exhibits, more than 10,000 pages of transcribed evidence (Pulpchuk, 1991: 59). In establishing an original and continuous occupancy to the land, “Indigenous plaintiffs and their ancestors, the testimony and records of anthropologists and clergymen, as well as archival records from missions and fur-trading posts, were used as evidence” and “Indigenous witnesses were called to testify about their own families and land-use activities” (Pulpchuk, 1991: 59). However, the historical evidence was subsequently declared hearsay and therefore inadmissible. The fact that the Court did hear the evidence in the first place before ultimately rejecting it can be viewed as a step forward (Pulpchuk, 1991: 59).

In the case of Ontario v. Bear Island [1984], in which the Court ruled on

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an Indigenous land claims case in northern Ontario, the judge concluded “Indian oral history is admissible in Indigenous land-claim cases where their history was never recorded in writing. However, this does not detract from the basic principle that the court should always be given the best evidence” (Ontario v. Bear Island). While another step forward, the judge cautioned the need to remember the faultiness of human memory when considering oral evidence, and relegated oral evidence to a clearly second-tier status. He warned that “the defendants should not rely entirely on non-Indian historical, anthropological or other evidence when Indian evidence is available.’” (Pulpchuk, 1991: 65).

Here we see the principle of best evidence impeding on recognition of Indigenous oral tradition.

In R. v. Van der Peet [1996], while placing a hefty evidentiary burden of proof on Indigenous peoples seeking to claim Indigenous rights, the Court also stated that: “[t]he courts must not undervalue the evidence presented by Indigenous claimants simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case.” However, the Court stressed that the Indigenous perspective “must be framed in terms cognizable to the Canadian legal and constitutional structure” – thus seeking to fit Indigenous narratives within the established Canadian legal structure.

III. DELGAMUUKW: EVIDENCE OF CHANGE?

The decision by the SCC in Delgamuukw is largely viewed as one that overcame unjust evidentiary barriers for hearing of Indigenous claims after it ruled that oral history was broadly admissible as evidence in Indigenous claims (Newman, 2005: 433). This was largely viewed as a direct challenge to the traditional approach of discrediting or devaluing Indigenous oral evidence. The case was a massive land claim by Gitksan and Wet’suwet’en hereditary chiefs.

Although the outcome of the case at the SCC did not produce an answer in relation to this title claim, its significance lies in its treatment of oral evidence (Pulpchuk, 1991: 64).

At trial, Justice McEachern based his decision on the privileging of historical details over Indigenous traditional evidence, favouring “scientifically tested data and archival records, and [mistrusting] evidence that relied for its

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legitimacy on Indigenous traditions” (Pulpchuk, 1991: 72). He characterized the native societies in question as living in a “legal and jurisdictional vacuum” prior to the colonial assertion of sovereignty over them, a flawed perspective that portrays Indigenous peoples as being incapable of having their own laws and social organization (Bell, 1998; 264) The court explicitly rejected McEachern’s approach, and in doing so implicitly modified the treatment of hearsay evidence (Newman, 2005: 442). It wrote of a need for a “special approach” in receiving and interpreting evidence from Indigenous claimants, especially when it “does not conform precisely with the evidentiary standards” that would be otherwise used in private law cases (Borrows, 2001: 22). It reads, Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.

This is a long-standing practice in the interpretation of treaties between the Crown and Indigenous peoples (Delgamuukw v. BC).

Rather than to dispute that Indigenous oral evidence is hearsay, the Court embraced it, and asserted “the laws of evidence must be adapted in order so that this type of evidence can be accommodated and placed on equal footing with the types of historical evidence that courts are familiar with” (Delgamuukw v. BC). To do otherwise, would “’impose an impossible burden of proof’ on Indigenous peoples, and ‘render nugatory’ any rights that they have” (Delgamuukw v. BC).

Although obviously a big step forward for Indigenous claimants’ rights, the decision itself still poses problems. In emphasizing reconciliation, the Court qualified this by saying that it should be done so that there is not a “[strain on] the Canadian legal and constitution structure” (Delgamuukw v.

BC). This shows the unwillingness of the Canadian legal system to fundamentally change, and emphasizes the need for Indigenous evidence to fit within its framework – even if that framework becomes marginally more open.

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IV. POST-DELGAMUUKW: MOVING BACKWARDS Decisions by the lower courts following Delgamuukw can be characterized as exhibiting a schizophrenic trajectory, with different decisions allowing for a different level of inclusion of oral tradition. This is perhaps because the lower courts misinterpreted what the Court sought to do in Delgamuukw, or simply disregarded the crux of it in favour of their own interpretation. Even in subsequent Supreme Court decisions, the legacy of the case was not always clear. This led to something of ‘legal schizophrenia’ moving forward (Hutchison, 2004: 11).

In R. v. Marshall [1999], the court reiterated its position that oral traditions are “admissible as evidence where they are both useful and reasonably reliable, subject to the exclusionary discretion of the trial judge” (Hutchison, 2004: 14). In Mitchell v MNR [2001], Justice McLachlin stressed the “continued applicability of the rules of evidence”, even with adaptations to permit the use of oral history, reinforcing the unwillingness of the system to bend too much. This is an example of the oscillation of the court between emphasizing the need to accommodate tradition, but also the unwillingness to push evidence law too far.

In Benoit v Canada [2003], the Federal Court of Appeal (the Supreme Court refused leave to appeal) ruled that Mitchell established a boundary on oral historical evidence that could not be crossed, meaning that hearsay evidence must be rejected if it did not meet the appropriate test of reliability (Newman, 2004: 444). The case concerned the tax exemption that was available to signatories of Treaty 8 (Hutchins, 2004: 7). This decision by the lower court “opens new challenges to oral history, particularly as to how, practically, the reconciliation with evidentiary principles is to take place” (Newman, 2004: 444). This can be seen as “a powerful theoretical reconciliation of evidentiary principles and Indigenous oral history…[which] the Supreme Court of Canada’s cases left relatively unaddressed [regarding] how this reconciliation was to work in judicial practice…something which the lower courts began to run up against more seriously” (Newman, 2004: 444). Benoit is largely seen as a step backwards for admission of Indigenous evidence – although, given the hierarchy of the Courts, it does not alter the precedent set by the SCC in Delgamuukw.

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In Newfoundland v. Drew [2003], a case concerning the Mi’kmaq of Conne River in Newfoundland’s claim to have Indigenous and treaty rights to fish, hunt and trap, the Court relied, as in Benoit, on Eurocentric assumptions that privileged preservation of principles of evidence over Indigenous rights (Hutchison, 2004: 9). As a result, the Court concluded that the Mi’kmaq had not established the existence of these rights in Newfoundland. However, a majority of the Court of Appeal overturned lower court, and said that the right did exist, notably because the decision afforded more weight to oral histories (Hutchison, 2004: 9). The back and forth of these cases is the product of the attempt of the Courts to find the correct balance between preserving evidence laws and accommodating Indigenous practices. It is, as is evidenced above, a delicate one to strike, and produced a veritable legal tug of war between various judges and levels of the courts.

V. TSILHQOT’IN: NEW TERRITORY The greatest step forward in the inclusion of traditional oral evidence, as well as the biggest title case came in 2014 with Tsilhqot’in Nation v. British Columbia. It is no coincidence that these two advancements came in the same case, as the latter was very much dependent on the inclusion of the former. The case involved the Tsilhqot’in Nation of BC seeking a declaration of title from the court over its ancestral land.

Initially, “Justice Vickers of the British Columbia Supreme Court found that the Xeni Tsilhqot’in nation had provided persuasive proof such as to satisfy the tests for land title,” and specifically noted that “it was his judicial duty to consider, on the merits, whether the oral history evidence provided reliable and independent proof of facts alleged, even where uncorroborated by other evidence” (Milward, 2010: 295). He felt that to not do so would have “been to treat the evidence in ethnocentric fashion” (Milward, 2010: 295). In a 458page decision, Justice Vickers noted that, “in order to truly hear the oral history and oral tradition evidence presented in these cases, courts must undergo their own process of de-colonization” (Kopecky). Given the long history of imbedded and unrecognized ethnocentrism in Canadian courts, this decision is striking.

The trial, which lasted five years and spanned 339 days of court hearings,

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included the evidence of twenty-niine Tsilhqot’in witnesses (Kopecky). Of this number, twenty-six were elders, many of whom were over eighty years old – almost none of them spoke English as a first language. In order to accommodate the fact many of the witnesses could not make the journey to Victoria, Justice Vickers “relocated his court to the Nemiah Valley in early winter 2003, converting a classroom in the local elementary school into a courtroom” (Kopecky). Additionally, “because some of the elders would tell legends such as that of Salmon Boy only at night, Vickers periodically held special evening sessions of court” (Kopecky). This type of accommodation, virtually unheard of, allowed for a more authentic and just telling of the Tsilhqot’in side of the case. Ultimately, Vickers concluded the nation had proved ancestral occupation to 100 percent of the claim area and therefore had the right to use the land (Kopecky).

Appealed twice, the decision ultimately found itself in the Supreme Court of Canada, where it was decided in 2014. The SCC unanimously ruled that the nation did have title, although it limited the scope to only 1,900 square kilometers of the traditional territory (Kopecky). This was the first time that an Indigenous group in Canada had won a title claim. Relating to evidence, the case also established additional criteria for Indigenous evidence that fell under the best evidence rule. This addressed “the methods of preserving, transmitting, and protecting oral history’s truth, selecting who qualifies to learn and tell the group’s history, as well as information on the expertise, reliability, reputation, and personal knowledge of witnesses” (Kopecky). It marked a substantial broadening of the scope of evidence accepted, and shows an attempt of the court at reconciling with Indigenous peoples by meeting them halfway – not merely insisting on the accommodation of Indigenous oral evidence within terms that are cognizable to the existing Canadian legal structures.

VI. ROLE OF SECTION 35 Although evidence is not mentioned or addressed under section 35, which entrenched Indigenous and treaty rights in the Canadian constitution, the two are linked. Section 35 makes it easier to litigate and define Indigenous rights, and therefore Indigenous oral evidence now has more of a place within the Canadian context. Hope M. Babcock engages in the comparative, stating

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that, Unlike Canada, the United States does not have a constitutional directive to “reconcile” indigenous and non-indigenous interests.

Without this type of constitutional amendment in the United States, U.S. courts have little motivation to lend evidentiary credence to tribal oral history in support of Indian land claims (Babcock, 2012-2013: 22).

Ultimately, more than section 35 influencing evidentiary procedure, the effect has been the opposite. The establishment of thresholds and tests for when a group has title, a treaty right, or an Indigenous right means that the scope and nature of the evidence that gets put forward affects how these rights are defined. As is seen above in Tsilhqot’in, when proper credence is given to the Indigenous perspective it becomes far easier for Indigenous peoples to meet the standards established by the Court in order to claim these rights. An expansion of evidentiary procedures leads to an expansion of Indigenous rights in Canada.

VII. MOVING FORWARD Now that the Court, since Tsilhqot’in, appears to be moving towards a more open acceptance of Indigenous oral evidence, the focus must shift, I argue, to ensuring that the best evidence possible is put forward. What was most striking at the trial level of the Tsilhqot’in decision was the importance of the testimony of community elders, which was only possible with substantial accommodation by the Court. By physically moving to meet Indigenous peoples, altering the way testimony was gathered, and showing a genuine openness to listen, the Court was able to meaningfully reconcile with these communities in how it gathered evidence.

As Peter W. Hutchins notes, “the structure of the Canadian court system, with its adversarial focus, is generally completely foreign to the structure and presentation of indigenous oral narratives”, which may serve to dissuade people with important testimony from participating in the process (Hutchins, 2004: 4). John Borrows speaks of the issue of the treatment of Indigenous el-

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ders by lawyers and judges. He writes: Indigenous elders frequently have to endure questioning and procedures that are inconsistent with their status in their communities. The wisdom they have attained and the struggles they have endured in acquiring this knowledge demand that they be shown the highest honour and deepest respect. While there is no doubt that presenting evidence in an adversarial setting is a harrowing experience for most people, this can be especially troubling for elders from certain groups where such treatment would be tantamount to discrediting their reputation and standing in the community….To directly challenge or question elders about what they know about the world, and how they know it, strains the legal and constitutional structure of many Indigenous communities. To treat elders in this way can be a substantial breach of one of the central protocols within many Indigenous nations, somewhat akin to asking judges to comment on their decision after it is written”(Borrows, 2001: 32).

In order for this legal, evidence-based reconciliation to continue, I argue that the next step forward is in embracing non-traditional methods of evidence gathering, as Justice Vickers partook in during the Tsilhqot’in trial. This serves to address the structural challenges posed by an inherently adversarial legal system disadvantaging Indigenous voices by dissuading them from even participating in the first place. Borrows concurs, claiming, “unless the Court is willing to change its entire approach to the reception, interpretation, and use of evidence, it may not be able to implement effectively its call to accommodate Indigenous oral history on an equal footing to other forms of evidence” (Borrows, 2001: 28).

VIII. CONCLUSION Reconciliation requires the movement of both parties, and a general willingness to accommodate. Until relatively recently, a proper movement towards reconciliation has not been witnessed in Canadian jurisprudence re-

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garding the inclusion of traditional Indigenous oral evidence. Despite small steps backwards, cases like Delgamuukw and Tsilhqot’in have made important strides in expanding evidentiary requirements to allow other voices to enter the courtroom and be properly considered. The next step is to ensure that these voices get there in the first place, which will require far more structural changes and accommodation by the court, as were begun in Justice Vickers’ work as the trial judge in the initial Tsilhqot’in case.

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WORKS CITED Awan, Rachel, 2014. “Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?” Penn State Law Review 118(3): 697-727.

Babcock, Hope M. 2012-2013. “This I Know From My Grandfather”: The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims” American Indian Law Review 37(1): 19-61.

Bell, Catherine. 1998. “Canadian Supreme Court: Delgamuukw v. British Columbia”. International Legal Materials 37(2): 261-333.

Borrows, John. 2001. “Listening for a Change: The Courts and Oral Tradition”.

Osgoode Hall Law Journal 39(1): 1-38.

Calder v British Columbia (AG) [1973] S.C.R. 313 Delgamuukw v British Columbia [1997] 3 S.C.R. 1010 Elliott, David W. Law and Aboriginal Peoples in Canada. Concord: First Captus Press, 2005.

Furniss, Elizabeth. 1999. “Indians, Odysseys and Vast Empty Lands: The Myth of the Frontier in the Canadian Justice System”. Anthropologica 41(2): 195-208.

Gilbert, Jeremie. 2007. “Historical Indigenous Peoples’ Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title”. The International and Comparative Law Quarterly 56(3): 583-611.

Hutchins, Peter W. 2004. “Aboriginal Law: Litigation Issues – Mixed Messages, Double Standards, Eurocentrism and High Hurdles: Evidentiary Challenges in Aboriginal Litigation”. The Continuing Legal Education Society of British Columbia 23(4): 1-38.

Kopecky, Arno. “Title Fight” The Walrus. June 22, 2015: http://thewalrus.ca/ title-fight/.

McHugh, P.G. 2014. “Time Whereof – Memory, History and Law in the Jurisprudence of Aboriginal Rights”. Saskatchewan Law Review 77: 137-170.

Isaac, Thomas. Aboriginal Law: Commentary and Analysis. Saskatoon: Purich Publishing Limited, 2012.

Kanatewat et al. v. James Bay Development Corp. et al., [1975] 1 S.C.R. 48.

Milward, David. 2010. “Doubting what the Elders have to say: A critical examination of Canadian judicial treatment of Aboriginal oral history evidence”. Journal of Evidence and Proof 14: 287-325.

Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33 Newman, Dwight D. 2005. “Tsilhqot’in Nation v. British Columbia and Civil Justice: Analyzing the Procedural Interaciton of Evidentiary Principles and Aboriginal Oral History”. Alberta Law Review 43(2): 433-449.

Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570 Pylpchuck, Mary. 1991. “The Value of Aboriginal Records as Legal Evidence in Canada: An Examination of Sources”. Archivaria 1(32): 51-77.

R. v. Marshall, [1999] 3 S.C.R. 456 R. v. Mohan p1994] 2 S.C.R. 9

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R. v. Van der Peet, [1996] 2 S.C.R. 507 Renteln, Alison Dundes., Brad R. Roth., and Chris tenant. 1999. “Proceedings of the Annual Meeting (American Society of International Law”. American Society of International Law 93: 52-56.

Tsilhqot’in Nation v. British Colombia [2014] 2 SCR 257 Venne, Sharon.“Understanding Treaty 6: An Indigenous Perspective.” In Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference, edited by Michael Asch. Vancouver: UBC Press, 1997.

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V.

LA FIN DE L’AVANTAGE LIBERAL? Le Comportement Électoral des NéoQuébécois Francophones aux Élections Provinciales Québécoises

PHILIPPE CHASSÉ & CHRISTOPHE SAVOIE-COTÉ

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ABSTRAIT

ABSTRACT

L’étude tente de démontrer pourquoi les minorités culturelles ayant évolué en français, se range d’avantage du côté du parti Libéral que des autres partis provinciaux. En considérant les comportements électoraux des communautés maghrébines et haïtiennes, l’étude démontre que malgré le fait que certaines minorités culturelles préfèrent l’usage du français, ceci n’est pas un facteur considérable dans l’analyse de leurs tendances politiques provinciales.

La conclusion de la recherche indique entre autre, que l’incertitude socioéconomique, avec divers valeurs nationaliste, associer notamment avec le parti Québécois et la Coalition Avenir Québec, expliquent la réticence des communautés a données leur appuis à ces partis. Compte tenu des convictions profondes de ces partis, l’auteur conclut qu’il serait imprévisible de voir un revirement dans l’intention de vote des minorités culturelles francophone.

The study attempts to demonstrate why french cultural minorities or communities socialized in French favour the Liberal party of Quebec over other provincial parties. Specifically, it considers the electoral behavior of the Maghrebian and Haitian communities to reveal that language does not play a significant role in the electoral behaviour of Neo-Quebeckois voters. Rather, it indicates that socio-economic stability and opposition to nationalist discourse provide stronger influence on the voting behavior of French cultural minorities who have historically favored the liberal party of Quebec. Given the deep nationalist convictions of both other parties (parti Quebecois ans Coalition Avenir Québec), the author suggests that it would be unpredictable to see a reversal in the voting intentions of francophone cultural minorities. This research concludes that given these findings, the Parti Liberal du Quebec will continue to garner the political support of French cultural minorities for the time being.

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onobstant une brève interruption de septembre 2012 à avril 2014, le Parti libéral du Québec a, depuis 2003, continuellement formé le gouvernement québécois, et ce, malgré un faible appui de la population francophone. Comme le suggèrent certaines études, la forte préférence des néo-Québécois pour ce parti semble lui conférer un avantage stratégique considérable en période électorale (Lavoie et Serré 2002, 49). En effet, alors que le Parti libéral du Québec n’avait l’appui que de 25, 8% des Québécois n’appartenant pas à une minorité culturelle en 2012, il obtenait 46, 2% du vote des néo-Québécois (Bilodeau 2013, 238). À l’inverse, ces électeurs démontrent un appui comparativement plus faible que celui des autres Québécois au Parti québécois et à la Coalition Avenir Québec (Bilodeau 2013, 239).

Le chercheur Antoine Bilodeau soulève quatre facteurs prépondérants pouvant expliquer ce comportement électoral : la langue parlée à la maison et au travail, la question nationale, la perception des chefs et, en moindre mesure, la question de l’économie. Ainsi, les électeurs qui ne parlent pas la langue française, ou ne la préférant pas à l’anglais seraient plus fortement prédisposés à appuyer le Parti libéral du Québec (Bilodeau 2013, 249). Bien qu’ils aient tendance à avoir une opinion plus favorable de la communauté politique canadienne, les néo-Québécois qui utilisent la langue française quotidiennement ou ayant fréquenté l’école francophone démontrent une plus grande ouverture et un sentiment d’appartenance plus fort à la communauté politique québécoise.

Toutefois, un écart considérable persiste entre leur attitude électorale – qui s’apparente plus à celle des néo-Québécois anglophones ou allophones – et celle des autres Québécois francophones (Bilodeau 2016, 22). À l’heure actuelle, la littérature, incomplète à cet égard, ne permet pas d’expliquer pourquoi les électeurs issus d’une minorité culturelle, francophones ou socialisés en français, appuient plus fortement le Parti libéral du Québec que les autres Québécois francophones. La présente étude tente ainsi de déterminer la « structure motivationnelle » des électeurs néo-québécois et d’éclaircir pourquoi ceux-ci possèdent – en dépit du fait que maintes études suggèrent que la convergence linguistique soit un facteur clef dans le développement de préférences politiques analogues à la communauté d’accueil – un comportement électoral distinct de celui des autres Québécois francophones. La langue parlée a-t-elle un impact quelconque? Quels sont les principaux facteurs influençant le choix de ces électeurs? Cette étude tente également de réinterpréter la

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nature de l’avantage libéral et de prédire si des changements attitudinaux semblent possibles à court et à moyen terme. Est-ce que l’appui des néo-Québécois au Parti libéral du Québec est pérenne? Est-ce que certains partis, comme Québec solidaire, pourraient, dans un avenir rapproché, s’approprier une frange de cet électorat? Les communautés maghrébine et haïtienne du Québec, considérables démographiquement et toutes deux plus enclines à favoriser l’usage de la langue française, sont les sujets principaux de l’analyse effectuée.

Sachant que l’on prévoit que les citoyens issus des minorités culturelles représenteront plus de 30% de la population montréalaise d’ici 2031 et que, selon le ministère de l’Immigration, de la Diversité et de l’Inclusion du Québec, 58, 6 % des immigrants permanents disaient connaître la langue française, il semble que cette recherche puisse s’avérer pertinente à l’analyse des tendances politiques provinciales futures et à l’étude de l’évolution de l’appui aux différents partis politiques québécois (Bilodeau 2012, 238).

I. MÉTHODOLOGIE Considérant qu’il existe très peu de données statistiques sur le comportement électoral des néo-Québécois, la tenue d’un sondage auprès des minorités culturelles francophones du Québec apparaît comme le moyen le plus susceptible d’affiner la compréhension des facteurs guidant leur comportement électoral ; et, par extension, le plus susceptible d’apporter un éclairage nouveau sur la nature du succès électoral du Parti libéral du Québec auprès de ces communautés.

Cependant, en raison de contraintes au niveau du temps et des ressources disponibles, la collecte de données empiriques par l’intermédiaire d’entrevues avec plusieurs acteurs communautaires, politiques, ainsi qu’avec des spécialistes en la question a finalement été privilégiée. Un des avantages marqués d’une telle approche est qu’elle offre la possibilité de recueillir l’analyse d’acteurs communautaires œuvrant dans différentes sphères du processus de socialisation politique. De par leurs fonctions respectives, les individus interrogés possèdent une compréhension singulière de ce qui préoccupe les néo-Québécois en période électorale. Certains acteurs (ex. membres d’associations communautaires spécifiques ou locales) risquent d’être particulièrement au fait des dimensions microsociologiques expliquant l’attitude électorale des néo-Québécois, tandis

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que d’autres acteurs (ex. chercheurs, acteurs politiques, ou acteurs au sein de grands réseaux communautaires) sont quant à eux susceptibles d’en avoir une interprétation plus macrosociologique. En revanche, il est évident qu’un acteur politique, par exemple, est sensible à la nature des préoccupations individuelles tout comme à la façon dont elles se manifestent sur le plan communautaire – témoignant ainsi de la nature interactive de ces deux dimensions qui ne sauraient être complètement dissociables. La possibilité de sonder parallèlement des acteurs engagés au sein de grands ensembles organisés et d’autres possédants plutôt un véritable rapport de proximité avec l’individu apparaît donc comme un avantage net à l’approche préconisée.

Suite à la recension des écrits portant sur le comportement électoral des néo-Québécois ainsi que sur la nature du lien entre convergence linguistique et convergence idéologique, des questionnaires ont été conçus sur mesure afin de tenir compte de la fonction occupée par chacun des acteurs interrogés. Au total, six entrevues différentes ont été réalisées. Parmi les acteurs interrogés, un est catégorisé en tant qu’acteur communautaire, soit Noredine Mohamed Mimoun. Deux appartiennent davantage à la catégorie des acteurs politiques, soit Sarah Veilleux-Doyon et Amir Khadir. Nour Zirat et Yves-Joseph Rosalbert, de par la nature de leurs engagements, peuvent être qualifiés à la fois à titre d’acteurs politiques et d’acteurs communautaires. Finalement, Antoine Bilodeau, spécialiste des questions d’intégration politique et culturelle des immigrants au sein des démocraties occidentales et professeur à l’Université Concordia, a également participé à l’étude. Il est à noter que ces catégorisations, et particulièrement en ce qui a trait aux acteurs politiques et communautaires, ne sont pas mutuellement exclusives, mais plutôt destinées à mettre en relief la nature de leur relation avec l’électorat néo-québécois. Tous les répondants sont francophones et/ou utilisent couramment le français dans le cadre de leurs engagements communautaires ou politiques.

Parmi les questions présentées aux différents acteurs, certaines portaient sur les enjeux politiques et préoccupations susceptibles de structurer le vote des néo-Québécois, d’autres sur leurs impressions quant aux alternatives politiques au Parti libéral du Québec, ou encore sur l’existence d’attitudes électorales distinctes parmi les différentes communautés étudiées (maghrébine et haïtienne). Or, tel que mentionné précédemment, chaque questionnaire a été élaboré séparément afin de considérer la fonction occupée par le répondant et

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ainsi optimiser les résultats obtenus. Il est finalement également à noter que ces entrevues furent suivies d’un échange informel avec le répondant afin d’obtenir certains détails et/ou précisions. Chacun de ces échanges a été enregistré afin de faciliter le traitement des informations et des analyses offertes par les répondants.

II. BIOGRAPHIES DES ACTEURS CONSULTÉS AMIR KHADIR Né en Iran, Amir Khadir a immigré au Québec en 1971 à l’âge de dix ans. Il a été le porte-parole, conjointement avec Françoise David, du parti progressiste et souverainiste provincial Québec solidaire de 2006 à 2012. En 2008, il a été le premier candidat de sa formation politique à être élu en remportant les élections dans la circonscription électorale montréalaise de Mercier – circonscription qu’il représente toujours à l’heure actuelle. Il est détenteur d’une maîtrise en physique de l’Université McGill et d’un doctorat en médecine de l’Université Laval. Il est l’un des fondateurs du Centre communautaire iranien de Montréal, a été président de SUCO, un organisme québécois promouvant la solidarité des peuples dans le développement durable en Amérique du Sud et a participé à de nombreuses missions humanitaires d’importance à Cuba, au Nicaragua, au Zimbabwe, en Inde, en Afghanistan et en Irak. Amir Khadir est également l’un des cosignataires du texte prônant la redistribution de la richesse Manifeste pour un Québec solidaire publié en 2005.

ANTOINE BILODEAU Détenteur d’un doctorat de l’Université de Toronto, Antoine Bilodeau est, à l’heure actuelle, professeur agrégé au Département de science politique de l’Université Concordia. Ses recherches se concentrent sur l’intégration politique et culturelle des immigrants au Canada ainsi que dans les démocraties occidentales. Il étudie également l’attitude citoyenne face à l’immigration et la diversité culturelle. Il codirige l’initiative interuniversitaire Provincial Diversity Project et est membre des centres pour l’étude de la citoyenneté démocratique et pour l’évaluation des politiques d’immigration. Il siège également au sein du Canadian Network for research on Terrorism, Security and Society.

Auteur de nombreux ouvrages sur l’attitude électorale des immigrants et des

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néo-Québécois, il a remporté, en 2010, le prix McMenemy décerné au meilleur article publié dans la Revue canadienne de science politique et, en 2016, le prix de la meilleure recherche de l’Université Concordia.

NOREDINE MOHAMED MIMOUN Noredine Mohamed Mimoun est diplômé en sociologie de l’Université Paris VIII Vincennes – Saint-Denis. Il est d’origine algérienne et a immigré au Québec en 2008. Actuellement, il agit à titre d’agent à la mobilisation et au développement pour le Forum jeunesse de Saint-Michel, un organisme à but non lucratif favorisant l’implication et la participation citoyenne des jeunes. Son rôle le mène notamment à aider de jeunes citoyens à prendre part au marché du travail et à la société québécoise. Il s’implique activement dans la revitalisation du quartier commercial du petit Maghreb de Montréal. Au Collège de Maisonneuve, il est responsable de la prévention de la radicalisation auprès des jeunes.

NOUR ZIRAT Née au Maroc, Nour Zirat a immigré au Québec en 2008 à l’âge de neuf ans. À l’heure actuelle, elle copréside le club libéral provincial du Collège Jean-deBrébeuf, est la vice-présidente du conseil d’administration du Forum jeunesse de Saint-Michel, siège sur le conseil d’administration du Forum jeunesse de l’île de Montréal et est la porte-parole de l’association Fontaine marocaine pour Montréal. Elle collabore fréquemment avec le média multiplateforme marocain montréalais M Télé. Elle a lancé, pour faire suite aux attentats terroristes d’Ottawa de 2014, l’initiative Not in my Name Canada. Elle a, par ailleurs, agi à titre d’intervenante sur le sujet de la radicalisation pour les chaînes télévisées BBC et Radio-Canada. En 2015, elle a été nommée bénévole jeune de l’année par la ville de Montréal.

SARAH VEILLEUX-DOYON Détentrice d’un baccalauréat en science politique de l’Université de Montréal et d’un diplôme d’études supérieures en environnement, santé et gestion des catastrophes, Sarah Veilleux-Doyon est la directrice du bureau de circonscription du député de Viau et ministre du Développement durable, de l’Environnement et de la Lutte aux changements climatiques du Québec, David Heurtel.

Au cours de sa carrière, elle a également été adjointe aux attachés politiques

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d’Emmanuel Dubourg, adjointe administrative pour la vice-première ministre du Québec, Lise Thériault et permanente au bureau de la circonscription fédérale Verchères – Les Patriotes alors représentée par Sana Hassainia. Elle a milité activement pour la Commission-Jeunesse du Parti libéral du Québec.

YVES-JOSEPH ROSALBERT Né en Haïti, Yves-Joseph Rosalbert a immigré au Québec en 1990 dès un très jeune âge. Il préside, en ce moment, le club fédéraliste de l’Université du Québec à Montréal et est le représentant régional du nord de Montréal pour la Commission-Jeunesse du Parti libéral du Québec. Il a été le responsable des communications du candidat libéral Emmanuel Dubourg dans la circonscription de Viau lors des élections provinciales de 2008. Très impliqué au sein de sa communauté, il a notamment agi à titre de conférencier pour la prévention de l’alcool et des drogues et comme entraîneur de football américain auprès des jeunes dans le quartier de Montréal-Nord. De plus, il a été bénévole dans la distribution de denrée pour les personnes sans domicile fixe de Montréal.

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II. ANALYSE DES DONNÉES RECUEILLIES À la lumière des données recueillies, il semble que la convergence linguistique ne soit pas forcément garante du processus de socialisation politique présupposé. En effet, d’autres variables, telles que la recherche de stabilité socio-économique – ou l’aversion pour le risque et l’incertitude – tout comme l’attraction exercée par le modèle identitaire canadien par rapport à celui de la communauté québécoise, jouent un rôle déterminant sur la « structure motivationnelle » des électeurs néo-québécois francophones. Tous les acteurs consultés ont également mentionné que la position des partis politiques québécois sur la question nationale était l’un des principaux éléments structurant le vote des électeurs issus des communautés maghrébine et haïtienne du Québec.

III. LA STABILITÉ ÉCONOMIQUE ET L’ACCÈS À L’EMPLOI Comme le mentionne Nour Zirat, la population maghrébine du Québec, bien qu’elle détienne un niveau de scolarité plus élevé que la moyenne québécoise, souffre d’un taux de chômage élevé et doit, fréquemment, opter pour des emplois moins bien rémunérés ou incohérents avec les diplômes obtenus par ses membres. En effet, l’équivalence des formations et de la diplomation n’est pas systématiquement reconnue par tous les ordres professionnels québécois, restreignant ainsi les possibilités d’emplois offertes à certains immigrants.

Sarah Veilleux-Doyon, qui travaille quotidiennement avec des néo-Québécois d’origine maghrébine dans la circonscription provinciale de Viau, soulève que cette situation se veut un véritable « choc » affectant profondément leur moral.

Elle ajoute que cette problématique est le sujet d’une forte préoccupation au sein de la communauté maghrébine ; problématique qu’elle note également rencontrée par la communauté haïtienne de la circonscription. Confirmé par tous les acteurs consultés, le chômage, tant au sein de la communauté maghrébine que de la communauté haïtienne, est l’un des enjeux les plus saillants pour les néo-Québécois francophones. Il est toutefois intéressant d’analyser comment cette situation négative peut se traduire en un taux d’appui plus élevé au Parti libéral du Québec.

Une piste de réflexion possible s’appuie sur les causes identifiées com-

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me étant à la source du chômage affligeant les néo-Québécois francophones.

L’impact de la première cause, soit la non-reconnaissance de certains diplômes, semble simple à analyser : un parti politique abordant ce thème dans sa plateforme électorale, ou de manière plus fréquente dans les discours prononcés par son chef et ses candidats, risque d’établir un lien plus fort avec les électeurs néo-québécois, voire d’y gagner leur vote. Toutefois, comme le démontre le document Un Québec inclusif riche de sa diversité : favoriser l’intégration des personnes immigrantes rédigé et distribué par Québec solidaire, la reconnaissance de la diplomation étrangère n’est pas un enjeu uniquement défendu par les libéraux (2014, 2). Il semble, cependant, que le Parti libéral du Québec réussisse à mieux « cadrer » cet enjeu que ses compétiteurs en se distinguant comme plus apte à résoudre la situation qu’eux. Noredine Mohamed Mimoun souligne que les néo-Québécois ne perçoivent pas, en général, le Parti québécois et la Coalition Avenir Québec comme étant des partis politiques pouvant potentiellement réduire le taux de chômage au sein des communautés maghrébine et haïtienne, et ce, principalement parce qu’elles estiment que les enjeux qui touchent les minorités culturelles ne sont pas la priorité de ces partis. Selon lui, l’électorat néo-québécois francophone note l’attention que porte Québec solidaire à la question du chômage, mais reste moins enclin à percevoir ce parti politique comme étant une alternative viable, simplement, car les sondages actuels ne permettent pas d’anticiper une opposition officielle ou un gouvernement formé par Québec solidaire.

Certains acteurs rencontrés ont soulevé la discrimination systémique comme une deuxième cause pouvant expliquer le taux de chômage plus élevé dont souffrent les communautés maghrébine et haïtienne du Québec. À cet égard, une étude, conduite par le sociologue Paul Eid de l’Université du Québec à Montréal, démontre que « les noms comme Tremblay ou Bolduc ont 60 % plus de chances d’être invités à un entretien d’embauche qu’une Traoré ou un Ben Saïd» (Paul Eid 2012). Selon Noredine Mohamed Mimoun, seuls le Parti libéral du Québec et Québec solidaire semblent, aux yeux des néo-Québécois maghrébins et haïtiens, disposés à s’attaquer à la discrimination systémique. Il ajoute que depuis le débat sur le projet de « Charte des valeurs québécoises » proposé par le gouvernement péquiste de Pauline Marois en 2013, la plupart des néo-Québécois, principalement ceux de confession musulmane, ne considèrent plus le Parti québécois comme un parti politique à la défense de leurs

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intérêts. À son avis, les diverses tentatives du Parti québécois de présenter des candidats issus des minorités culturelles n’auraient pas eu l’effet escompté ni réussi à « recadrer » l’enjeu de la discrimination systémique en faveur de ce dernier. Comme cela est le cas pour la reconnaissance des diplômes, il semble que le Parti libéral du Québec soit davantage perçu comme étant le parti compétent pour résoudre ce problème en raison de sa capacité à former le gouvernement. Conséquemment, son appui est généralement favorisé par les membres des minorités culturelles francophones au détriment d’un possible vote pour Québec solidaire.

IV. L’AVERSION AU RISQUE Mentionnée par l’ensemble des acteurs consultés, l’aversion pour le risque et l’incertitude semble également être un facteur important dans la « structure motivationnelle » des communautés néo-québécoises francophones. À ce sujet, Yves-Joseph Rosalbert mentionne que les immigrants de première génération ont, dans de nombreux cas, fait un sacrifice financier énorme en choisissant de quitter leur pays d’origine. Ce choix serait souvent fait, selon lui, dans l’optique d’offrir un avenir plus prometteur et stable à leurs enfants. Il ajoute que certains optent pour le Québec, car ils y entrevoient de meilleures carrières et la possibilité de vivre « le rêve américain. » Ainsi, selon lui, beaucoup de néo-Québécois n’appuient pas le Parti québécois et Québec solidaire, car ces partis politiques font la promotion de l’indépendance du Québec : projet dont les conséquences économiques sont difficilement estimables. Dans cet ordre d’idée, Antoine Bilodeau note que la souveraineté n’est pas qu’une question identitaire, surtout pour ceux s’y opposant. Même s’ils sont francophones, les membres des communautés maghrébine et haïtienne perçoivent principalement l’indépendance du Québec comme un facteur d’incertitude ayant, en quelque sorte, le potentiel de faire « dérailler les raisons pour lesquelles [ils sont] venus [au Québec]. » La socialisation en français ne semble donc qu’avoir un impact très léger, voire minime sur l’opinion des néo-Québécois sur la question nationale et est éclipsée par la peur de toute instabilité, exacerbée par la précarité et le taux de chômage élevé qu’éprouvent déjà les communautés maghrébine et haïtienne du Québec. Deux formations politiques québécoises pourraient, à l’heure actuelle, être avantagées par leur discours en faveur du

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fédéralisme canadien et de la stabilité constitutionnelle et économique : le Parti libéral du Québec et la Coalition Avenir Québec. Antoine Bilodeau estime toutefois que le parti de François Legault ne réussit pas à s’approprier le vote des communautés culturelles, principalement en raison de son discours et de ses positions identitaires nationalistes.

V. LA QUESTION NATIONALE ET L’INTÉGRATION CULTURELLE Tous les intervenants rencontrés indiquent qu’il serait peu probable que la souveraineté et les partis politiques en faisant la promotion soient plus populaires auprès des électeurs néo-québécois même en faisant abstention de l’incertitude entourant la question nationale. En effet, ils mentionnent tous, incluant Amir Khadir, que le projet d’un Québec indépendant ne réussit pas à rejoindre les membres des communautés culturelles, et ce, même si ces dernières favorisent le français à l’anglais. Noredine Mohamed Mimoun note, à cet égard, que la définition du « nous » québécois promue principalement par le Parti québécois, n’est pas inclusive et dissuade de nombreux électeurs néo-Québécois à se sentir inclus au sein du mouvement indépendantiste. Selon Nour Zirat, cette impression provient de l’objectif de protection culturelle mis de l’avant par le Parti québécois. Hermétique, le concept de la culture québécoise tend, à son avis, à exclure de nombreux citoyens, principalement ceux issus de l’immigration.

Le projet de l’indépendance, tel qu’il s’articule présentement, semble inhiber certaines conséquences supposées d’un processus de socialisation en français.

Plusieurs recherches associées à l’école de pensée de Columbia mettent en relief le rôle que jouent les processus d’influence interpersonnelle sur la diffusion de l’information politique, ainsi que sur le développement de préférences politiques similaires à celles du groupe d’appartenance. Toutefois, bien que, comme le mentionnent Lavoie et Serré dans leur étude sur le vote des minorités culturelles, la convergence linguistique puisse être garante de convergence idéologique, Antoine Bilodeau précise qu’une condition fondamentale pour observer un tel phénomène réside en la capacité de l’électeur néo-québécois à s’identifier à la communauté québécoise et à se sentir accepté par elle (Nathalie Lavoie et Pierre Serré 1995-1996, 49). Il ajoute que même si parmi toutes les provinces canadiennes, le Québec est celle où la population se déclare la plus ouverte à l’immigration, c’est paradoxalement au sein de cette même province

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que les immigrants se sentent le moins acceptés. « On constate qu’il y a au Québec un déficit important au niveau du sentiment d’acceptation, » déclare Bilodeau.

Pour sa part, Amir Khadir croit que l’interprétation du mouvement souverainiste partagée par l’ensemble de la population se fonde trop sur la définition de l’indépendantisme et de la société québécoise véhiculée par le Parti québécois. Par exemple, il cite le discours post-référendaire de Jacques Parizeau, qui a, à son avis, marqué l’imaginaire collectif de tous les Québécois.

Il soulève que Québec solidaire, de par sa position en faveur de la souveraineté, est, à tort, associé au programme du Parti québécois, ce qui représente un défi important lorsque vient le moment de tisser des liens avec les communautés maghrébine et haïtienne en période électorale. Il ajoute que cette association surplombe et masque certaines pratiques de Québec solidaire – comme celle d’avoir un conseil exécutif sur lequel siègent de nombreux néo-Québécois – et des mesures promues par le parti pouvant bénéficier aux communautés culturelles, tel le revenu minimum garanti, la tenue d’une commission sur la discrimination systémique, ou encore une politique claire de reconnaissance des diplômes étrangers.

Le modèle de gestion de la diversité culturelle mis de l’avant par le gouvernement fédéral du Canada, le multiculturalisme, aurait-il également une influence sur la « structure motivationnelle » favorisant généralement le fédéralisme et le Parti libéral du Québec des néo-Québécois francophones? Il semble, selon les données recueillies, que ce modèle exerce en effet une attraction relativement supérieure à celui du Québec, et ce, pour plusieurs raisons.

D’abord, comme la majorité des acteurs l’admettent, le modèle identitaire canadien, fondé sur le multiculturalisme, est, de par sa nature inclusive et tolérante, susceptible de rallier les néo-Québécois. En effet, ces derniers se voient alternativement proposer un modèle identitaire québécois articulé autour du concept d’interculturalisme, lequel repose sur une définition vague et abstraite de ce qu’est l’identité québécoise. Tel que souligné par Antoine Bilodeau, il demeure un fond d’insécurité identitaire et linguistique au Québec. Alors que le caractère indéfini du modèle identitaire québécois pourrait ouvrir la porte à une redéfinition inclusive de l’identité québécoise, remarque-t-il, il semble plutôt que l’insécurité identitaire des Québécois laisse parfois transparaître une conception de l’identité hermétique aux nouveaux arrivants. C’est en effet ce que

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Noredine Mohamed Mimoun soulève : le manque d’ouverture et de flexibilité du modèle identitaire québécois, du moins tel qu’il est médiatisé, en amènerait donc plusieurs à embrasser le multiculturalisme plutôt qu’un modèle identitaire où leur place n’est pas garantie.

Amir Khadir met également en relief qu’une minorité des immigrants, à leur arrivée au Québec, sont véritablement conscients de la dynamique de polarisation identitaire propre à la réalité québécoise. Selon lui, puisqu’une grande part des immigrants perçoivent le Québec comme n’étant essentiellement pas distinct du Canada, le processus de reconstruction identitaire de ces immigrants a donc généralement lieu en faveur du Canada. D’ailleurs, Amir Khadir et Antoine Bilodeau mentionnent tous deux que plusieurs moments à forte connotation symbolique sont souvent reliés au gouvernement fédéral, notamment la cérémonie d’assermentation à la citoyenneté canadienne. Il semble ainsi possible que cela renforce, chez les nouveaux arrivants, le sentiment de devenir citoyen canadien plutôt que Québécois. Amir Khadir rapporte également que la grande majorité des immigrants qui s’identifient comme indépendantistes sont bien intégrés culturellement, et/ou professionnellement et/ou économiquement. Cela corrobore l’hypothèse avancée plus haut en ce qui a trait à la propension des néo-Québécois en situation précaire à se détourner du projet indépendantiste pour plutôt favoriser la stabilité associée au statu quo.

VI. ATTACHEMENT AU PARTI LIBÉRAL DU QUÉBEC Plusieurs acteurs rencontrés mentionnent la relation avérée entre les communautés culturelles francophones et le Parti libéral du Québec. Nour Zirat et Yves-Joseph Rosalbert, tous deux impliqués au sein de la Commission-Jeunesse du Parti libéral, soulignent que c’est principalement parce que ce parti les a approchés, qu’ils ont, à la base, décidé de s’impliquer en politique. Bien qu’il soit difficile de généraliser leur perception à l’ensemble des néo-Québécois francophones, ces deux acteurs précisent qu’ils sentent que leur avis et leur présence sont plus valorisés au sein du Parti libéral du Québec que dans les autres formations politiques. Yves-Joseph Rosalbert mentionne, par ailleurs, que l’élection d’Emmanuel Dubourg, candidat d’origine haïtienne pour le Parti libéral du Québec dans la circonscription de Viau, a créé un lien fort et durable entre les libéraux et la communauté haïtienne. Bien qu’elle ne voit pas de cau-

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salité directe et indéniable entre l’appui des communautés néo-québécoises au Parti libéral du Québec et l’existence d’une commission permanente pour les minorités culturelles au sein de ce parti, Sarah Veilleux-Doyon estime que cette instance envoie un message fort d’ouverture et d’inclusion aux électeurs. Elle précise également que les néo-Québécois apprécient, en général, la plus grande ouverture dont font preuve les libéraux face à l’augmentation du nombre de nouveaux arrivants admis par année en sol québécois.

Finalement, la proximité historique et actuelle qu’entretient le Parti libéral du Québec avec les communautés maghrébine et haïtienne semble, selon Antoine Bilodeau, pouvoir expliquer partiellement la pérennité de l’avantage libéral. Selon lui, cet attachement est, en partie, le produit d’une socialisation effectuée au sein d’une communauté s’identifiant comme étant libérale et qui se transmet ensuite de génération en génération, comme le stipule les travaux de l’école de Columbia. La deuxième génération, ou les nouveaux arrivants, seraient ainsi plus enclins à voter comme la première génération et l’ensemble de la communauté.

VII. CONCLUSION En conclusion, cette étude démontre que la maîtrise de la langue française n’est qu’un facteur négligeable dans la « structure motivationnelle » des électeurs néo-québécois. La recherche de stabilité socio-économique, l’aversion pour le risque, le rejet du souverainisme et l’attachement des communautés maghrébine et haïtienne pour le Parti libéral du Québec semblent, ainsi, être les principaux facteurs expliquant le comportement électoral des minorités culturelles francophones qui favorise les libéraux provinciaux.

Ce constat laisse difficilement présager un changement d’allégeance politique, à court ou à moyen terme, chez les électeurs néo-québécois favorisant le français à l’anglais. Il semble très peu probable que le Parti québécois ou que la Coalition Avenir Québec, deux partis politiques perçus comme étant peu inclusifs et ayant de forts discours identitaires, réussissent à bonifier leur appui auprès des minorités culturelles. Le défi s’avère énorme pour Québec solidaire. À la lumière des données recueillies, il semble que le parti doive, à la fois, accroître son appui général au sein de la population québécoise afin de se démarquer à titre de formation pouvant former le gouvernement, ainsi que

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redéfinir la perception actuellement négative de la question identitaire québécoise – le souverainisme étant, selon Amir Khadir, indissociable du projet de Québec solidaire.

En ce qui a trait à la création d’une nouvelle formation politique, il semble, comme le corrobore Noredine Mohamed Mimoun, qu’un parti politique provincial fédéraliste, inclusif et plus à gauche sur l’échiquier politique, pourrait obtenir un appui intéressant des communautés culturelles francophones du Québec, à condition qu’il se démontre comme étant une alternative potentielle pour former le gouvernement. C’est ce qui, selon Antoine Bilodeau, reste plus difficile à atteindre. Il mentionne que l’électorat désirant un discours plus ouvert et inclusif reste stable et limité et indique que la tendance actuelle semble plus propice à la création de formations ayant un discours fermé et identitaire.

Tel que le mentionne Bilodeau, il semble que l’insécurité identitaire crée une demande politique ; et les partis, en choisissant d’y répondre, finissent parfois par cultiver cette insécurité. Cette réalité n’est pas spécifique au Québec ; on peut en effet l’observer en Europe alors que la crise des migrants bat son plein. Ainsi, face à l’insécurité identitaire des Québécois qui semble s’accentuer, nourrie notamment par l’attention médiatique accordée à des enjeux comme l’intensification des mouvements migratoires et la question du port du niqab, il est possible de croire que cette insécurité risque d’influencer la nature du jeu politique de manière croissante. D’ailleurs, le Parti québécois, se retrouvant possiblement à une croisée des chemins suite à l’éclatement du vote des francophones, semble avoir déjà choisi son camp (Valérie-Anne Mahéo et Éric Bélanger 2016, 3). En effet, le positionnement identitaire du Parti québécois suggère qu’il a vraisemblablement renoncé à l’électorat néo-québécois en répondant plutôt à l’appel des électeurs plus conservateurs sur le plan identitaire – un électorat qu’il dispute à la Coalition Avenir Québec.

Cette étude ne démontre toutefois pas que l’appui des communautés maghrébine et haïtienne au Parti libéral du Québec est pérenne. En effet, ce parti doit préserver le lien de confiance qui l’unit aux néo-Québécois. S’ils restent au gouvernement, les libéraux doivent améliorer les problèmes de chômage et de discrimination systémique qui affligent les Maghrébins et les Haïtiens, sans quoi, ils pourraient les voir se démobiliser lors de prochaines élections.

Selon Sarah Veilleux-Doyon, l’enjeu de la réglementation d’Uber est également important, principalement pour les néo-Québécois haïtiens. La gestion de ce

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dossier pourrait influencer la mobilisation et l’appui au Parti libéral de toute la communauté haïtienne aux élections de 2018. Elle note, à cet égard, que les libéraux doivent rester à l’écoute et ne prendre, en aucun cas, le vote de la majorité d’une communauté culturelle pour acquis.

Le processus d’intégration n’est pas un phénomène linéaire ; le Québec et la réalité migratoire sont beaucoup plus complexes. Quelles conclusions peut-on en tirer pour le Québec en général ? Prenant acte à la fois de l’important déficit au Québec en ce qui a trait au sentiment d’acceptation chez les néo-Québécois, de l’insécurité identitaire et linguistique de nombreux Québécois, des maigres progrès réalisés au niveau de l’accès à l’emploi pour les minorités culturelles, ainsi que de la position nébuleuse, voire vacillante du Québec quant au modèle identitaire privilégié, on peut croire que la présente capacité du Québec – tous partis confondus – à composer avec la complexité du processus d’intégration s’avère discutable. La persistance d’un « nous » au sein duquel les néo-Québécois ne se sentent pas inclus représente un enjeu prépondérant auquel le Québec doit s’attarder promptement. Par conséquent, cette étude souligne non seulement qu’un modèle d’intégration strictement fondé sur la convergence linguistique possède des limites, mais illustre également que le Québec doit remettre en question son modèle identitaire.

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BIBLIOGRAPHIE Bilodeau, Antoine. « L’avantage libéral : le vote des minorités visibles à l’élection québécoise de 2012. » Dans Les Québécois aux urnes : les partis, les médias et les citoyens en campagne, 237-250. Montréal : Les Presses de l’Université de Montréal, 2013.

Bilodeau, Antoine. « Usage du français et préférences politiques des néo-Québécois. » Revue canadienne de science politique, vol. 49, n° 1 (2016) : p.

1-22. Consulté le 28 novembre 2016. DOI : 10.1017/S0008423916000160 Eid, Paul. « Les inégalités “ethnoraciales ” dans l’accès à l’emploi à Montréal : le poids de la discrimination. » Recherches sociographiques, vol. 53, n° 2 (2012) : 415450, consulté le 28 novembre 2016. DOI : 10.7202/1012407ar Lavoie, Nathalie et Pierre Serré. « Du vote bloc au vote social : le cas des citoyens issus de l’immigration de Montréal, 1995-1996. » Revue canadienne de science politique vol. 35, n° 1 (2002) : 49-74. Consulté le 23 octobre 2016. DOI : 10.1017/ S0008423902778177.

Mahéo, Valérie-Anne et Éric Bélanger. « Is the Parti Québécois Bound to Disappear? A Study of the Generational Dynamics of Electoral Behaviour in Contemporary Quebec. » Document de travail préparé pour la conférence « The State of Democratic Citizenship in Canada » du Centre for the Study of Democratic Citizenship, 2016.

Québec solidaire. Un Québec inclusif riche de sa diversité́ : favoriser l’intégration des personnes immigrantes. Beaconsfield : Bibliothèque numérique canadienne, 2014.

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ANNEXE 1 QUESTIONNAIRE TYPE 1) Selon vous, qu’est-ce qui définit les communautés maghrébines et haïtiennes du Québec? Quelles sont les particularités respectives de ces deux communautés?

2) Quels enjeux politiques et préoccupations s’avèrent d’un intérêt prépondérant pour les communautés maghrébines et haïtiennes du Québec?

3) Comment évaluez-vous le rôle et l’influence des acteurs politiques, communautaires et sociaux au sein des communautés maghrébines et haïtiennes du Québec?

4) Selon vous, quelles mesures promues par la plateforme politique du Parti libéral du Québec s’avèrent intéressantes pour les électeurs issus de l’immigration francophone?

5) À votre avis, à quels égards la plateforme du Parti libéral du Québec se démarque-t-elle de celles des partis provinciaux concurrents? Qu’est-ce qui la rend plus intéressante aux yeux des électeurs maghrébins et haïtiens?

6) Le chercheur Antoine Bilodeau mentionne que le facteur linguistique est un déterminant important expliquant l’avantage libéral. Selon vous, pourquoi les communautés maghrébines et haïtiennes, toutes deux favorisant la langue française à l’anglais, appuient fortement le Parti libéral du Québec?

7) Sentez-vous que l’appui des communautés maghrébines et haïtiennes du Québec au Parti libéral est pérenne? Quels sont les principaux défis que le parti devra relever afin de garder l’appui de ces électeurs?

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VI.

WITH LIBERTY FOR JUSTICIARS AND ALL In Defence of Scotland’s Independent, Inquisitorial Judiciary

MITCHELL CLARKE

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ABSTRACT

ABSTRAIT

The judiciary of Scotland represents a unique blend of common law and civil law tradition. Scotland possesses a rare blend of both the judicial independence associated with the common law tradition while retaining the inquisitorial criminal process associated with the civil law tradition.

La justice écossaise représente un mélange unique de la common law et de la tradition du droit civil. L’Écosse possède un mélange rare de l’indépendance judiciaire associée à la tradition de la common law tout en conservant le processus criminel inquisitoire associé à la tradition du droit civil.

This article proceeds in three sections.

First, it examines the development of the unique ‘mixed’ legal tradition of Scotland.

Second, it evaluates the independence of the Scottish judiciary through the case-study of the ‘Scottish Court of the Netherlands’. Third and finally, it presents two contra-factual arguments that prove neither the common law tradition of judicial independence nor the civil law tradition of inquisitorial procedure are compromised when compared to other jurisdictions.

Cet article se déroule en trois sections. Premièrement, il examine le développement de la tradition juridique «mixte», unique en Écosse.

Deuxièmement, il évalue l’indépendance du pouvoir judiciaire écossais par l’étude de cas de la «Cour écossaise des PaysBas». Troisièmement, il présente deux arguments contrafactuels qui prouvent que ni la tradition de common law de l’indépendance judiciaire, ni la tradition de droit civil en matière de procédure inquisitoire ne sont compromises par rapport à d’autres juridictions.

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ithin the United Kingdom, Scotland is an independently-minded nation with its own long tradition of legal excellence. From the days of the Scottish Enlightenment in the late eighteenth-century, this small jurisdiction in north-western Europe has produced something rare and unique: an independent yet inquisitorial judiciary. Nowhere is this judiciary’s influence more felt than in the area of criminal law. Representing a fusion of the common law’s adversarial trial and the civil law’s judicial involvement at each stage of the inquiry, Scotland consistently strikes the right balance. In the wake of full devolution of criminal law-making power to the Scottish Parliament at Holyrood by the Scotland Act 2012, it is high time to expound Scotland’s virtues. It is the contention of this paper that Scotland’s highest criminal and civil court, the High Court of the Justiciary (HCJ), ought to be the model followed by criminal court reformers seeking a balance between the full airing of facts in the inquisitorial process while retaining the unadulterated independence associated with an adversarial judiciary. The merit of Scotland’s highest court shall be proven in three sections: first, through a discussion of the civil law tradition, its terminology, and a look at the development of this tradition in the Scottish context; second, the independence of the Scottish judiciary will be evaluated through the case-study of the ‘Scottish Court in the Netherlands’, an extraordinary example of judicial independence and inquisitorial process in the face of a grave terror attack; and finally, two key contra factual arguments will be presented in order to prove definitively that neither the independence nor the inquisitorial spirit of Scotland’s judiciary are compromised when compared to other jurisdictions. Together, these submissions shall demonstrate the worth of Scotland’s juridical tradition. This small, rocky corner of the British Isles will be revealed as the natural progression of all judiciaries in Europe—inquisitorial procedure blended with judicial independence.

I. TERMINOLOGY AND SCOTLAND’S JUDICIARY In order to understand Scotland’s uniqueness, the discussion begins with the development of the civil law’s inquisitorial approach to criminal trials. As pointed out by John Merryman, “substantive criminal law in Western capitalist civil law countries does not differ greatly from that of common law countries […] there are, however, significant operational differences” (Merryman and

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Pérez-Perdomo 2007, 125). The common law focuses on the adversarial approach to criminal justice, whereby two parties bring their dispute before a judge (and in cases of great import, a jury as well), lay out their respective cases and walk away victorious or defeated. The nuances of adversarial dispute resolution are not relevant here, beyond the important observation that within this adversarial system, the judiciary has a greater propensity for judicial independence.

It is logical at this juncture to briefly define judicial independence. According to Lisa Hilbink, there are two forms of judicial independence: negative, ‘formal’ independence, which “refers to the rules (formal and informal) governing judicial appointments, discipline, tenure, jurisdiction, and budget”, and positive, ‘behavioural’ independence, which relates to the judiciary’s behaviour inside and outside the courtroom, as well as how it interacts with the other branches of government (Hilbink 2012, 588). In this paper, judicial independence will be defined in the positive, ‘behavioural’ sense.

Separation of powers, put broadly, is necessarily bound up in positive judicial independence. If power is not separated into independent branches designed to create laws, execute laws and judge laws, respectively, it is too easy for power to become concentrated in the hands of few, leading to tyranny.

A behaviourally independent judiciary will also have an independent base of power when interacting, and often disagreeing, with the legislative and executive branches of government. This concept is, in no uncertain terms, controversial. It varies from country to country, based on historical experience as well as the dominant legal tradition, whether civil, common, or other. A discussion of Scotland’s separation of powers will be led primarily in Sections II and III. To round out the treatment of the definitions germane to this paper, the nature of the inquisitorial criminal process as embedded within the civil law tradition will be explained. This will allow for the understanding of its desirability. In the civil law ideology, the objective of criminal procedure is the seeking and finding of a situation’s objective truth, in order to assign culpability and moral blameworthiness to the perpetrator of a crime. While this theoretical understanding of criminal justice is simplistic in the extreme, it is central to the ‘folklore’ of the civil law tradition. ‘Folklore’ is the term used by John Merryman to sum up the inductive reasoning and ‘pursuit of objective truth’ that lies at the heart of the civil law tradition. The inquisitorial approach

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to criminal trials, then, is an outgrowth of this search for objective truth. In its simplest form, the inquisitorial criminal process is one in which the judiciary is involved at all stages of a criminal inquiry. Thus, from the moment of a crime being reported, to the assignment of blame for that crime, to the eventual meting out of punishment upon the parties responsible, the judiciary has an important role to play.

Why might this inquisitorial approach be desired over the adversarial approach mentioned above? Quite simply, it allows for the finding of a ‘procedural truth’ (Weigend 2003, 157) shaped by the nature of the events as they occurred. In contrast to the adversarial approach, it does not allow for the twisting of the facts by enterprising lawyers to paint their clients in a positive light while underemphasising key facts proving that client’s guilt. A tragic example of such a miscarriage of justice is to be found in the 1994 California murder trial of O. J. Simpson, who was tried and found not guilty at an adversarial trial despite all evidence to the contrary that he was indeed responsible for two gruesome murders. The motivating factor in this trial’s outcome was the polished rhetoric of the accused’s lawyer, Johnnie Cochran (Kaplan 2004, 269-270). His oft-repeated phrase “If the glove doesn’t fit, you must acquit,” overawed jurors and the public, leading them to a conclusion that was at odds with the ‘objective truth’ of the case’s facts. In the words of John Merryman, “if [the accused] were innocent, he would prefer to be tried by a civil law court, but if he were guilty, he would prefer to be tried by a common law court. This is, in effect, a judgment that [inquisitorial] criminal proceedings in the civil law world are more likely to distinguish accurately between the guilty and the innocent” (Merryman and Pérez-Perdomo 2007, 133). To sum up the discussion of the concepts thus far, a desirable judiciary is one in which judges have positive, behavioural independence—both on and off the bench, and a strong independence when dealing with the other branches of government—while also adhering to the just, inquisitorial procedure in criminal law.

To round out the first section of this paper, the way in which the inquisitorial procedure has been adapted to the particular circumstances of Scotland will be considered. The historical roots of the civil law tradition in Scotland can be traced back to the end of the sixteenth century. At this time, explains John W. Cairns, “Scots lawyers seem to have been generally agreed that civil law was the proper source to be used when native sources […] failed

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to give an answer to a legal problem” (Miller and Zimmermann 1997, 196).

Thus, while the common law as practiced in England was not fully rejected, neither was it fully accepted. Cairns explains: “Scotland’s previous legal customs and practices […] blended with the Anglo-Norman common law [but,] the Celtic heritage was not rejected” (Miller and Zimmerman 1997, 196). Scots law relies upon legal scholarship as sources of law, just as across other parts of the civil law traditions of nations across Continental Europe (White, Wilcock and MacQueen 2013, 155-157). It should be noted that these sources are not as valid as Acts of Parliament or judicial precedents, but they are referred to nevertheless. Thus, the long history of Scotland’s mixed legal tradition, imbued with the values of legal scholarship, gave rise to a peculiar and commendable criminal justice system. The echoes of this set-up still reverberate today, manifested in the set-up of Scotland’s highest criminal court.

The highest criminal court in Scotland is called the High Court of the Justiciary (HCJ). It is the highest trial court in the country and doubles as Scotland’s Court of Criminal Appeal. (This dual role, and its potential problems, will be discussed in Section III of the paper.) At this level, only a small portion of all the crimes committed in Scotland are tried. Specifically, the HCJ is responsible for hearing of cases of murder, rape and high treason. However, in the case of particularly heinous crimes that merit special attention for their gravity, a public prosecutor, known as a procurator fiscal (PF), can elect to try a lesser case in front of the HCJ, instead of the lower-level Sheriff Court.

The highest judge of the High Court is referred to as the Lord Justice-General, while all other member judges are called Lords Commissioners. Members of the highest criminal court are also de jure members of Scotland’s highest civil court, the Court of Session. Thus, a justice appointed to the HCJ will hear both civil and criminal cases during their tenure, both at the first instance, as well as on appeal. It should be noted, however, that justices who hear a case at the first instance are expressly barred from hearing the same case on appeal.

Lords Commissioners are appointed by the Queen on the recommendation of the First Minister of Scotland only after consulting the Lord Justice-General him- or herself (White, Wilcock and MacQueen 2013, 98-102). This required consultation of the highest justice of the HCJ vests immense political independence in the High Court, as will be elaborated in Section II of the paper. At the HCJ level, only solemn proceedings (those involving a jury) can be brought

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forth. Instead of ‘procurators fiscal’, a small cadre of specially trained state prosecutors known as ‘advocates depute’ (ADs) lead the prosecution. Although the High Court of the Justiciary has unlimited sentencing power in theory, it is constrained in nearly all cases by statute.

To finish out Section I of the paper, it is now worthwhile to describe in brief the ‘solemn’ procedure at the High Court level. This will help to understand the genius of this court’s hybrid inquisitorial and adversarial method.

As previously mentioned, the High Court of the Justiciary hears only the gravest criminal cases in Scotland. As such, a lengthy investigation usually prefaces the trial proceedings, as in other inquisitorial jurisdictions. Generally, the regional police force (within one of the six ‘sheriffdoms’) will investigate major crimes like murder. During this process, the Advocate Depute (AD) service, along with the police service, will track down witnesses and add their ‘precognition statements’ to the case file. The criminal file acts much like a dossier, or ‘master case document’, in other civil jurisdictions. It is the sum total of the Crown’s case.

Following the investigation, the information will be taken by an AD before a Lord Commissioner at a proceeding called the ‘preliminary diet’. Here, the accused will be present while the AD will demonstrate the Crown’s intention to file charges. However, much like in France and other civil jurisdictions, the Lord Commissioner is the one who decides whether the indictment shall proceed. If there is insufficient evidence, a charge cannot be filed. If, though, enough evidence is adduced, the Lord Commissioner will grant the indictment. Next, a date is fixed for the ‘plea diet’, at which the accused can plead ‘guilty’ or ‘not guilty’, just as under the adversarial process (Judiciary of Scotland Glossary). If the accused pleads not guilty, a ‘trial diet’ ensues. The trial itself is largely adversarial in nature, though it has key inquisitorial elements.

These inquisitorial elements most importantly include a prohibition of opening statements to the jury and the lack of obligation for the defence to present its own case. The Crown presents its case against the accused, calls witnesses who are examined by both sides’ advocates, and then rests.

At this point, the accused may choose to present no defence, opting instead to re-examine all the Crown’s witnesses. This action is encouraged in Scotland, as a sign that the accused is innocent until proven guilty, and is under no obligation to defend him- or herself with contrived arguments, as would be

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necessary in a purely adversarial courtroom. It reinforces the fact that judge and jury are ultimately in pursuit of the objective truth. In most trials, however, the defence does opt to present its own witnesses in addition to re-examining key Crown witnesses. The trial concludes with the 15-member jury retiring to deliberate. However, there are two major exceptions that make the system less absolute than the adversarial process: first, the jury decides by simple majority vote, not unanimity; and second, there are three potential verdicts: ‘guilty’, ‘not guilty’, and ‘not proven’. This third option, unique to Scots law, results in the acquittal of the accused on grounds of insufficient evidence for conviction, though with the reservations of the jurors that the individual may indeed have committed the crime.

The next section of this paper will further the thesis of this paper by critically analysing the immense judicial independence exhibited by the HCJ. By extension, this will show the power of this court’s example for reformers across the civil and common law worlds.

II. JUDICIAL INDEPENDENCE OF SCOTLAND’S HIGHEST COURT As set up in the Middle Ages, Scotland’s High Court of the Justiciary has changed both in a radical sense by accepting limitations to its sentencing power by the Scottish Parliament, and in a minimal sense by retaining important influence over criminal justice policy in the country. Consider for a moment the implication, stated in Section I, that the Lord Justice-General must be consulted before the elected First Minister of Scotland can confirm a new HCJ appointee. The implication of this requirement for separation of powers in Scotland is that the judiciary is allowed a full-throated say in who will compose its ranks. While the consultation requirement does not allow the Lord Justice-General a veto of the nominee, it is a power unheard of in most civil law jurisdictions. This is true especially in light of this legal tradition’s veneration of the legislator at the expense of the judge, who was often regarded with suspicion, denigrated as the so-called ‘aristocracy of the robe’ (Merryman and Pérez-Perdomo 2007, 16-19).

Nor is the consultation requirement a power familiar to the common law tradition, in which the judiciary is in no way consulted on appointments.

To review, Scotland’s HCJ sits as a court of first instance and its own court of

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appeal (though with different justices hearing the appeal), requires consultation by elected politicians before allowing new appointees to its ranks, and retains theoretically unlimited sentencing power. All of the above are testament to this court’s immense judicial independence. It has carved out an exclusive space under Scotland’s and the United Kingdom’s understanding of separation of powers, while retaining inquisitorial elements in its criminal justice system.

Yet, the question remains: how has the Scottish judiciary, if ever, manifested its latent judicial independence? In other words, has the High Court ever proven it possesses positive judicial independence through its behaviour?

There is no better answer than by way of a brief examination and analysis of the Scottish Court in the Netherlands, an ad hoc sitting of the HCJ outside of Scotland. It was convened to try two Libyan nationals accused of planting a bomb aboard a Pan American Airways jetliner. On December 21, 1988, a nearly full Boeing 747 exploded over south-western Scotland whilst en route to New York City. 259 persons on the aircraft died, whilst eleven residents of Sherwood Crescent in Lockerbie, Scotland also perished (Grant 2004, xvii). It was clear from the beginning that this explosion was deliberate; Scotland was faced with an act of calculated mass murder. The real challenge was to firstly discover the identity of the perpetrators and then secondly somehow bring them to justice, despite their being in another country. The first challenge was solved rapidly, with Western intelligence agencies and air disaster investigatory services identifying that the bomb, planted in a suitcase, had been most likely set by two Libyan nationals. They were Abdelbaset Al Megrahi and Al Amin Fhimah. The second challenge proved to be harder to surmount. After twelve years of agonising negotiation, multiple United Nations Security Council resolutions to impose sanctions on Libya for its unwillingness to extradite the bombers, and diplomatic initiative, an agreement for trial under Scots law was finally created.

In order to induce the Libyan government to surrender its two nationals for trial, the agreement, worked out between the United Kingdom, United States, and Libya, called for the trial to be held in a neutral country. The Netherlands was selected as the optimal host, with a former NATO airbase, Camp Van Zeist, selected as a secure location for the trial proceedings (Grant 2004, xix-xx). It was agreed that the trial would take place in front of a panel consisting of the Lord Justice-General, Lord Sutherland, and two Lords Commission-

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ers, Lords Coulsfield and Maclean, and that it would occur under solemn procedure. However, the agreement did not provide for a jury of the public to be involved. Thus, extraordinarily for Scots law, the solemn procedure proceeded with a panel of three judges only. Many reasons were posited for this lack of jury, including the highly politicised nature of the case, as well as diplomatic sensibilities.

The ‘preliminary diet’ was held on December 8, 1999, some eleven years following the perpetration of the attack. The trial diet began soon thereafter and ran until January 31, 2001, comprising some 38 weeks of testimony, 84 days of evidence and 230 witnesses (Grant 2004, xx-xxi). Upon deliberation, a unanimous not guilty verdict was returned in regards to Fhimah, acquitting him of all wrongdoing. However, with respect to Megrahi, a unanimous guilty verdict was returned. He was duly sentenced to a mandatory term of life imprisonment with a minimum of 20 years before release could be considered. At a subsequent hearing, the sentence to be served was increased to 27 years before release, as per an Act of Scottish Parliament allowing life sentences’ release dates to be set by the HCJ itself (Grant 2004, 225).

The Scottish Court in the Netherlands presents a strong case for the true behavioural independence of Scotland’s highest court. At each stage of the proceeding, from diplomatic negotiation over the venue of the trial, to the preliminary diet, to the rendering of the final verdict, the HCJ asserted itself in the pursuit of an outcome fully representative of its role as guardian of Scots criminal law. The fact that the United Kingdom was willing to extend such leeway to the HCJ, a sub-national court, to leave the country and sit under international protection in Holland is testament to the HCJ’s influence within the British legal order.

Further, the rendering of a verdict of not guilty for one of the accused, at a time of public outrage over the attack shows courage. It is a courage that could only have been exhibited by independent jurists confident in their ability to rule on the case without fear of domestic political repercussions. Finally, the sentencing diet for Megrahi shows independence of thought as well, in that the Lord Justice-General actually increased Megrahi’s sentence from 20 years to 27 years before release could be considered. While life imprisonment for murder is set as the sentence by statute, the number of years required to be served before release were fully left to the HCJ’s discretion.

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In summary, the hybrid Scots solemn procedure, rich with important inquisitorial elements and led by the Scottish Court in the Netherlands, was complemented admirably by the fierce positive judicial independence displayed by Lords Sutherland, Coulsfield and Maclean themselves. These three jurists did not bow to pressure from any outside political influence, including significant pressure applied by the United States government. The pressure came in the form of Federal Bureau of Investigation lawyers, who were present to add American argumentation to the case of the Scottish Advocate Depute team.

It should be noted that the AD team at trial included the Lord Advocate (a member of the Scottish cabinet) himself and did not require the assistance of a foreign government’s counsel. This political influence was pointed out in no uncertain terms in the Köchler Report of 2001, prepared by observers of the proceedings at Camp Zeist from the UN and other groups (Grant 2004, 280).

One final, and very important, note in the Lockerbie bombing case is a development in 2009 that proves definitively the independence of Scotland’s highest court. After confirming that Megrahi, who was remanded to a Scottish prison, had developed terminal prostate cancer, the High Court of the Justiciary granted him leave to return home. He returned to Tripoli, Libya, to live out his final days surrounded by family. Despite this granting of appeal, Mr Megrahi was still required to keep in contact with the East Renfrewshire Council, the authority responsible for his prison leave. In an incredible show of respect for international law and his fair-handed treatment by the HCJ, Mr Megrahi never once failed to stay in contact with the council, even in the midst of the Libyan civil war, until his eventual death in Tripoli on May 20, 2012 (BBC 2012).

III. IN DEFENCE OF THE SCOTS LEGAL GENIUS The task now is to confront the possible shortcomings of the High Court in order to evaluate its effectiveness in the context of competing judicial models that are purely adversarial, such as England, and purely inquisitorial, such as France. Below, two key objections will be presented and considered.

The first key objection that can be raised against the Scottish model is the sheer amount of power, both legal and political, that the HCJ possesses within the criminal justice system of Scotland. Particularly, it would strike fear into the hearts of many civil law justice reformers to hear that the high court could

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hand down any sentence it should choose unless expressly forbidden from doing so by statute. However, these old fears about ‘tyranny of the robe’ would be misplaced, given the elaborate safeguards written into the Scotland Acts 1999 and 2012.

These Acts serve to limit the High Court to a strictly defined role within society. The Acts contain a key provision exists that asserts the primacy of statute as a source of law, and downplays the importance of the HCJ’s prior decisions or legal scholarship. This provision ensures that all sentencing power rests in the hands of duly elected Members of Scottish Parliament (MSPs).

Further, in a move to dilute any undue political power the prosecution service might possess, the First Minister of Scotland in 2007 decided to exclude the Lord Advocate, in charge of this service, from all Cabinet meetings (The Scotsman 2007). Today, there is a clear demarcation of powers between the political executive and legislature on one side, and the apolitical judiciary and state prosecution service on the other.

A second key objection any observer of the High Court might raise is the ability of Lords Commissioners to sit as both a court of first instance and a court of criminal appeal. Such a procedure clearly smacks of an insular unfairness in decision-making, given that there are only a select few justices on the HCJ. It is possible that a justice who heard a case at the first instance might bias the same case’s appeal by speaking privately to the justice responsible for hearing that appeal. But again, such fears are misplaced, due to two key factors of the HCJ’s modus operandi.

First, the HCJ at first instance does not sit in a single location. It is in fact composed of three ‘circuit courts’, which sit at Edinburgh, Glasgow and Aberdeen. Whichever location is closest to the spot where the crime was committed will have its jurists hear the case. Second, the HCJ sitting as the Court of Criminal Appeal is located permanently in Edinburgh. Through a constant shuffling of Lords Commissioners, a powerful precaution is created, which assures that a conviction in Glasgow, say, would be heard by different justices, geographically removed in Edinburgh, on appeal. In the case of a criminal appeal that was heard at the first instance in Edinburgh, where the permanent Court of Criminal Appeal sits, justices are brought in from either Glasgow or Aberdeen to hear the appeal. This geographical separation provides an institutional barrier much like the differing institutional levels between courts of first

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instance and courts of appeal in the United States or Canada, which ensure that the appellate justices have neither formal foreknowledge of the case nor biased influence from the justices of first instance when making their final ruling on the case.

IV. CONCLUSION Throughout this paper’s previous sections, the point has been made repeatedly that Scotland’s judiciary is both inquisitorial and independent. This has been shown through an examination of the levels and powers of Scotland’s judiciary, the trial proceedings in a Scottish ‘solemn’ procedure, and through the case study of the Scottish Court in the Netherlands. It was followed in the above section by defending the HCJ from two oft-repeated claims that it has too much political sway, and that there is major impropriety in the High Court’s ability to sit at the first instance and at appeal.

The HCJ has a feistily independent set of jurists who retain the best of the adversarial world’s emphasis on separation of powers and positive judicial independence, while deciding each case in true inquisitorial fashion through the pursuit of objective truth. Thus, to restate one last time the thesis of this paper, Scotland’s High Court of the Justiciary should be held up to court reformers as a powerful example of what can be achieved when the best of the common and civil law traditions are blended and allowed to flourish.

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WORKS CITED “1995: OJ Simpson Verdict: ‘Not Guilty.’” BBC, October 3, 1995, sec. 3. http:// news.bbc.co.uk/onthisday/hi/dates/stories/october/3/newsid_2486000/2486673. stm.

Carey Miller, David L., and Reinhard Zimmermann, eds. The Civilian Tradition and Scots Law. Aberdeen Quincentenary Essays. Berlin: Duncker & Humblot, 1997.

“Glossary - Help.” Judiciary of Scotland. Accessed April 2, 2016. http://www. scotland-judiciary.org.uk/29/0/Glossary/a#P. Grant, John P. The Lockerbie Trial: A Documentary History. Dobbs Ferry, NY: Oceana Publications, Inc., 2004.

Hilbink, Lisa. “The Origins of Positive Judicial Independence.” World Politics 64, no. 04 (October 2012): 587–621. doi:10.1017/S0043887112000160.

Kaplan, Paul. “Book Review: The O.J. Simpson Trials: Rhetoric, Media, and the Law,” Criminal Justice Review 29, no. 1 (2004).

“Lockerbie Bomber Abdelbaset Al-Megrahi Dies in Tripoli.” BBC News, May 20, 2012. Accessed April 3, 2016. http://www.bbc.com/news/world-africa-18137896.

“Lord Advocate Excluded from New Cabinet.” Scotsman, May 23, 2007. Accessed April 3, 2016. http://www.scotsman.com/news/politics/lord-advocate-excluded-from-new-cabinet-1-748499.

Merryman, John H., and Rogelio Pérez-Perdomo. The Civil Law Tradition.

3rd ed. Stanford, CA: Stanford University Press, 2007.

Weigend, Thomas. “Is the Criminal Process about Truth: A German Perspective.” Harv. JL & Pub. Pol’y 26 (2003): 157-174.

White, Robin M., Ian D. Willock, and Hector L. MacQueen. The Scottish Legal System. 3rd ed. London: Bloomsbury Professional, 2013.

VII.

THE ISSUE OF INEQUALITY Why haven’t Americans taken a strong stance in support of redistributional policies?

NOAH SUTTON

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ABSTRACT

ABSTRAIT

Recent grassroots movements in US politics, such as the Occupy Wall Street movement and Bernie Sanders’ candidacy have brought the issue of income inequality to the forefront of US politics. Income inequality is rising in the United States and little redistributional pressure has been applied to counter this.

This paper questions why low-income Americans haven’t taken a stronger stance in support of redistributional policies. The paper examines two potential explanations. First, American political culture constrains policy choice in a bi-party system in such a way that low-income Americans do not regard redistribution as congruent with their interests. Second, despite the fact that significant numbers of Americans hold such policy preferences, they are not translated into policy due to various barriers in the political system. This paper argues that low-income Americans are interested in redistributional policies but economic barriers to political participation greatly reduce their political voice and diminish the potency of their interests.

Les récents mouvements populaires de la politique américaine, comme le mouvement Occupy Wall Street et la candidature de Bernie Sanders, ont placé la question de l’inégalité des revenus au premier plan de la politique américaine.

L’inégalité des revenus augmente aux États-Unis et peu de pression redistributive a été appliquée pour y remédier. Cet article tente de comprendre pourquoi les Américains à faible revenu n’adoptent pas une position plus ferme en soutien des politiques de redistribution.

L’article examine deux explications possibles. Premièrement, le système bipartite de la culture politique américaine limite les priorités politiques, ce qui pousse les Américains à faible revenu à ne pas considérer la redistribution comme étant conforme avec leurs intérêts.

Deuxièmement, malgré le fait qu’un nombre important d’Américains tiennent de telles préférences politiques, celles-ci ne sont pas traduites en lois en raison de divers obstacles dans le système politique.

Cet article soutient que les Américains à faible revenu sont intéressés par les politiques de redistribution, mais que les barrières économiques à la participation politique réduisent considérablement leur voix politique et diminuent la puissance de leurs intérêts.

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I

nequality in the United States is in many ways a puzzle for observers of US democracy. Lipset, in his attempt to understand America as the “first new nation,” traces its core values of equality and achievement to its revolutionary beginnings. However, these values are contradictory and often in conflict with one another: The value we have attributed to achievement is a corollary to our belief in equality. For people to be equal, they need a chance to become equal. Success, therefore, should be attainable by all, no matter what the accidents of birth, class, or race. Achievement is a function of equality of opportunity. That this emphasis on achievement must lead to new inequalities of status and to the use of corrupt means to secure and maintain high position is the ever recreated and renewed American dilemma (Lipset 1963).

America and more pointedly, Americans aim to strike a balance between the two. They believe that individuals may be deserving of massive riches if hard work has led them to ‘earn’ it (a viewpoint which sustains itself on the idea that those at the bottom have the same potential access to this wealth if only they work hard enough). Hochschild has criticized this viewpoint for the mere fact that it simply isn’t true (Hochschild 1995). In recent years, however, it appears that equality has given up the fight against achievement. My research shows that economic inequality is dramatic and widening in the United States and that its effects are almost conclusively negative. Given the rising inequality today, why haven’t Americans taken a stronger stance in support of redistributional policies?

This paper will examine two potential explanations for the lack of redistributive policies. The first considers that American political culture constrains policy choices in such a way that even low-income Americans do not regard redistribution as congruent with their interests. The second argues that although a significant number of Americans hold such policy preferences, they are not translated into policy due to significant barriers in the political system.

Through my research, I conclude that most of the evidence supports the latter hypothesis. Americans do hold views consistent with redistributional policy but significant political barriers exist so that the interests of upper class Amer-

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icans are greatly overrepresented.

I. IS INEQUALITY RISING? Wealth inequality has become a buzzword in American politics since the Occupy Wall Street protesters took to New York City’s Zuccotti Park in September 2011. Indeed, much evidence supports the conclusion that top-wage earners have benefited more than the bottom earners in the wake of the Great Recession of 2007. Inequality is most often measured using the Gini coefficient, which considers income dispersion across a population on a scale of zero to one. A value of zero is consistent with perfect equality, or a society in which every person receives the exact same income. A value of one represents a society in which one person receives all the income. Given the narrow scope of this paper, little time will be dedicated to defining inequality. Rather, references to “economic” or “income” inequality will refer to income distribution in the United States. Emmanuel Saez measured real income growth from 1993 to 2012 in the wake of the Great Recession that occurred from 2007-2009 (Saez 2006). Saez finds that while wage earners in the top one-percent fell harder than the bottom-99 percent (36.3 percent for top earners compared to 11.6 percent for the bottom earners), only two years later, those top wage earners had recovered quickly enough to capture 95 percent of income gains in this period. Those in the bottom-99 percent stagnated from 2009 to 2010 growing only a meager 0.4 percent. The 95 percent growth capture rate by the top one-percent is the highest reported within Saez’s data. Furthermore, a comprehensive 2014 OECD report asserted that income inequality began to grow in the United States in the late 1970s and early 1980s. Although the Great Recession briefly halted this trend, since 2010, it has continued to rise. Regardless of direct causal linkages, the evidence is clear that the United States has experienced a sustained trend of widening economic inequality in recent years, which can be expected to continue (Cingano 2014).

II. IMPLICATIONS OF INEQUALITY Concerns about inequality are often conflated with notions of distributive justice and fairness, thus, making difficult to answer normative questions

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about inequality without ‘choosing sides.’ Saez considers this by mentioning that although the US economy grew in absolute terms for the period of 2002 to 2007, the one-percent captured almost two-thirds of this income growth, thus potentially explaining “the disconnect between the economic experiences of the public and the solid macroeconomic growth posted by the U.S. economy” (Saez 2006). Bartels touches on the complexity of understanding inequality in Unequal Democracy: What are we to make of these economic trends? For some people, they reflect an era of economic dynamism and expanding opportunity. Others are made uneasy by the sheer magnitude of the gulf between the rich and the poor in contemporary America, even if they cannot quite pinpoint why. [...] One crucial—and highly contentious—question is whether dramatic income gains among the hyper-rich “trickle down” to middle- class and poor people, increasing the size of everyone’s piece of the pie (Bartels 2008).

In this section, I will temporarily disregard the issue of ‘individual shares of the pie,’ and focus on the absolute size of the pie and begin with an examination of three reports: Jonathan Temple’s account of 1999, a 1992 World Bank report and a 2014 OECD report. All three conclude that inequality negatively affects overall economic performance. Temple in his report states that: One of the most active areas of cross-country research has been investigating the consequences of inequality for growth.

Somewhat unusually for the growth literature, studies have tended to concur in finding a negative effect of high inequality on subsequent growth [...] it has become extremely difficult to build a case that inequality is good for growth (Temple 1999).

Temple’s findings represent a strong endorsement of this trend. Similarly, the World Bank report succinctly concurs, “inequality is negatively, and robustly, correlated with growth” (Clarke 1992). Finally, the OECD report concludes, “the impact of inequality on growth turns out to be sizeable [...]

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lowering inequality by 1 Gini point would translate in an increase in cumulative growth of 0.8 percentage points in the following 5 years” (Cingano 2014).

III. HYPOTHESIS ONE CONFLICTS WITHIN THE AMERICAN POLITICAL CULTURE Now we can return to the core question of this essay: why have Americans failed to see policy redress in response to the widening economic inequality? The first hypothesis considers that American political culture, primarily defined by the work of Lipset and Hochschild, manifests itself as an aversion against policies of redistribution. Perhaps low-class Americans act out of line with their economic interests because they, as John Steinbeck said, “we didn’t have any self-admitted proletarians. Everyone was a temporarily embarrassed capitalist” (Steinbeck 1960).

Given that the most obvious policy redress for inequality results in tangible economic redistribution for those in lower economic stratas, it should be assumed that if voting behavior in the United States is significantly consistent with class-interests, redistributive policies would likely be supported.

Thomas Frank, in his 2004 book, What’s the Matter with Kansas? presents a strong argument that low-income voters are increasingly voting against their class interests, specifically in his home state of Kansas. Frank argues that American voters are being distracted by cultural wedge issues, such as gun rights or abortion, that are leading them to “vote against their own economic interests in a vain effort to defend traditional cultural values against radical bi-coastal elites.” (Frank 2004). The popular conception of American voting behavior as being less class-conscious than voting patterns in Europe is widespread. Neither of the political parties in America appeals to class-bases, and decentralized parties and highly federalized politics seem to breed crosscutting cleavages that undermine national class-consciousness. Notably, however, this line of argument has come under attack by Bartels, who used survey data to find contradictory results (Bartels 2008). Bartels refutes Frank’s claims, stating that the white working class has perhaps become even more reliably Democratic, and that moral and religious values show no evidence of trumping economics. Lipset, writing in 1960, provided a strong endorsement of the persistent phenomenon of class voting claiming, “even though many parties renounce the principle

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of class conflict or loyalty, an analysis of their appeals and support suggests that they do represent the interests of different classes.” Given the presence of crosscutting cleavages in the United States, class-voting tendencies have waned based on external factors. Bartels, finds little evidence of class voting from 1952 to 1972, but finds that: From 1976 through 2004, there is a strong and fairly consistent income gradient evident in the presidential voting behavior of white Americans. Averaging over the eight presidential elections of this period, whites in the bottom third of the income distribution cast 51 percent of their votes for Democrats, as compared with 44 percent of middle-income whites and 37 percent of upper-income whites (Bartels 2008).

Of course, crosscutting cleavages cannot be ignored when considering voting behavior in the United States. A clear example is the end of the “Solid South” in 1964 in which poor states realigned to overwhelmingly vote Republican as a response to the Democrats’ attempts to pass the Civil Rights Act of 1964. For the most part, since American voting behavior is still based on economic lines, it appears they would be in favor of redistributionist policies.

Although I have already presented evidence of class-based voting in the United States, an examination of the specific policy preferences of Americans is necessary given the potential for ideological differences. While some may believe that as the pie gets bigger, the portions do as well, others, however, believe that the state needs to continually re-cut the pie to ensure every person gets a fair share. This section will examine specific policy preferences on three issues: raising the minimum wage, increasing taxes on top wage earners, and providing welfare assistance to low-income families. It must be noted that the polling data is often vague, unreliable and easily influenced. Polling should not drive policy and that is not the aim of this section. The aim of this section is only to gain an understanding of the self-identified policy preferences of Americans in order to compare this with the accepted understandings of American political culture.

The available polling data on minimum wage hikes shows strong, consistent support for increasing the minimum wage. A Hart Research Associates

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poll found that “75 percent of Americans support raising the federal minimum wage to $12.50 by 2020” (Stieglitz 2015). Party affiliation is a strong indicator of this stance. 92 percent of Democrats are in favor of a higher minimum wage compared to 53 percent of Republicans. Additionally, strong support exists among whites without a college degree (72 percent in favor). The American Enterprise Institute has compiled public opinion surveys on taxation from 1937 to 2012. On the question of whether upper-income people are paying their fair share in taxes (from 1992 to 2011) at no point did the response that ‘upper-income people pay too little in taxes’ fall below 55 percent. Conversely, the same question and the same response with regard to low-income people never reached above 20 percent in the years surveyed (Bowman 2012). Unfortunately, this document does not track the party affiliation for respondents, but overwhelmingly the polling results show that public opinion believes the wealthy do not pay enough in taxes and that the tax laws actually favor the wealthy (Bowman 2012). Finally, on the issue of public opinion on welfare spending, Shapiro and Young find that although there is surprisingly little data available, “the American public has accepted and even expected an active government role as the last economic resort [...] The public opinion data show that support for social welfare policies in the United States has generally remained solid and stable from the 1970s to the early 1980s” (Shapiro 1989).

Additionally, they find some evidence that welfare support remains strong or perhaps got stronger as a reaction to the social service spending cuts of the Reagan administration (Shapiro 1989).

Examinations of these three policy issues have presented evidence demonstrating that Americans tend to support redistributionist policies (unless divided by partisan lines). While these polls may appear to be antithetical to most understandings of the ‘rugged individualism’ of American political culture, Wilson (echoing Lipset) argues that American political culture stresses autonomy as well as equality. As these can be at times competing ideals, they necessarily come into conflict with each other (Wilson 1997). Hochschild contends that when Americans “view redistribution as an economic question they [...] oppose it. When they view it as a political question, they [appeal to] a principle of equality and sometimes favor it. People who feel torn between two views are unlikely to act forcefully on either; therefore by default, they end up ‘supporting’ the status quo” (Hochschild 1984). American political culture

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clearly has the capacity to accept redistributionist policies and a majority of Americans appear to do so. Thus, the first hypothesis, that American political culture overrides or alters voters’ preferences in such a way that they would not support redistributionist policies, is not supported.

IV. HYPOTHESIS TWO POLITICAL BARRIERS EXIST This section will examine the second hypothesis that the preferences of low-income individuals are often not translated into government policy due to certain political and social causal mechanisms resulting from low socioeconomic status. Gillen’s study on government responsiveness correlated with socio-economic status found that across all income brackets there is a dominant tendency for maintaining the status-quo and that even proposals with 90 percent support do not garner at least a 50 percent chance of passing (Gilens 2005). Of course, he cautions that this status quo bias is not surprising given the structure of the American political system. Importantly, however, he does find a strong correlation between higher income policy preferences and enactment of government policy: We see that the strength of the relationship between preferences and policy outcomes not only increases with each step up the income ladder, but does so at an increasing rate: the difference in the 90/10 ratio in row 6 of table 1 is about half as great between the 10th and 50th income percentiles as it is between the 50th and 90th percentiles (Gilens 2005).

Restated, these findings show that widening economic inequality exacerbates policy responsiveness at an increasing rate. Gilens tested six hypotheses, four of which consider the recorded influence as spurious and two of which assume that well-off Americans are capable of influencing policy (Gilens 2005).

Through this test, Gilens discovered that the link between high-income earnings and government responsiveness appears to be positively correlated with an increased ability to support these special interests through campaign donations. Gilens also noted that with a linear increase of income, voter turnout

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and political volunteering also increase. However, he found a stark difference with regard to campaign donations. Very few people reported having donated to a political campaign below the $50-75K range, but past this, donations become much more frequent and with larger amounts (Gilens 2005). The effect of policy control is so dramatic, according to him, that when low-income constituents’ policy preferences are expressed, it is usually because of a preference shared by high-income constituents. Bartels argues, “economic inequality clearly has pervasive, corrosive effects on political representation and policy making in contemporary America” (Bartels 2008). Although Bartels is largely in line with the conclusion of Gilens, he does inject some optimism into an otherwise dismal situation. Bartels argues that while policy makers may be unresponsive to the specific policy preferences of low-income voters, policy makers’ voting patterns are mostly determined by their partisan ideologies. He suggests that low-income voters can exercise “substantial indirect influence by altering the balance of power between Democrats and Republicans in the making of public policy” (Bartels 2008). Not only have low-income voters remained loyal to the Democratic Party, but they show strong support for redistributive policies and are more numerous in terms of party affiliation than Republicans.

Yet, there still has not been any strong tendency towards economic redistribution. Democrats do win presidential elections, but the party rarely secures electoral mandates in the form of a unified government that would perhaps allow them to pass policies in line with the majority of Americans preferences.

It seems unlikely that campaign contributions alone can sway elections despite evidence of their immense influence, but the answer may simply be that high-income people participate in politics more, which in turn results in more frequent Republican electoral victories and thus less redistributive policies.

The extent to which socio-economic status affects participation is the subject of The Unheavenly Chorus by scholars Brady, Verba, and Schlozman: Those who are well educated are likely to have a stockpile of a variety of other participatory factors: for example, to have the kinds of jobs that inculcate civic skills and generate high incomes; to be politically interested, knowledgeable, and efficacious; and to be connected to the networks through which requests for political activity are mediated. When we embarked on this project, we

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did not anticipate the extent to which we would uncover, under every intellectual rock we excavated, the deeply embedded and durable character of socioeconomic inequalities in political voice (Schlozman et al. 2012).

If we consider political influence highly contingent on material resources, the situation only gets bleaker. There is strong evidence to support that economic inequality greatly diminishes hope for intergenerational social mobility (meaning those born into low socioeconomic status may never gain the material resources to further improve their own situation in the political realm). This phenomenon, termed the Great Gatsby curve, is well researched.

Miles Corak, for example, discusses how education policy in the United States reinforces this trend. Within the US, college graduate income returns are dramatically higher than other countries, 70 percent greater compared to only a 30 percent difference in Canada (Corak 2013). As a result, the US focuses large portions of its education subsidies on college education. Ironically, Corak believes that educational spending focused on the college level actually provides more benefits to the already well to do. This is because low-income families often can’t provide the necessary non-monetary support for college education such that low-income children may never become sufficiently motivated to pursue a college degree. The socio-economic background of a child’s parent appears to be a decisive indicator of that child’s future economic success. An OECD conducted study found that as inequality increases, individuals with low parental educational backgrounds (PEB) have a significantly decreased likelihood to be employed in their lifetime (Cingano 2014). Loury offers a possible explanation for this phenomenon by finding that informal contacts and references from friends or family were the most frequent source of jobs in 1982. She continues to say that “the value of informal contacts for labor market outcomes may differ dramatically across demographic groups,” such that low-income individuals may only have access to similarly low-income jobs with little possibility of career advancement (Loury 2006).

This section argues that there is a clear link between the policy preferences of higher income citizens and the enactment of those policies. This is likely caused by unequal campaign contributions as well as overwhelmingly biased political participation in all forms. Additionally, the research cited here

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indicates that economic inequalities have a tendency to diminish social mobility, creating a vicious cycle in which low socioeconomic status individuals are never able to effectively lobby for their interests due to social immobility caused by their low socio-economic status. This conclusion seems to provide an acceptable explanation for the lack of response to growing inequality in the United States. In the next section, I will briefly consider two alternative explanations to explain the history of weak redistributional policies.

V. ALTERNATIVE EXPLANATIONS Theda Skocpol has questioned why the US has fallen behind in the formation of a strong welfare state in the 19th century when most comparable democracies began to do so (Hochschild and Skocpol 1996). The United States established a social insurance scheme relatively late and has never enacted broad social programs similar to the European welfare states. While Skocpol recognizes that the US “refused to follow other Western nations on the road towards a paternalistic welfare state, in which male bureaucrats would administer regulations and social insurance for the good of breadwinning industrial workers and their dependents,” she believes it is often overlooked that the US indeed passed comprehensive legislation to help mothers and children exclusively. At the same time, similar legislation aimed at male industrial workers was defeated. Skocpol argues that this discrepancy can not be a product of American attitudes delaying the adoption of welfare given that US Civil War benefits for returning soldiers, mother and child protections were adopted fairly easily. Her explanation is that the “decentralized federalism” in the US meant that “social welfare reforms could [only] be enacted [...] through waves of similar legislation across many of the state legislatures” (Hochschild and Skocpol 1996). Patronage democracy allowed the Civil War veteran benefits to be adopted and progressive reformers found it easier to make an argument that labor laws needed to protect ‘future mothers of the race’ due to their special gender status. Due to the decentralized structure of the US government, widespread federated interests (state and local interests that form coalitions to lobby federally), have a strong advantage in policy influence. Capitalists tend to have an easier time accepting their shared interests and could form coalitions more effectively vis-à-vis male industrial workers (Hochschild and Skocpol 1996).

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As a result, industrial workers were never able to form a unified federal front to lobby for welfare protections.

Scholars Alesina, Glaeser, and Sacerdote propose an ethnicity-based explanation for the weak welfare protections in the United States. In their article, “Why Doesn’t The US Have A European-Style Welfare State”, they argue that the US working class was formed by waves of arriving immigrants, which contributed to a failure in workers forming unified class-consciousness.

In this case, “ethnic divisions were felt as strongly as class-based cleavages” (Alesina 2001). Hostile race relations between Whites and African-Americans, who are disproportionately represented among the poor, conditioned whites to equate welfare systems as direct benefits to African-Americans, which they vehemently opposed. The authors point to historical evidence of the use of racist rhetoric to defeat leftist policies, as well as survey data to find “a strong negative relationship between the generosity of the program and the share of the state that is black—the raw correlation is 49 percent.” They finally conclude that, “hostility between the races limits support for welfare. It is clear that racial heterogeneity within the US is one of the most important reasons why the welfare state in America is small” (Alesina 2001).

VI. CONCLUSION This paper has attempted to find answers to the question: why haven’t Americans taken a stronger stance in support of redistributive policies? The paper demonstrated that in many ways, the question did not fit the solution.

Evidence points to the fact that Americans retain a strong interest in redistributive policies and class voting remains strong, and public opinion surveys show strong support for a higher minimum wage, higher taxes for the top income brackets and basic welfare programs. The evidence clearly supports the demand side equation of this question. The issue, therefore, is the supply side. Why hasn’t the US government delivered on such policies? This paper argues that low-income citizens have a diminished political voice (for a multitude of reasons) and their policy preferences are given less weight as a result.

Of course, the issue is not so simplistic. In an attempt to go beyond the limited scope of this paper, I have briefly reiterated two theories on the same subject by other scholars. In terms of the results, some conclusions are clear. Not only are

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the majority of Americans, who want policy redress for widening inequality, unable to exert major influence politically, the same political and economic inequality prevents their social mobility so that they can advocate for their preferences in the political and economic spheres.

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WORKS CITED Alesina, Alberto, Edward L. (Edward Ludwig) Glaeser, and Burce Sacerdote.

“Why Doesn’t the United States Have a European-Style Welfare State?” Brookings Papers on Economic Activity 2001, no. 2 (2001): 187-277.

Bartels, Larry M. Unequal democracy: the political economy of the new gilded age. New York: Russell Sage Foundation, 2008.

Bowman, Karlyn, and Rugg. “Public Opinion on Taxes: 1937 to Today.” AEI Public Opinion Studies, April 2012.

Corak, Miles. “Income Inequality, Equality of Opportunity, and Intergenerational Mobility.” Journal of Economic Perspectives, 27 (2013): 79-102.

Clarke, George R. G. “More evidence on income distribution and growth,” Journal of Development Economics, Elsevier, 47 (1995): 403-427. http://www.sciencedirect.com/science/article/pii/0304-3878(94)00069-O Cingano, Federico. “Trends in Income Inequality and its Impact on Economic Growth” OECD Social, Employment and Migration Working Papers, OECD Publishing 163 (2014). http://EconPapers.repec.org/RePEc:oec:elsaab:163-en.

Frank, Thomas. 2004. What’s the Matter with Kansas?: How Conservatives Won the Heart of America. New York: Henry Holt and Company.

Gilens, Martin. “Inequality and democratic responsiveness.” Public Opinion Quarterly 69, no. 5 (2005): 778-796.

Hochschild, Jennifer L. “What’s Fair? American Beliefs about Distributive Justice.” Political Psychology 5, no. 2 (1984): 315.

Hochschild, Jennifer L. Facing up to the American Dream: Race, Class, and the Soul of the Nation. Princeton, NJ: Princeton University Press, 1995.

Hochschild, Jennifer L., and Theda Skocpol. “Social Policy in the United States: Future Possibilities in Historical Perspective.” Contemporary Sociology 25, no. 1 (1996): 42.

Lipset, Seymour Martin. The First New Nation: The United States in Historical and Comparative Perspective. New York: Basic Books, 1963.

Loury, Linda Datcher. “Informal Contacts and Job Search Among Young Workers.” Department of Economics Tufts University, (2006). https://www.mysciencework.com/publication/show/4c436dfb89ed5a8f3e5b517f864570d0 Piketty, Thomas, and Emmanuel Saez. The evolution of top incomes: a historical and international perspective. No. w11955. National Bureau of Economic Research, (2006). http://www.nber.org/papers/w11955 Schlozman, Kay Lehman, Sidney Verba, and Henry E. Brady. The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy.

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Steinbeck, John. “A Primer on the ‘30s.” Esquire, June 1960.

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Stieglitz, Emma. “New Poll Shows Overwhelming Support for Major Minimum Wage Increase.” National Employment Law Project, January 15, 2015. http:// www.nelp.org/content/uploads/2015/03/PR-Federal-Minimum-Wage-PollJan-2015.pdf.

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VIII.

THE RIGHT TO ASYLUM The Role of the United Nations High Commissioner for Refugees in Ensuring Ecuador’s Compliance with the Refugee Regime

MICHELLE D. MONTILLA

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ABSTRACT

ABSTRAIT

In 2000, Ecuador decided to allow the United Nations refugee agency, mandated to protect refugees’ ability to work in the country, to find sustainable solutions related to the high influx of refugees from its neighboring country, Colombia. The continuing and changing conflict in Colombia had generated millions of internally displaced people and hundreds of thousands seeking safety in other countries in the region, particularly Ecuador and Venezuela.

In applying the spiral-model of human rights change, which is based on a social constructivist theoretical approach, I explore the process of implementation and socialization of international norms into local contexts. The relative success of Ecuador in complying with the right to asylum and the norm of non-refoulement can arguably be explained by sufficient pressure from transnational advocacy networks and international organizations such as UNHCR as well as the changing environment in the country. Nonetheless, persistent challenges remain, namely the conflicting national norms and values of security/protectionism and xenophobia.

En 2000, l’Équateur a décidé de permettre à l’agence des Nations Unies pour les réfugiés, chargée de protéger les réfugiés travaillant dans le pays de trouver des solutions durables concernant le fort afflux de réfugiés du pays voisin, la Colombie. Le conflit continu et changeant en Colombie a engendré des millions de personnes déplacées à l’intérieur du pays et des centaines de milliers qui cherchent la sécurité dans d’autres pays de la région, en particulier en Équateur et au Venezuela. En appliquant le modèle en spirale du changement des droits de l’homme, qui repose sur une approche théorique et constructiviste, j’examine le processus de mise en œuvre et de socialisation des normes internationales dans des contextes locaux. Le succès relatif de l’Équateur dans le respect du droit d’asile et de la norme de non-refoulement s’explique sans doute par une pression suffisante des réseaux transnationaux de défense des intérêts et des organisations internationales telles que le HCR, ainsi que l’évolution de l’environnement dans le pays. Néanmoins, des défis persistants subsistent, à savoir les normes et valeurs nationales conflictuelles de sécurité et du protectionnisme, ainsi que la xénophobie.

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‘’Everyone has the right to seek and to enjoy in other countries asylum from persecution.’’

Universal Declaration of Human Rights, Article 14 (1)

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here have always been refugees. Wars, natural disasters, ethnic upheavals, religious strife and a broad range of other human rights abuses lead people to become refugees. However, it was not until the end of the Second World War, that the international community created an extensive refugee regime as a fundamental part of the broader human rights legal framework. Building on Article 14 of the 1948 Universal Declaration of Human Rights, which recognizes the right of persons to seek asylum from persecution in other countries, several states signed and ratified the 1951 Geneva Convention relating to the Status of Refugees (Refugee Convention). Initially, the textually constrained Refugee Convention only applied to European asylum seekers fleeing persecution from the wars that took place before 1951.

However, the 1967 Protocol expanded the time limits of the Convention by eliminating such geographic limitation and therefore making the Convention a universal one. Though the great majority of states have ratified the Convention, the actual impact that international human rights norms related to refugee law and international agencies mandated to protect refugees can have in these countries is limited due to social factors and the limitations that states themselves put on international agencies. In applying the spiral-model of human rights change, which is based on a social constructivist theoretical approach, I explore the process of implementation and socialization of international norms into local contexts. The aim of this essay is to answer the following research question: how do international agencies help in mitigating the factors that impede state compliance with the refugee regime? I argue that international agencies such as the United Nations High Commissioner for Refugees (hereinafter UNHCR) play a major role in helping to mitigate the conditions that impede states from complying with their legal obligations. Research suggests that these institutions provide states with capacity-building to adopt and help enforce anti-discrimination laws. Moreover, they also allow for a type of moralistic pressuring necessary to ensure that both states and members of society see refugee protection as an obligation. Nonetheless, for these tools to be effective, states need to be willing to comply with the refugee regime and to

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cooperate with such international organizations since these play a major role in the process of institutionalizing “refugee protection’’ as a norm.

Without the domestic capacity to endorse such rights, these agencies and principles are not as useful as they could be in bringing about positive change to the current situations of refugees. Moreover, refugees all around the world face discrimination which represents one of the main challenges faced by countries implementing the refugee regime. This discrimination varies depending on the context and cultural values of the host countries but also on the degree of domestic legislative support for refugees’ rights protection. Through joint-collaboration and the exercising of moralistic pressure, agencies such as UNHCR seek to influence governments in the implementation of non-discriminatory and inclusive laws. UNHCR seeks to pressure governments to adopt such non-discriminatory laws when needed since these represent necessary conditions for the effective adaption of refugees into their new society.

For this purpose, the continuation of processes of argumentation, persuasion, moral consciousness-raising and institutionalization—as explained by the spiral model of human rights change—are crucial for the refugee norm to be fully and continuously implemented.

This essay begins by outlining the basic legal framework from which the right to asylum derives and explores states’ ratification of the most important refugee rights agreements. It proceeds by describing the spiral-model of human rights change developed by Risse, Ropp and Sikkink and briefly discusses the role of UNHCR as the regulatory body in charge of monitoring states’ implementation of the 1951 Refugee Convention. It highlights the importance of this institution in the process of institutionalization of norms. Finally and most importantly, this essay explores the factors that impede state compliance with the refugee regime by analyzing the case of Ecuador and explain how the spiral-model applies to this case and the role UNHCR has played in promoting compliance with the refugee regime. In analyzing the case of Ecuador, this essay will evaluate to what degree the state is complying with the refugee regime, the pressure exercised by agencies on the state to comply with refugees’ rights and outline the persistent challenges in the country relating to compliance.

I. THEORETICAL POINT OF DEPARTURE

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Human rights norms are increasingly gaining importance amongst the family of international norms and are frequently used in official presidential discourses. To appear like complying states with human rights is becoming the norm and states wish to keep up appearances. To obtain a better understanding of when and why states decide to comply with the refugee regime and the role that international institutions play in such a process, the spiral-model of human rights change serves as a detailed explanation of the process. In this section, I begin by discussing the norm of refugees’ rights and the role of the United Nations High Commissioner for Refugees (UNHCR) in promoting state compliance with international refugee law, expressed as the Geneva Convention (The Refugee Convention). I conclude this section by providing a detailed description of the spiral-model and outlining other theories of state compliance.

REFUGEES’ RIGHTS IN INTERNATIONAL LAW AND THE ROLE OF UNHCR IN PROMOTING STATE COMPLIANCE WHAT IS A REFUGEE?

The 1951 Refugee Convention (article 1 (a.2) defines a refugee as an individual who is forced to flee his/her country and is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group. Countries experiencing large-scale displacement as the result of armed conflicts found that the 1951 Convention definition did not go far enough in addressing the protection needs of their populations. As a result, both Article 3 of the Cartagena Declaration and Article 1(2) of the 1969 OAU Convention extend refugee status to an individual who “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country of origin or nationality.” Finally, the United Nations High Commissioner for Refugees (UNHCR) provides protection to internally displaced persons (IDPs) and stateless individuals in addition to 1951 Convention

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refugees (Geneva Convention relating to the Status of Refugees, 1951).

WHAT RIGHTS DO REFUGEES HAVE?

Refugee law and international human rights law are closely intertwined; refugees are fleeing governments that are either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or threat to life or safety arises in the context of an armed conflict, refugee law also intersects with international humanitarian law.

1) NON-REFOULEMENT

A basic principle in refugee law is that of non-refoulement. As per article 33 (1) of the Convention, such a principle implies that states have the obligation not to refoule, or return, a refugee to “the frontiers of territories where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion.”

(Refugee Convention, 1951). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights (Convention against Torture and the American Convention on Human Rights, 1987).

Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a prohibition against refoulement (ECHR 2011, Judgment of 1 January 2011). The principle of non-refoulement prohibits not only the removal of individuals but also the mass expulsion of refugees (Charter on Human and Peoples’ Rights, art. 12(5)., 1981).

2) FREEDOM OF MOVEMENT

At the regional level, the rights to seek asylum and freedom of movement can be found within the text of the same article. See African [Banjul] Charter on Human and Peoples’ Rights, art. 12(1) and (3); American Convention on Human Rights, art. 22. The rights are closely related, since the inability to return to one’s country is the basis of an asylum claim while the ability to

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leave one’s country is a prerequisite for claiming refugee status under the 1951 Convention.

Freedom of movement, however, is also a key right for refugees within their host country (International Covenant on Civil and Political Rights, article 12.,1976). Article 26 of the 1951 Convention provides that States shall afford refugees the right to choose their place of residence within the territory and to move freely within the State. Meanwhile, Article 28 obliges States Parties to issue refugees travel documents permitting them to travel outside the State “unless compelling reasons of national security or public order otherwise require” (Refugee Convention, 1951). Freedom of movement is an especially important issue with regard to protracted refugee situations in countries with limited national resources and/or limited legal frameworks for protecting refugees who nonetheless host large refugee populations. In such countries, refugee warehousing – in which refugees are confined to refugee camps, thereby restricting their access to employment and education – is commonly practiced (U.S. Comm. for Refugees & Immigrants, World Refugee Survey, 2009).

3) RIGHT TO LIBERTY AND SECURITY OF THE PERSON

The right to liberty and security of the person is important in the context of how asylum seekers are treated within the intended country of refuge. The national laws of several countries provide for the detention of asylum seekers at one point or another during the adjudication of their claims. The detention of asylum seekers is a contentious issue because of the conditions found in the detention facilities of several countries. This is particularly an issue in countries such as Greece, a country overwhelmed by the number of asylum-seekers it receives, many of whom use Greece as a port of entry as they try to access other European countries (Feller, Türk and Nicholson, 2014).

4) RIGHT TO FAMILY LIFE

The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the State.” (International Covenant on Civil and Political Rights, 1976). In respect of this right, a number of

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countries provide for the granting of derivative status to dependent relatives.

Thus, where an individual is granted asylum, his or her dependent relatives will also receive protection through him or her (U.S.C; Immigration Rules, 2012.; S.I. (U.K.); National Refugee Proclamation, 2004.; The Refugees Act, No. 13, 2006). However, should that individual’s refugee status be terminated, the status of dependent relatives will also be terminated (National Refugee Proclamation, No. 409, 2004.; The Refugees Act, No. 13, 2006.; Kenya Gazette Supplement No. 11, 2004). Consequently, these domestic laws do not preclude dependent relatives from making their own asylum claims. These rights are directly linked to the legal concept of family reunification which allows refugee and immigrant families to sponsor their families in the aim of reassembling the families that are often broken due to forced migration or immigration. In many instances, because of a lack of resources or to avoid danger, some asylum seekers leave their children or other dependent relatives in the country from which they are fleeing persecution. The right to family life is supposed to facilitate the reunification of families in such instances. The reality is that although such rights exists, many states deny it. Moreover, it is not uncommon that children of refugees, born in the country where the parents demanded asylum, are refused any citizenship and as such, they are considered stateless individuals.

In many cases, such restriction prevents them from getting education and basic access to health services.

5) OTHER RIGHTS

The 1951 Convention also protects other refugees’ rights: rights to education, access to justice, employment and other fundamental freedoms and privileges similarly enshrined in international and regional human rights treaties. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the same treatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be afforded the same treatment as foreign nationals. More specifically, art. 16 dictates that refugees are to be granted equal access to the courts, and as per art. 17, refugees are to be afforded the same access to wage-earning employment as foreign nationals. Additionally, art. 13 stipulates that refugees are to be afforded the same rights to moveable and immoveable property as foreign nationals. (Refugee

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Convention, 1951). Despite these rights being protected in the 1951 Convention and under several human rights treaties, refugees in various countries do not enjoy full or equal legal protection of fundamental privileges. Ethiopia, for example, made reservations to Articles 22 (public education) and Article 17, treating these articles as recommendations rather than obligations (U.S. Comm. for Refugees & Immigrants, World Refugee Survey, 2009).

ENFORCEMENT: CLAIMING ASYLUM

The adjudication of asylum claims is reserved to individual States. Although some made an effort to adopt a uniform asylum system, international and regional bodies lack the jurisdiction to adjudicate individual asylum claims.

International and regional bodies do, however, adjudicate claims asserting violations of the human rights of refugees and asylum seekers. Despite differences across, and sometimes within, States, there are a number of commonalities between the asylum procedures of States who have national frameworks for granting refugee status. The following is a general and simplified explanation of these procedures (Feller, Türk and Nicholson, 2014).

THE UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES (UNHCR)

The United Nations High Commissioner for Refugees (UNHCR) is the UN agency mandated to lead and coordinate international action to protect the rights and well-being of refugees, returnees, internally displaced persons, stateless persons and asylum seekers and ensure that they have the protection of a state. Following the Second World War, the UN General Assembly established this agency and renewed its mandate in 2010 until there were no more refugees. For its efforts in refugee rights protection, UNHCR was the recipient of a Nobel peace prize in 1954 (Feller, Türk and Nicholson, 2014).

In Ecuador, UNHCR works with the government to get refugees the documentation needed to guarantee more security to these persons. UNHCR is committed to the principle of participation, which dictates that the refugees and others who benefit from the resources of the organization must be consulted over decisions, which affect their lives. Specifically, in Ecuador, UNHCR hosts the largest population of refugees in the Americas, which mainly come

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from Colombia as a result of the armed conflict in that country (UNHCR Ecuador, 2016). UNHCR seeks to find sustainable solutions to address the influx of asylum seekers, including but not limited to local integration, resettlement and repatriation. It also seeks to find solutions to prevent further forceful displacement of peoples by encouraging states and other institutions to create the necessary conditions to protect human rights and peaceful resolutions of disputes. Related to local integration, UNHCR plays a major role in funding and promoting educative programs such as entrepreneurship workshops to guarantee that refugees have an opportunity of adapting to the new country not only socially but also economically (UNHCR Ecuador, 2016).

THE SPIRAL MODEL OF HUMAN RIGHTS CHANGE

According to the social constructivist approach, norms and institutions, such as international conventions and organizations such as the United Nations, are considered constitutive and therefore able to create new interests, and change the preferences and thereby the behavior of states (Bjรถrkdah, 2002). As Risse and Sikkink point out, social constructivist approaches do not ignore material and structural factors, however, they do not consider them as the primary reason for how identity, interests and preferences of states are generated. The causal relationship between material and ideational factors has to be turned around, since ideas and communicative processes are decisive for which material factors are considered important and worth fighting for (Risse and Sikkink, 1997). To a realist, on the other hand, international institutions merely mirror the balance of power in the world, and further, human rights are implemented in states merely due to the will of powerful states (Krasner, 1993). However, the realist approach may be criticized for not being able to explain why the human rights norm is implemented and complied with in states where no international financial institutions or powerful states pressure for compliance, or when pressure has been exerted simply for a short period of time (Risse and Sikkink 1999). Moreover, when powerful states condition foreign aid with a requirement of the implementation of the international norms of democracy or human rights, this might be due to the work of transnational networks or non-governmental organizations successful in changing the interests, morals, and finally policies of the powerful state. Norms influence

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political change through a socialization process that combines instrumental interests, material pressures, argumentation, persuasion, institutionalization, and habitualization (Risse and Sikkink, 1999). The spiral-model of human rights change, developed by Risse, Ropp and Sikkink, explains how international norms, through processes of ‘norm socialization’, are implemented into local contexts. The spiral-model explains how the process of implementation consists of five stages, and takes as its point of departure a repressive regime, followed by ‘denial’, ‘strategic concessions’, ‘prescriptive status’, and ‘compliance with the norms in practice’ (Risse and Sikkink, 1999). Three kinds of causal mechanisms help the international norms to get implemented in a local context. The first one is distinguished by “processes of instrumental adaptation and strategic bargaining”, the second is characterized by “processes of moral consciousness-raising, argumentation, dialogue, and persuasion”, and the third by “processes of institutionalization and habitualization” (Risse and Sikkink, 1999).

One of the strengths of the social constructivist approach is its ability to combine rational and reflectivist approaches, and to be “a middle ground,” (Björkdahl, 2002), and further, the spiral-model draws on knowledge from both rationalist and constructivist approaches. Thus, in the early phases of the implementation where denial, tactic and strategic concessions are common, a rationalist or rational choice logic can by using instrumental or strategic reasoning probably best explain the norm implementation. Often, states initiate the implementation of an international norm to receive military or financial aid, or they are concerned about their international reputation. In later stages of the process of implementation, theories emphasizing communicative rationality, argumentation, persuasion, norm institutionalization and adaptation are more useful. Thus, a constructivist approach better explains the full implementation and compliance with the norm (Risse and Ropp, 1999). In analyzing the situation of Ecuador, its asylum policies and compliance with the Refugee Convention, the focus will be on the latter stages of the process, and hence, on the processes of argumentation, dialogue and institutionalization.

In addition to local and international non-governmental organizations, international powers and the domestic public, transnational networks are particularly important in order for human rights change to occur. The first purpose of these networks is to raise moral consciousness by putting the

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norm-violating states on the international agenda. Simultaneously, as a “bonus”, liberal states are reminded of their identity as promoters of human rights.

Secondly, the organizations empower and legitimate, and consequently mobilize, the domestic opposition in target countries. And thirdly, by pressuring the regimes simultaneously “from above” and “from below”, the incentives for change is greater (Risse and Sikkink, 1999).

According to Risse and Ropp, the spiral-model also indicates when the logic changes from a rationalist approach to a constructivist one. However, I believe it might be difficult to establish exactly when this shift takes place, and it would be interesting to examine the reasons why preferences and interests are changing first in a later phase. This is clearly an area where more research is necessary (Checkel, 2001). Further, to establish whether a government implements a norm as a result of new interests or preferences, or whether the implementation is simply strategic and performed to gain international respect, Risse and Sikkink point to certain signs suggesting the reason behind the implementation. The ratification of conventions and the implementation of international law into national policies suggest that the preferences of a government have changed. In addition, mechanisms to ensure that citizens can complain if the norm is not complied with, and whether the government recognizes the norm unconditionally, are important criteria to judge how well a norm is implemented (Risse and Sikkink 1999).

The spiral-model has been criticized for simply demonstrating that “transnational actors matter”, and for not sufficiently explaining the conditions for their influence (Cortell and Davis, 2005). However, the spiral-model presupposes that ‘norm resonance’ is a precondition for the full implementation of norms, and it does “theorize the stages through which a ‘fit’ between international norms and domestic understandings and institutions can eventually be achieved” (Risse and Sikkink 1999). According to Cortell and Davis, domestic entrepreneurs are important in order to convince the national arena of the necessity of implementing the norm and its national interest in doing so, and further, they emphasize the importance of the ‘openness’ of prevailing domestic institutions for human rights change to take place. Thus, “If domestic institutions do not provide for the participation of norm entrepreneurs in decision-making debates, then efforts of these actors to effect normative change are likely to fail” (Cortell and Davis, 2005). This factor is

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similar to the one of ‘societal openness’, suggested by Risse and Ropp, along with other “contextual factors”. Risse and Ropp do recognize that in addition to observing the norm socialization process itself and drawing conclusions from applying the model on the empirical case, “contextual factors” may be utilized to better understand why norms are implemented and complied with differently. That is, why does it take longer time for a norm to be implemented in certain countries or regions, and why is the scope of changes taking place not similar in all cases? In order to explain the differences in scope and time, “world time”, “societal openness” and “blocking factors” may be helpful (Risse and Sikkink 1999).

When investigating a case of norm implementation it is important to consider the “world time” in which this process takes place. The international human rights regime and the transnational advocacy network have gained strength and robustness over time, and the norm implementation process is arguably more rapid the later in history it takes place (Risse and Sikkink 1999). Norm robustness and specificity are both, according to Jeffrey T. Checkel, important preconditions for norm effectiveness (Risse and Sikkink 1999). Moreover, “blocking factors” may delay the process of norm implementation and human rights change, or, if they are absent, be an explanation for rapid norm implementation. Opposing national norms and value structures emphasizing for example sovereignty, nationalism or domestic cohesion more than human rights principles are examples of “blocking factors”.

According to Risse and Ropp, the existence of “blocking factors” may be an indication of whether the regime investigated is in one of the early phases of the spiral-model. The “blocking factors” might be viewed as “arguments put forward by norm-violating governments in a public discourse with their critics during the phases of denial or tactical concessions” (Risse and Sikkink 1999).

Lastly, “societal openness to external processes of argumentation and persuasion” is a factor contributing to the explanation of the difference in time and scope of human rights change (Risse and Sikkink 1999). According to Risse and Ropp, various case studies have shown how network socialization works particularly well in regions where the culture and the institutions are, “responsive to and can accommodate some meaningful degree of internal debate and external influence” (Risse and Sikkink 1999). Despite suggestions of several alternative causal ‘mechanisms’ to explain how international norms

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spread to local contexts, such as socialization, social learning, propaganda, communication and institutionalization, the social constructivist approach has been criticized for not being able to fully explain “the independent explanatory power of norms” (Björkdahl, 2002). I agree with Checkel that further research in this area would be fruitful to exactly pin down all the aspects of how norms change state behavior (Checkel, 2001). Nevertheless, I find the spiral-model as developed by Risse, Ropp and Sikkink useful when analyzing how far Ecuador has come in the process of implementing the international norm of refugees’ rights. Moreover, in conjunction with the “contextual factors”, I find it useful in suggesting explanations for non- compliance.

WHERE DOES UNHCR FALL IN THIS MODEL?

UNHCR only works in countries where its aid is demanded. As a result of the regional pressure from countries such as Venezuela and other international allies and the over influx of refugees into the country, and after years of being pressured by UNHCR to be allowed to work in Ecuador, the latter felt pressured and called in for UNHCR’s help (UNHCR, ‘’International Protection of Refugees in the Americas’’, 2015). Moreover, applying the spiral model, the ratification of conventions and the implementation of international law into national policies suggest that the preferences of Ecuador had changed. In this sense and as will be further developed later in the essay, as part of a transnational advocacy network composed of international agencies and local and international NGOs, UNHCR was able to act as the leader of such a group by exercising its influence and using its prestige to work in Ecuador in the implementation of the necessary measures to fully comply with refugee law. Furthermore, the ‘’world time” in which such process took place matters: UNHCR was able to exercise pressure upon Ecuador as a result of the situation Ecuador and the region was going through: a high influx of refugees from Colombia escaping the armed conflict (UNHCR, ‘’International Protection of Refugees in the Americas’’, 2015).

II. IS ECUADOR ACTING IN A RULE-CONSISTENT BEHAVIOR? ENHANCED REGISTRATION FOR REFUGEES

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One of the major challenges faced by both refugees seeking security and states who attempt to provide it is the lack of some form of personal documentation. Due to the type of circumstances in which refugees are forced to leave their home country, they are more likely than other aliens (individuals who are not citizens, nor permanent residents or anyone who enjoy any form of permanent or temporal status in a foreign country) to find themselves without identity documents (ids). Not having an ID is more than a source of inconvenience for a refugee. In almost all countries an alien must be able to demonstrate his identity and his lawful presence in the host country. Refugees unable to provide such documentation are often detained. Most countries have probations to detain undocumented refugees until their identity can be clarified. Aside from being detained, the lack of ID puts refugees in danger since they may be returned to the country where they are being persecuted (UNHCR, ‘’International Protection of Refugees in the Americas’’, 2015).

Even when the consequences of lack of IDs are less severe, not having a valid ID often means that refugees are unable to enjoy their international protection right since they need to establish vis-à-vis the government their ID and their refugee character. Moreover, access to basic services such as education, health care, or rations or even employment is limited to a refugee who has no ID (UNHCR, ‘’International Protection of Refugees in the Americas’’, 2015). While other aliens can ask their own government for help in obtaining the needed documentation, refugees who lack an ID do not enjoy such benefit and thus depend upon assistance of the country of refuge or upon UNHCR for assistance in obtaining the valid documentation. Given the often massive influx of Colombian refugees escaping the long standing conflict in the neighbour country and the remote areas where they tend to settle once they enter the Ecuadorian territory, a significant percentage of refugees in Ecuador lacked adequate documentation and were actually living without any significant protection from the Ecuadorian government (UNHCR, 2010). This implied that many did not have access to the previously mentioned services and were in a very precarious situation in which they were in danger of potential detention and refoulement and the negative consequences of living in extreme poverty.

While undocumented refugees keeps being an issue of concern in Ecuador, thousands of refugees have benefited from several asylum friendly policies im-

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plemented by the government under the guidance, collaboration and surveillance of UNHCR (UNDP, 2009).

Under the guidance of UNHCR, the government of Ecuador enacted a new asylum policy in 2008, which strengthened and modernized Ecuadorian asylum policy and reaffirmed its commitment to international human rights.

This led to the creation of the Ecuadorian General Directorate for Refugees (GDR), the government entity responsible for the refugee status determination (RSD) (FLACSO & UNHCR, 2010). The GDR Eligibility Officers based in Quito undertake interviewing and notification brigades in order to process the claims of asylum seekers in all provinces of Ecuador, granting access to those refugee communities which lacked access to the permanent GDR office.

An example of the cooperative work of UNHCR and the Ecuadorian government was the 2009 Enhanced Registration Program (ERP) with the goal of providing access to the refugee status determination and documentation to the large number of refugees that lacked access to regular registration channels due to lack of identification as previously described. UNHCR participates as a counsellor and supervisor of the DGR mobile teams, which visit the remote locations, provide documentation and process asylum claims in one day and one year renewable visas. Moreover, representatives of UNHCR participate in all sessions of the Eligibility Commissions and submit recommendations on each individual case being evaluated by the GDR eligibility officers. This allows UNHCR to also identify cases of refugees at risk that need specific protections and need and might be in need of resettlement (SIISE, 2003).

UNHCR described its collaboration with the Ecuadorian government through the ERP program as a necessary and effective way to deal with the lack of identification of refugees. It reduces the waiting period for government decisions on asylum claims from several months to just a few hours, and it takes the asylum process to the field, where many refugees were unable to access the asylums system in urban areas due to lack of resources or/and fear of being detained. The immediate result is that during the first two months of this program, the DGR issued 5,000 refugee visas. This program has led to the provision of registration and documentation of more than 27,740 refugees (FLACSO & UNHCR, 2010).

DURABLE SOLUTION FOR COLOMBIAN REFUGEES

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Beside the important recognition of refugee status and provision of immediate protection and services, UNHCR has constantly pushed refuge states such as Ecuador to establish long term solution that allow the refugee to overcome his vulnerable condition and be able to live a normal and sustainable life. The role of UNHCR is that of providing assistance to the international community in order to find such solution, which has been classified as voluntary repatriation, local integration, and reestablishment. These solutions do not have a hierarchical order. On the contrary, UNHCR considers them as complementary and when applied strategically, they allow an appropriate conclusion to the chapter of refugees persecution (UNHCR, 2015).

Access to integration and support programs has remained inadequate to the needs of the large numbers of refugees in Ecuador. For instance, many refugees live in very poor conditions in shantytowns in geographically dangerous locations or where there is high presence of violent groups. Thus, livelihood programs are needed. UNHCR’s support, finance, and education have allowed the slow but gradual expansion of these programs, which were once not part of the Ecuadorian policies dealing with refugees. Moreover, the work of UNHCR has led to the design of programs directed at the most vulnerable groups of the refugee communities such as women, children and the youth (UNHCR, 2015).

EXPLAINING COMPLIANCE: APPLYING THE SPIRAL MODEL

It is important to point out that by the time the refugee friendly policies were implemented, the norm of refugee protection was largely acknowledged by the Ecuadorian government. Despite being in an advanced stage of the spiral model, the Ecuadorian government’s capacity to protect the constant influx of refugees to remote regions was very limited. These limitations were not only in terms of economic factors but also due to the high instability of the region neighbouring Colombia due to the presence of organized armed groups.

In their work on the persistence power of human rights norms, Risse, Ropp and Sikkink recognized the existence of a fourth mechanism that leads to the sustained compliance with international norms: capacity building as a pathway to compliance. This mechanism recognized the existence of involuntary non-compliance. Basically, in a situation of “lim-

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ited statehood” which constitutes common phenomena in developing countries including Ecuador, the state is not able to implement the necessary policies to ensure human rights protection. Therefore, capacity building is defined as the institutionalization process of social interaction aiming toward education, training, and the building up of administrative capacities to implement and enforce human rights laws (Risse and Ropp, 1999).

In the case of refugees in Ecuador, UNCHR played a leading role in the redesigning of the asylum system in Ecuador. Through the provision of the necessary training to GDR eligibility officers, and the creation of programs of support to refugees, UNCHR ensures that the new system is one suitable for the situation of refugees in Ecuador. Moreover, through financial assistance directed to such programs, UNCHR ensured the necessary financing to reach those refugees located in the remote regions of Ecuador. Moreover, UNCHR trained GDR mobile teams personnel in all their asylum cases processing. In sum, by training, financing, and accompanying, UNCHR does not only support the compliance of the refugee right to be provided with needed documentation but it has become a key component during this process. The relevant Ecuadorian government agencies have been institutionalized to effectively and humanely treat refugees who did not have access to government institutions; nonetheless as will be explained later on throughout the essay, a major blocking factor to a ‘’perfect’’ implementation of the asylum regime is the discrimination against refugees present in the Ecuadorian society (UNHCR, 2015).

HAS THE ROLE OF UNHCR BEEN EFFECTIVE IN PROMOTING ECUADOR’S COMPLIANCE WITH REFUGEE LAW?

UNHCR has been relatively successful in offering assistance to the Ecuadorian state to ensure refugees’ rights. For decades, it has sought to offer technical assistance so that Ecuador’s legal framework adjusts to the international refugee regime. Its main aim is that refugees be recognized as actors who are able to enjoy the same social protection as other regular citizens in their host country. As mentioned before, through the promotion of international standards in public policy, UNHCR has helped Ecuador in mitigating the lack of institutional capacity to protect refugees. Through the creation of programs of support to the refugee populations and provision of legal and technical

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counselling to the government so that refugees can reach a certain level of self-sustenance, UNHCR has helped in building Ecuador’s capacity to respond to the needs of refugees in its territory. Moreover, by constantly exercising moralistic pressure upon Ecuador through campaigns and through any type of aid received by UNHCR in terms of financial, legal or technical assistance relating to the protection of refugees, UNHCR has been able to enhance and help maintain Ecuador’s position towards the refugees. Nonetheless, as will be expanded in the following section, certain challenges remain concerning refugees in Ecuador and the limited role of UNHCR. III. PERSISTENT CHALLENGES Though Ecuador has been quite willing to comply with the refugee regime, it still faces several challenges which go beyond UNHCR’s capabilities.

Such challenges include but are not limited to discriminatory treatment of refugees in public services and by the society in general and a lack of burden sharing responsibility. Even though UNHCR has worked closely with the Ecuadorian Ombudsman and other networks to try and raise consciousness on refugee issues, a change in xenophobia will not occur from one day to the next.

A change in xenophobia cannot be perpetuated through simple public policy.

One cannot change the mentality of all citizens of a state in a couple of years.

DISCRIMINATION AND EFFECTIVE ACCESS TO RIGHTS

While the government of Ecuador has taken significant steps to provide protection to refugees, Colombian refugees face numerous challenges to effectively access basic rights and, in many cases they are unable to find security.

As recognized by the Bureau of Population, Refugees and Migration (PRM) “many Colombians in need of protection who enter these countries irregularly must hide in remote border areas or in shantytowns of larger cities” (Ecuador Department of State Bureau of Population Refugees and Migration, 2010).

Many Colombian refugees are able to integrate into communities in Ecuador though many others are confronted with numerous barriers to their integration or protection, mainly: barriers to access basic rights (employment, education, housing, etc.) and lack of access to physical protection and security (Ecua-

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dor Department of State Bureau of Population Refugees and Migration, 2010).

The security situation has not only worsened for refugees in the border areas, many refugees report threats in Quito and other cities in the south of the country. The lack of safety shelters and mechanisms of expedited resettlement are of great concern. While UNHCR has the possibility of relocating refugees within the country, the lack of safety mechanisms places refugees at great risk.

The main challenges that Colombian refugees have faced (access to employment, housing, education, etc.) are paired with the spread of discrimination and a general context of poor economic and social conditions affecting the Ecuadorian population. In an urban context, refugees and Ecuadorians alike are confronted by difficult socio-economic conditions (FLACSO and UNHCR, 2011).

The barriers to effectively access some of the most basic rights recognized by the Ecuadorian government are also related to the spread of discrimination against Colombians, which particularly affects minorities (Afro-Colombians and indigenous people). The integration process takes place in a context dominated by a profound economic and ethnic segregation. In a study conducted by FLACSO/UNHCR on urban refugees, 52% of the refugees surveyed felt discriminated against in Ecuador, specifically in relation to negative perceptions in relation to nationality, gender, sexual orientation, refugee status, ethnicity and socioeconomic situation. Colombian refugees stated how discrimination affects them on a daily basis and particularly in their access to employment and housing. In the same survey public spaces were identified as the place where most refugees experienced discrimination, followed by the work place, public institutions and places of residence. Many Colombian refugees mentioned that when looking for housing or jobs they often hear: “We do not hire Colombians” or “We do not rent to Colombians”.

These situations reduce the type of employment available to refugees, increases abuse from employers and for women and minorities this can become a serious barrier to integration. The discrimination also affects access to housing for refugees, who expressed that they are in many cases severely limited in where they can find a place to live. In recognition of this challenge UNHCR put forward an anti-discrimination campaign titled “Pongamonos en los zapatos de los refugiados y demos el primer paso para entender su situación”,

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which translates as “let’s put ourselves in the shoes of refugees and let’s take the first step to understanding their situation” (FLACSO and UNHCR, 2011).

At the same time, the discrimination has a profound consequence on the self- perception of refugees. Discrimination is also expressed by verbal abuse on the streets and, in some cases, with physical violence. Women and children are particularly vulnerable to these situations. Refugees expressed that the discrimination in Ecuador makes them feel “without dignity” or as “useless or not worthy” (una porqueria). Discrimination and xenophobia worsens when several dimensions are added: racial, gender and nationality (e.g. Colombian afro-Colombian women). There are reports of xenophobic treatment from authorities and the police: “...in the northeastern region of Ecuador, there are frequent reports of xenophobic and discriminatory treatment of Colombians

by Ecuadorians, including harassment and arrest by police forces” (UNHCR, 2015). Many refugees mentioned that Ecuadorians have two stereotypes for Colombian refugees: men as guerilla members or drug traffickers and women as prostitutes. Apart from the challenges to access of employment and housing, many Colombians encounter barriers to access education for their children (particularly for teenagers), to the banking system and to health services.

While the government of Ecuador guarantees access to healthcare and education, in reality many refugees face many bureaucratic hurdles and requirements that might impede access to schools for many children (UNHCR, 2010).

A particular problem for urban refugees, not only in Ecuador but in many places throughout the world, is their near “invisibility” in their country of asylum. Despite the increase in asylum recognition for Colombian refugees in Ecuador, the phenomenon of invisibility has taken root, with untold numbers of Colombians in need of international protection living in Ecuador without ever having approached authorities. This phenomenon is paired with the visibility challenges that discrimination and xenophobia brings in the social integration of many refugees (UNHCR, 2010).

Colombian refugees are also affected, particularly in the border region, by the lack of security and the spillover violence (which in many cases puts them in danger or continuing persecution in the country of first asylum): “Ecuador’s border cities, and other localities that host a large number of refugees, are characterized by high levels of violence and crime, drug trafficking, arms smuggling and a high concentrations of brothels.” Women and girls

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among this population are exposed to a high risk of sexual and gender based violence. Women and girls from minority groups are in an even greater vulnerable situation. There is a greater need to provide protection and programs that focus on SGBV, particularly in areas in the border region. The lack of prevention, protection and prosecution of SGBV cases is prevalent (FLACSO and UNHCR, 2011). There is also a great need of livelihood programs that focus on women, particularly women head of households. There are reports of survival sex in the refugee population and we heard stories of trafficking and abuse of minors. The presence of human trafficking networks and legal prostitution creates a difficult context to work in the prevention of SGBV (FLACSO and UNHCR, 2011).

IV. CONCLUDING REMARKS The main purpose of this essay is to explore the process of implementation of international norms into local contexts, and particularly how well the Refugee Convention is implemented and complied with in Ecuador’s asylum policies. In order to gain insight into the world of norms and their importance, I have employed a social constructivist approach. In applying the spiral- model of human rights change developed by Risse, Ropp and Sikkink, I have sought to describe and explain the extent to which the Refugee Convention is complied with, and moreover, to find plausible explanations of the suggested discrepancy between norm and practice. I have found the spiral-model useful in establishing to what extent the Refugee Convention is implemented in Ecuadorian policies, since the process of norm implementation in the model is operationalized into observable mechanisms and processes. In applying the spiral-model and in considering contextual factors particular to Ecuador, I have suggested that the Ecuadorian government is complying with the Refugee Convention and the norm of refugees’ rights but that it still faces persistent challenges that hinder its level of compliance.

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WORKS CITED Acharya, Amitav, 2004. ”How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism” in International Organization, Vol. 58, spring 2004, pp. 239-275 Björkdahl, Annika, 2002. ”Norms in International Relations: Some Conceptual and Methodological Reflections”, in Cambridge Review of International Affairs, Vol. 15, No. 1, pp. 9-23 Checkel, Jeffrey T., 2001. “Why Comply? Social Learning and European Identity Change” in International Organization, Vol. 55, No. 3, pp. 553-588 Feller, Volker Türk y Nicholson Francis. 2014. UNHCR ‘’Proteccion de los refugiados en el derecho internacional’’.

Finnemore, Martha – Sikkink, Kathryn, 1998. ”International Norm Dynamics and Political Change” in International Organization, Vol. 52, No. 4, pp. 887-917 Krasner, Stephen D., 1993. “Sovereignty, Regimes, and Human Rights” in Regime Theory and International Relations. Rittberger, V. – Mayer, P. (eds.) Oxford: Oxford University Press Risse, Thomas – Sikkink, Kathryn, 1999. “The socialization of international human rights norms into domestic practices” in The Power of Human Rights: International Norms and Domestic Change, Risse, Thomas – Ropp, Stephen C. – Sikkink, Kathryn, (Eds.), Cambridge: Cambridge University Press Risse, Thomas – Ropp, Stephen C, 1999. “International human rights norms and domestic change: conclusions” in The Power of Human Rights: International Norms and Domestic Change, Risse, Thomas – Ropp, Stephen C. – Sikkink, Kathryn, (Eds.), Cambridge: Cambridge University Press UNHCR, 2015 ‘’International Protection of Refugees in the Americas’’ 1951 Geneva Convention relating to the Status of Refugees.

Convention against Torture and the American Convention on Human Rights.

U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009 (2009).

ACNUR / UNHCR (2010) El trabajo de ACNUR en zonas urbanas de Ecuador.

Retrieved November 26, 2010 from: http://www.acnur.org/t3/fileadmin/Documentos/RefugiadosAmericas/Ecuador/El_trabajo_del_ACNUR_en_zonas_urbanas_de_ Ecuador._Septiembre_de_2010.pdf .

UNDP (2009) Human Development Report 2009: Overcoming barriers – Human mobility and development, page: 62-63. Retrieved 26 November 2010 from: http://hdr.undp.org/en/reports/global/hdr2009/.

FLACSO & ACNUR (2010) Estudio sobre la población colombiana con necesidad de protección SIISE, Sistema Integrado de Indicadores Sociales del Ecuador (2003) Tendencias de Desarollo Social en el Ecuador:1999-2003. Retrieved25November2010from: http://www.siise.gov.ec/IPublicaciones.htm.

Proposed Refugee Admissions for Fiscal Year 2010 – Report to Congress, Department of State Bureau of Population Refugees and Migration, page 39

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International Covenant on Civil and Political Rights U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009: Ethiopia (2009).

RefugiadosUrbanos en Ecuador- Resumen Ejecutivo, FLACSO/ACNUR, February 2011 Colombia: Crisis Bubbling Over, Refugees International, Andrea Lari and Sean Garcia , July 2009.

IX.

TAKE ME TO CHURCH (AND SCHOOL) The Imperativeness of Discourse Control in Russia’s “Competitive Authoritarian Tool Kit”

NICOLE SPADOTTO

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ABSTRACT

ABSTRAIT

Despite a spike in freedom scores at the fall of Communism, Russia has year to year declined in freedom scores under the leadership of their president, Vladimir Putin. With the presence of legitimate democratic apparatuses, but the systemic cooption of those apparatuses, Russia falls in the grey area between binary categories of democracy and authoritarianism. This paper tests the generalizability of Edward Schatz’s five tools for soft authoritarian regime retrenchment by applying them to Russia’s competitive authoritarian government, with intent of offering a potential explanation of Putin’s high approval ratings. The paper argues that the toolkit theory is generalizable to competitive authoritarian regimes, but must be nuanced to place especial emphasis on managing information flows and discursive pre-emption to avoid alienating constituents. Additionally, Schatz’s fourth tool of harnessing media information flows should be expanded to encompass information disseminated through other avenues – like, in the case of Putin, through the educational system and the Russian Orthodox Church.

Malgré un pic dans les scores de liberté à la chute du communisme, la Russie a diminué d’année en année dans les scores de liberté sous la présidence de Vladimir Poutine. Les institutions démocratiques légitimes présentes sont ternies par la leur cooptation systémique, et par conséquence la Russie se situe dans la zone grise entre les catégories binaires de la démocratie et de l’autoritarisme.

Cet article teste la généralisabilité des cinq outils d’Edward Schatz pour une contraction du régime autoritaire doux en les appliquant au gouvernement autoritaire concurrentiel de la Russie, de manière à offrir une explication potentielle des taux d’approbation élevés de Poutine. L’article soutient que la théorie de la boîte à outils peut être généralisée à des régimes autoritaires compétitifs, mais doit être nuancée pour accorder une importance particulière à la gestion des flux d’information et à la préemption discursive pour éviter d’aliéner les constituants. De plus, le quatrième outil de Schatz pour exploiter les flux d’information médiatique devrait être élargi pour englober l’information diffusée par d’autres voies – comme dans le cas de Poutine, par le système éducatif et l’Église orthodoxe russe.

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I

n the article The Soft Authoritarian Tool Kit, Edward Schatz explores conditions that allow soft authoritarian regimes to succeed. Soft authoritarian regimes are regimes that build the appearance of democracy through the veneer of democratic apparatuses, even though the leader represses in authoritarian fashion. Schatz argues that soft authoritarianism ultimately succeeds based on the ruler’s employment of leadership skills and “persuasive” techniques within their regimes. Conversely to soft authoritarianism, the democratic apparatuses in competitive authoritarian regimes are real and might perpetuate democratic processes to an extent. These apparatuses, however, are both undermined and exploited by the competitive authoritarian leader, which ultimately makes the system inherently undemocratic. As such, competitive authoritarian regimes face legitimate competition; to be successful, leaders must shape public consciousness with surreptitious techniques or else risk being deposed through democratic processes. While Schatz investigates soft authoritarianism, I will apply the “soft authoritarian tool kit” theory to a competitive authoritarian regime to test generalizability across authoritarian regimes that employ characteristics of both authoritarianism and electoral democracy (Schatz 2009). Through the case of Russia, I hypothesize that competitive authoritarian rule will fulfill all tools in Schatz’s soft authoritarian tool kit, but place especial emphasis on employing the tools of managing information flows and discursive preemption to garner constituent support through more subtle, psychological means.

I. “TOOL KIT” SUMMARY Schatz develops his “soft authoritarian tool kit” theory because he is unsatisfied with binary categories of democracy and authoritarianism, which Levitsky and Way begin to explore in their scholarship. Levitsky and Way propose that classifying certain states as “transitioning to democracy” or “incomplete democracies” may be overly optimistic (Levitsky and Way 2002, 51). Classifying these states as “diminished” authoritarian regimes would be more accurate in reflecting their historical legacies and ground level practices (Levitsky and Way 2002, 52). Levitsky and Way, however, fail to explore what makes these quasi-authoritarian regimes function, which are gaps Schatz attempts to fill.

Schatz engages in a comparative case study between Kazakhstan and Kyrgyz-

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stan to identify factors that could causally explain which conditions allow soft authoritarianism to thrive. Kazakhstan and Kyrgyzstan were both part of the Soviet Union, as was Russia. Upon the collapse of the Soviet Union, Kazakhstan and Kyrgyzstan have implemented their own independent governments and have been transitioning from communism. As such, at the time of Schatz’s scholarship, both Kazakhstan and Kyrgyzstan could be classified as non-binary, soft authoritarian regimes. Soft authoritarianism is defined as creating appearance of democracy with façade democratic apparatuses, even though rulers have power and capacity to suppress and repress (Sorenson 2007, 27). Schatz investigates why soft authoritarianism, a regime that does not rely primarily on coercion and allows existence of democratic apparatuses, is able to sustain itself – and why certain soft authoritarian regimes fail or succeed (Schatz 2009, 203). Despite shared crucial starting points between the two states – specifically troubling geographies, economic decline, and ethnic clashes – Kyrgyzstani soft authoritarian leadership was ousted, while Kazakhstani soft authoritarian leadership retained power and popular approbation.

The dependent variable in this context is soft authoritarian retrenchment.

Schatz focuses on the ability of a soft authoritarian ruler to maintain power as opposed to being ousted. The independent variable is employment of leadership skills, specifically the leader’s ability to employ “persuasive” techniques, to utilize key institutions. Causally, public psychology can be shaped through institutions, ultimately “persuading” the public to support soft authoritarian rule.

Indicating tools for successful soft authoritarian leadership include committed core supporters, ability to mobilize outside supporters with material enticements and blackmail, managing opposition by harassing or sometimes coercing, managing information flows, and discursive preemption success. Election sequencing and resource endowments to purchase loyalty are important, but they cannot predict collapse nor explain authoritarian states’ variation. Schatz exhibits how Kyrgyzstani leadership failed, while Kazakhstani leadership succeeded, across the indicators.

Schatz’s theory applies to soft authoritarian states, which act differently from competitive authoritarian states. Unlike soft authoritarian states, which create the appearance of democratic apparatuses, the democratic elements of competitive authoritarian systems are not façades. This allows for some openness and competition that the incumbent government cannot fully control

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(Levitsky and Way 2002, 54); thus, opposition exists and has potential to gain power through democratic electoral apparatuses. However, incumbent governments’ “abuse of the state” gives them a significant advantage in retaining power over opponents, making the system undemocratic – competition is real but unfair (Levitsky and Way 2002, 53). I will be exploring whether Schatz’s identified tools are exclusive to success of soft authoritarianism, or whether they can also be applied to explain success of competitive authoritarianism through the case of Russia.

Why Russia?

Russia is defined as a competitive authoritarian system due to the presence of elections, legislature, judiciary, and media systems. These constitute democratic procedures that could depose incumbent leaders (as nearly happened in the 2000 election). Yet, these systems are undermined “using bribery, co-option, and various forms of ‘legitimate’ persecution,” giving incumbent leaders popularity and power retention advantages (Levitsky and Way 2002, 59). After the spike in freedom scores at the end of Communism, Russia has consistently year-to-year declined in freedom scores (Freedomhouse Report on Russia 1999-2015), becoming increasingly authoritarian especially in the past five years (Polity IV Regime Trends: Russia, 1946-2013) under President Vladimir Putin’s third term. Yet, Putin’s popularity remains legitimately high (Frye et al 2009, 206), providing an interesting base to study effectiveness of coercion versus discourse by means of explanation.

II. THE FIRST TOOLS: CORE SUPPORT, MOBILIZING SUPPORT, AND COERCING SUPPORT The first three tools for regime success Schatz outlines are that the ruler has a core group of supporters, ability to mobilize outside supporters through blackmail / material enticements, and ability to harass / utilize rationed naked coercion against the incompliant (Schatz 2009, 206). Putin fulfills all three categories. Even aside from powerful and heretofore loyal friends curated from childhood, KGB, and government, (Rigi 2012, 78) Putin was, and still is, “the people’s choice” (Frye et al 2015, 8) of ruler with approval ratings in the 80th percentile (Levada-Centre 2015). Putin has also been able to mobilize elites outside of core supporters by offering clans and interest groups material en-

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ticements, including facilitating free cash flow to Russian assets (Bershidsky 2014).

In terms of blackmail, Putin has leveraged Russian law for extortion (Rigi 2012, 70). Since oligarchs illegally accumulated assets, Putin has rallied elite support by threatening to freeze those assets (Rigi 2012, 77). Consequently, under Putin, coercive state capacity has increased (Taylor 2011, 3); for example, several oligarchs have been imprisoned or forced to flee Russia for attempting to undermine Putin (Rigi 2012, 77). Infamously, Putin arrested CEO of Yukos Oil Company, Mikhail Khodorkovsky, for embezzlement. Tellingly, Khodorkovsky had been publically outspoken against Putin’s government as he questioned the Kremlin’s economic policies and linked Putin’s regime to totalitarianism (Shlykov 2010, 109). Further, Khodorkovsky has links to the US, made thinly veiled references of potentially running for Russian presidency, and was aligning himself with powerful individuals within and outside Russia that could challenge Putin’s leadership (Shlykov 2010, 111). Thus, Putin has mobilized support through blackmail, enticements, and coercion while retaining core supporters.

III. THE FOURTH TOOL: INFORMATION FLOWS AND MEDIA Though Putin’s regime employs Schatz’s first three tools, competitive authoritarian regimes must use Schatz’s subsequent tools more dominantly for effectiveness, because blatant reliance on the first three tools will alienate voters. The levels of Putin’s “unconditional support” erode when Putin embarks on actions that could be construed as coercion, blackmail, or material enticements: like promoting KGB allies in his administration or undermining political liberties (White and McAllister 2005, 391). Thus, controlling discourses is imperative in competitive authoritarian regimes; legitimate democratic apparatuses have potential to oust leaders that appear too oppressive. Institutions must be leveraged to psychologically shape public consciousness to support the leader.

Schatz’s fourth tool constitutes that the ruler must manage information flows effectively, not by seeking total control but by guiding media to portray him positively (Schatz 2009, 207). Specifically, Putin effectively manages information through roping state and privately owned media into Kremlin in-

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fluence (by forging friendships with media moguls or annexing “hostile” media corporations) (Wines 2000). Putin’s control of the media differs from complete takeover because his actions are subtler than military seizures of broadcasting centers, and thus are difficult to unravel causally. For example, Putin applies legal traps (under the guise of anti-terrorist regulations) and repeated tax-investigations on media outlets and broadcasters that report stories do not align with state interests. Independent outlets are ostracized legally, monetarily, and rhetorically so they become viewed as “insignificant” or collapse. As such, most media outlets broadcast Kremlin-messaging to stay alive. Putin’s control of media is “less dramatic, less obvious, but just as potent” than complete takeover as Putin pressures media, effectively inundating Kremlin messaging through internal outlets and positive images of foreign policy through Russian-based international outlet RT (Dougherty 2015). Though technical “freedom” of press exists, the freedom does not exist in “prime time” but only on small stations and fringe publications (Treisman 2002, 69), allowing Putin to manage information without giving appearance of complete control.

IV. THEORY EXPANSION: MANAGING INFORMATION FLOWS BEYOND MEDIA Yet, in Russian context, Schatz’s fourth tool of managing information flows solely through media is limited. In competitive authoritarian regimes, the tool should be expanded to managing information flows through institutions, as the education system and Russian Orthodox Church offer compelling narrative shaping outlets. The level of education and the level of democracy in a state tend to be correlated (Our World in Data 2015). The Russian population has been highly educated in the post-Communist era (UIS Statistics) under a system that has a high global ranking (Pearson 2014). Countering these international trends, Russia is not democratic, but competitively authoritarian.

The timing of the turn of a society from an oral to literate culture is imperative, as the values are transmitted and retained through legacies (Darden and Grzymala-Busse 2006, 90). These legacies can further be leveraged by skilled competitive authoritarian leaders to garner popular support. In Russia, national interest in literacy appeared in the latter half of the nineteenth century (Mironov 1991, 251)– a time when Russian tsarist nationalism and traditional

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national-Orthodox values ran high, and a period Putin evokes in his rhetoric (Verkhovsky 2002, 341). The education system continued to develop in the Soviet era (Mironov 1991, 245), but when Putin ascended power, he embarked on a Russian education reform, with national grants given to institutions and uniformity in curriculum established top-down from the government (Bolotoy, 5). These actions allowed government values to permeate into education.

The values that were reinstated into the education system are nationalist-based, evoking legacies from pre-Communism. As Darden argues, education gives a base of “shared national identity and history” through “deliberate and systematic inculcation of a set of values,”(Darden and Grzymala-Busse 2006, 90) and Putin has specifically spoken about inducing extreme Russian patriotism through the education system by teaching Russian children to divide Russians from “others.” These actions are rooted in nationalism, but the effects also extend beyond it. Namely, when Putin evokes “patriotism,” he keeps the term fluidly ambiguous which opens space to express to those being educated the validity of persecution of individuals who do not agree with the Kremlin (Wood 2016, 107). In espousing and implementing “patriotic education,” Putin also linguistically aligns “patriotism” with the Soviet word “partiinost,” which roughly translates to “loyalty to the political party.” In this way, loyalty to Russia and loyalty to Putin become symbolically conflated through the education system (Wood 2016, 107). Education thus becomes a Russian-nationalism building project, which is at least partially framed as supporting Putin.

Russian nationalism and xenophobia are further compounded through Orthodoxy narratives. Putin and the Russian Orthodox Church enjoy a friendly relationship, with Orthodox leaders asserting that “refusing to obey the state authorities was unpatriotic” on basis of implications that Putin’s regime was against God (Verkhoysky 2002, 340). Sentiments of xenophobia, tsarist Russia nostalgia, and nationalism are circulated through Orthodox sermons (Coffin 2016); the Church has granted Putin “semi-official support,” as nostalgic values of “Orthodoxy, Autocracy, and Nationality” are evoked (Verkhovsky 2002, 335). The circulation of this rhetoric through church, schools, and media has fed back into popularity for Putin’s regime. He portrays reassertion of Russian power over Western threats through nostalgic and mythicized nods to previous powerful Russian eras (including Soviet), and links Russian resurgence to his leadership through media, education, and church (Verkhovsky 2002, 334).

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Putin’s approval ratings increase when he responds harshly in international conflict, with his image propagandized through media (White and McAllister 2003, 391). For example, in the Georgian-Russian war, most Russian media reported solely from Russian perspectives, uniting Russians under the umbrella of “negative mobilization” rallying around a ruler against common enemies (Volkov 2014). The media shapes Putin as reasserting Russian power and pride on an international scale; ultimately, Russians support Putin most consistently over his international position (White and McAllister 2003, 390). This nationalism coincides with the Orthodox Church’s collaboration with “aggressive nationalist and extremely anti-Western groups” within Russia. Additionally, the nationalism fostered through the Orthodox Church perpetuates a strong stance for restoration of autocracy, the imperial model, and thus renouncement of democracy, human rights, and other religions (Verkhovsky 2002, 334). Putin has espoused these actions and values in line with Orthodoxy rhetoric, and the Church has publically thrown support behind Putin as a result. Further, under nationalist, traditionalist, religious, and nostalgic rhetoric, information flows have been managed to garner widespread Russian support – which is only compounded through media.

V. THE FIFTH TOOL: DISCURSIVE PREEMPTION Schatz’s final tool is discursive preemption, defined as institutional and psychological circulation of narratives (most often by packaging messages through media) to undermine rivals challenging for power (Schatz 2009, 207).

In Russia, media apparatuses work to discredit opponents through rumour, especially during elections. For example, during the 2000 election, media focused on rumours that Putin’s opponent Grigory V. Yavlinsky had illegally campaigned on a military base, while raising questions about Yavlinsky’s sexuality and identifying his main supporters as Jews, homosexuals, and foreigners.

These discursive preemption techniques thus undermined Yavlinsky (Wines 2000).

Putin has also leveraged discursive preemption to centralize power through an “anti-oligarch campaign,” implicating certain oligarchs as criminals and asserting that oligarchs should be distanced from politics (Rigi 2012, 76).

Putin has framed his campaign against oligarchs as a triad of initiatives: increas-

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ing Russia’s GDP, modernizing armed forces, and overcoming poverty – with overcoming poverty attracting voters, and GDP increase and military modernization appealing to nationalism (Shlykov 2010, 124). By engaging in these strategies, and framing their purpose as for Russian betterment, Putin creates a positive nationalist rhetoric publically, while hitting oligarchs with intense taxes to finance the initiatives, weakening those oligarchs (Shlykov 2010, 125).

The campaign has worked effectively to undermine certain oligarchs in the eyes of the public while simultaneously consolidating more power with Putin.

VI. CONCLUSION: IMPLICATIONS My hypothesis is supported: competitive authoritarian Russian rule under Vladimir Putin fulfilled Schatz’s tools, with emphasis placed on managing information flows and discursive preemption. I have also found that Putin focuses most on managing information flows. Institutions can strengthen competitive authoritarian rule if leveraged properly. Thus, institutions can, and must, be utilized to psychologically shape public consciousness to support incumbent leadership in competitive authoritarian regimes. Therefore, when extending the toolkit to competitive authoritarian regimes, Schatz’s fourth tool of managing information flows through media should be expanded. Competitive authoritarian regimes manage information flows through institutions more broadly, including in the context of Russia the education system and Russian Orthodox Church. Somewhat supported is Boix and Svolik’s argument that elites are vital for the survival of dictatorships due to power-sharing models. In the case of competitive authoritarian regimes, elites facilitate dictatorship survival, but not from the standpoint of power sharing. Rather, elites can facilitate outlets to control narratives in competitive authoritarian regimes – which is important due to electoral democratic apparatuses that could legitimately displace rulers (Boix and Svolik 2013). The fifth tool of discursive preemption has been effective in undermining potential political rivals and shaping discourses through subversive means, though it is a technique used most decisively during election periods and not over consistent periods of time like managing information flows has been. The theory thus should be nuanced to encompass a breadth of discourse-shaping outlets, while also emphasizing the imperativeness of discourse shaping, while extending it to competitive author-

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itarian states. Ultimately, Schatz’s “tool kit” theory can be expanded to include competitive authoritarian regimes, thus enhancing and nuancing the generalizability of the theory across non-binary “diminished authoritarian” regimes.

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CONSTRUCTING CHINAâ&#x20AC;&#x2122;S RISE IN THE SOUTH CHINA SEA The Role of Soft Power and Strategic Narratives

LOUISE RIBET

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ABSTRACT

ABSTRAIT

Over the past twenty years, Chinese leaders have engaged in an active campaign of soft power. However, despite China’s efforts to promote its image as a peaceful rising power, many have framed its rise as overly aggressive, forceful, unpredictable and precipitated.

What explains this apprehension towards China? Why has China’s exertion of soft power failed to attract others to its culture, political ideals and policies? This paper argues that China has been unsuccessful in making its soft power attractive in the eyes of others because of its inability to maintain a consistent and legitimate narrative.

Underpinning this thesis is that, in essence, any soft power is predicated on a strategic narrative which projects a certain image of power. China’s efforts to construct a balanced soft power narrative have been upended by its attitude in the South China Sea: a situation which has aroused accusations that China only pays lip service to its soft power discourse and that this is merely a “slogan diplomacy.” Overall, the aim of this paper is to depart from traditional analyses of soft power, by explaining how soft power can act as a double-edged sword and by understanding how a coherent soft power strategy can go a long way in tempering the rise of a great power and facilitating peaceful power transitions.

Au cours des vingt dernières années, les dirigeants chinois se sont engagés dans une campagne active de soft power. Cependant, malgré les efforts de la Chine pour se promouvoir comme étant une puissance montante pacifique, beaucoup ont décrit sa montée comme étant trop agressive, puissante, imprévisible et précipitée. Qu’estce qui explique cette appréhension envers la Chine? Pourquoi l’effort chinois de soft power n’a-t-il pas réussi à attirer les autres à sa culture, à ses idéaux politiques et à ses lois?

Cet article soutient que la Chine n’a pas réussi à rendre son soft power attrayant aux yeux des autres en raison de son incapacité à maintenir un récit cohérent et légitime. Cette théorie repose essentiellement sur le fait que tout soft power est fondé sur un récit stratégique qui projette une certaine image de pouvoir. Les efforts de la Chine pour construire un récit de soft power équilibré ont été suspendus par son attitude dans la mer de Chine méridionale: une situation qui a suscité des accusations selon lesquelles la Chine ne fait son discours de soft power que du bout des lèvres et qu’il ne s’agisse que d’une «diplomacie de slogans».

L’objectif de cet article est de s’écarter des analyses traditionnelles du soft power, en expliquant comment celui-ci peut agir comme une épée à double tranchant et en essayant de comprendre comment une stratégie de soft power cohérente peut contribuer largement à tempérer la montée d’un grande puissance et à faciliter les transitions de pouvoir pacifiques.

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hina’s rapid rise has been characterized as unique, preoccupying, exceptional, and threatening all at once. The sheer volume of scholarship and media attention that the subject regularly attracts demonstrates the world’s fascination with China. Much of this fascination is preoccupied with the ways in which China exerts its influence, be it at home or on the global stage. In response, Chinese leadership has recognized that “the increase in our nation’s international status and influence will have to be demonstrated in hard power (…) as well as in soft power,” (Li, 23). The first appearance of the term “soft power”, ruan shi li, in Chinese discourse can be traced to 1992, but has gained increasing traction since 2007—both in theory and in practice (Wang 426). China’s soft power strategy can be distilled to three components.: culture, ideology, and institutions (Nye, 167). More importantly, China’s soft power message is one of peaceful development, harmony and good-neighborly conduct (Li, 8).

While there is no doubt that China’s soft power values can introduce constructive changes to the international system, it is yet to be determined whether China’s soft power model is attractive to the rest of the world. Indeed, despite China’s campaign of promoting its image as a peaceful rising power that is non-expansionist and non-interventionist, foreign states remain suspicious of Chinese intentions. The dominant image of China nowadays is one of an unpredictable rising power. China’s rise has been framed as overly aggressive, forceful and precipitated. In contrast, India’s rise is viewed in many Asian capitals as “predictable, stabilizing, cooperative and attractive,” (Paul, 162).

What then explains this apprehension towards China? Why has China’s exertion of soft power failed to attract others to its culture, political ideals and policies? In this paper, I will argue that China has been unsuccessful in making its soft power attractive in the eyes of others because of its inability to maintain a consistent and legitimate narrative. Underpinning my thesis is the idea that, in essence, any soft power is predicated on a strategic narrative which projects a certain image of power (Roselle and Miskimmom, 71). Hence, to understand what is restricting Chinese soft power influence on the world stage, we must turn to an analysis of the strategic narrative that carries China’s soft power forward. More specifically, in order to truly grasp the nature of China’s soft power strategic narrative, I will attempt to understand what and who informs its formation, projection and reception on the three levels of narrative iden-

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tified by Miskimmon: the International Narrative, the National Narrative and the Issue Narrative (Miskimmom, 76).

The argument is structured as follows. First, this paper introduces the theory of soft power and its underlying contradictions. In this section, I argue that more consideration should be given to soft power in that it represents a valuable source of influence on which states can rely to secure a higher and more legitimate international status, and facilitate peaceful power transitions.

Second, by bringing forward an explanation of the formation, projection and reception of China’s soft power, I discuss how effective it has been thus far. I then use the ongoing South China Sea dispute as a handle by which to examine the limits of China’s soft power strategy, in order to ensure that my thesis is solidly grounded in a contextual reading of the problem at hand. Finally, I delve into an analysis of the theoretical and policy implications of China’s soft power strategy. To this end, the recommendations in the final section should not be seen as an attempt to moralize on what constitutes a “right” Chinese soft power policy. Rather, my aim is to stimulate discussions on how a coherent soft power strategy can go a long way in tempering the rise of a great power and facilitating peaceful power transitions.

I. METHODOLOGY This article does not seek to convince readers that soft power strategies are the only determinant of a country’s rise or fall. Such a unilateral view eschews the fact that hard power remains the key determinant of many strategic calculations in international relations. Nevertheless, given that China could likely overtake American hard power in the near future–both militarily and economically–it is worth considering how soft power will enter the equation and affect China’s rise.

The second issue to be addressed concerns the question of how to measure whether a country’s soft power is successful. Soft power is a popular term, and is often employed to analyze how it complements usages of hard power or positively reinforces a country’s influence and status. In the words of Joseph S. Nye Jr., soft power is “the means to success in world politics,” (Nye). However, an atmosphere where soft power is gauged only according to its attractive force and resources is misleading as it underscores the coercive mechanisms through

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which soft power can work to produce a desired effect (Miskimmom, 71). It is key that these internal contradictions of soft power be acknowledged before soft power is deployed on the world stage as soft power can otherwise generate feelings of hostility and repulsion and ultimately backfire. Rather than focusing on what constitutes a state’s soft power, we should aim to understand the mechanisms through which it takes effect. In this respect, I am interested in the question of “how does the formation, projection and reception of a soft power’s strategic narrative influence a country’s attractiveness?”

This paper attempts to add to the rich and growing literature on China’s rise by questioning how China’s soft power strategic narrative can be deployed in relation to its hard power and how this interaction can successfully influence China’s relations with the rest of the world. Whilst much ink has already been spilled on the subject of China’s exertion of soft power, less attention has been paid to the influence it bears on its rise, and on how Chinese soft power could challenge the existing global order. Consequently, I examine the South China Sea territorial dispute as a handle by which to examine the intricate nature of China’s soft power strategic narrative and the relationship it bears to hard power. I further bring forward the idea that hard power can be applied in a way that enhances a country’s soft power.

This study will be drawing on explanations by Chinese scholars and Western scholars alike, in order to contrast their understandings of soft power and to better grasp the contradictory dynamics at play in the elaboration of a soft power strategic narrative. Moreover, this study aims to draw more scholarly attention to the constructivist paradigm that is often disregarded in explanations of rising powers. Thus far, constructivist scholars have “not elaborately discussed the non-Western norms or non-liberal norms that a rising power might hold” or how this might influence peaceful power transitions (Paul, 14).

The findings of this study will begin to conceptualize the role soft power can play in conciliating those non-Western norms to those of the dominant power.

II. UNDERSTANDING SOFT POWER: A LITERATURE REVIEW What is soft power? The term soft power was first coined and popularized in Foreign Policy by Joseph S. Nye (Nye, 167). In his ground-breaking article, he defined ‘soft power’ or ‘co-optive power’ as:

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A second, more attractive way of exercising power than traditional means…just as important as hard command power. If a state can make its power seem legitimate in the eyes of others, it will encounter less resistance to its wishes. If its culture and ideology are attractive, others will more willingly follow. If it can establish international norms consistent with its society, it is less likely to have to change. If it can support institutions that make other states wish to channel or limit their activities in ways the dominant state prefers, it may be spared the costly exercise of coercive or hard power

Simply put, soft power is the ability to influence the behavior of others not through coercion but rather through attraction. A country’s soft power rests on intangible power resources such as the attractiveness of its culture, its domestic and political social values, and the style and substance of its foreign policies. Although Nye is not the first to recognize the existence of soft power in the history of world politics, what makes his account distinctive is his emphasis on soft power as a platform for action, which empowers states to “set the agenda and structure the situation in world politics as to get others to change in particular cases,” (Nye, 167). The popularity of his concept can also be explained by the context in which he was writing. As the Cold War ended, concerns were expressed over the United States’s unprecedented levels of conventional power. It was therefore essential that an alternative form of power be found to reassure other actors and to sway attention away from American military preeminence (Qazi).

As with any theoretical framework, Nye’s concept of soft power presents conceptual ambiguities which should be noted when making the claim that soft power facilitates peaceful power transitions. Specifically, Nye’s explanation of soft power is constructed upon the assumption that cultural values are inherently attractive (Li, 4). Such an assumption underscores the possibility that soft power exerted through culture can be perceived as a form of cultural imperialism or cultural hegemony. While some elements in a culture can create attraction and seem natural in one social context, the same elements may be seen as illegitimate or unacceptable under contrasting conditions.

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Additionally, Nye’s account of soft power does not clearly expand on the character of attraction. It is useful here to introduce Janice Bially Mattern’s study on “Why ‘Soft Power’ Isn’t So Soft: Representational Force and the Socioloinguistic Construction of Attraction in World Politics,” (Mattern, 583). In this study, the author claims: On the one hand, Nye (implicitly) theorises attraction as a natural objective experience when he describes the allegedly universally attractive values of cosmopolitanism, democracy and peace. On the other hand, Nye implies that attraction is a social construct; he emphasizes the utility of public diplomacy for ‘converting’ foreigners so that they become attracted to ones’ own values.

Mattern dismisses the argument that attraction is a natural process and instead explains a model where attraction is a “sociolinguistically constructed” ‘reality’ through “communicative exchange,” (Mattern, 591). In other words, actors convey their perceptions and interpretations about what they see as attractive through language. However, in a communicative exchange, interlocutors do not always share the same language, and henceforth may have contradictory—if not competitive—interpretations of the constructed reality at play.

This is precisely what makes soft power so prone to misinterpretations and conflict. At issue here is that if the communicative exchange of attraction is ultimately a form of ‘verbal fighting’, then soft power can hardly be seen as a way to reduce tensions, mitigate conflict and facilitate peaceful power transitions.

Nye’s assumption that cultural values are inherently appealing in nature also raises the question of who or what is attracted, for how long and for what purpose? (Zhang, 48). In light of all these ambiguities and contradictions, a reconsideration of soft power is warranted. What is missing in much of the discussion surrounding soft power is clarity on the different levels in which the mechanisms of attraction play out. Two points must be addressed here.

The first relates to acknowledging that if soft power is about “sociolinguistically constructing” attraction through “communicative exchange”, then soft power is essentially about crafting a narrative. Accordingly, Nye has argued that in today’s global information age, international affairs have become a matter of “whose story wins,” (Nye, 43). While he is right in claiming that the value

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of soft power lies in the “story” or narrative that carries it forward, it is misleading to portray soft power as a battle of ideas. Such attitudes lead precisely to the problem of ‘verbal fighting’ or ‘cultural imperialism’ which ultimately cause soft power to backfire. Nye ironically warns against this when claiming that “the development of soft power need not be a zero-sum game” (Nye, 6). If soft power becomes a narrative struggle, it will only harden competitive power politics. The key is to structure soft power around a strategic narrative that creates a common lifeworld around shared knowledge and values. Such an approach to constructing attraction allows for soft power to become more legitimate, whilst also allowing for different strategic narratives to overlap rather than mutually annul one another.

The second point to be addressed relates to communication and consistency. Whilst it is necessary to acknowledge different genres of linguistic construction that can be adopted by a strategic narrative exist, there are also different levels upon which a narrative is projected, diffused, received and interpreted (Miskimmom, 74). To this end, soft power is not just about the source, but also how it is accepted across different “levels”. According to a study

by Miskimmon, these levels are the International System Narratives, the National Narratives and the Issue Narratives: the first refers to “how the world is structured, who the players are, and how it works;” National Narratives set out “what the story of the state or nation is, what values and goals it has,” and Issue Narratives set out “why a policy is needed and desirable, and set governmental actions in a context, with an explanation of who the important actors are, what the conflict or issue is, and how a particular course of action will resolve the underlying issue” (Miskimmom, 76). If soft power is to be wielded effectively, it is important to strive for consistency across these different levels as strategy employed at one level affects narratives built at another. In the words of Nye, “great powers try to use culture and narrative to create soft power that promotes their national interests, but it’s not an easy sell when the message is inconsistent with their domestic realities,”(“China’s Soft Power Deficit”). Hence, much attention should be payed to the question of spatial and temporal consistency when communicating a strategic narrative, be it through public diplomacy measures or media channels. This is especially so when one considers how the digital world informs strategic narrative. While allowing for information to be conveyed globally at the speed of thought, the Internet

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of Things has broadened the scope of the audience that must be considered when formatting a strategic narrative. It has further created a space for dissent, deliberation, and contestation to arise, making strategic narratives increasingly vulnerable to misperceptions and misinterpretations. Nye rightfully claims that the information age has provided an important vehicle for the effects of soft power to be diffused on a larger scale. But countries should nevertheless remain prudent when relying on the cyber domain to project their narratives.

It is interesting to introduce a discussion of the interaction between hard power and soft power, to wield a more comprehensive understanding of what is implied by ‘consistency’. Indeed, while Nye has noted that the two “sometimes reinforce and sometimes interfere with each other,” less has been said on which type of hard power influences the consistency of a soft power’s message (Nye, Soft Power 25). On the one hand, excessive or inappropriate use of hard power can lead to the decline of a state’s soft power, as noted with the decline in the US’s reputation after they intervened militarily in the Iraq War. Their unilateral show of force severely tainted their image internationally. Conversely, hard power is a necessary requisite for soft power. In the words of T.V. Paul, “soft power without hard power is a chimera (…) [and] can find its weaknesses exposed easily,” ( Paul, “Indian Soft Power”). It is unrealistic to believe that a state can rely solely on the use of soft power to guarantee its security (Qazi).

Hard power needs to set the stage before soft power can be deployed. Not only this, but hard power can also constitute a positive reinforcement to the effects of soft power. For instance, the humanitarian relief provided by the US military in the aftermath of the Indian Ocean tsunami conjured a positive response from the international community (Traub). Hard power can be wielded in a way that projects military prowess and competence. Hence, soft power should be viewed as a continuation of hard power: the two should be seen as mutually reinforcing when appropriately balanced. Nye terms this as “smart power,” (Nye, “Get Smart: Combining Hard and Soft Power”).

III. CHINESE SOFT POWER The aim of this section is to provide a comprehensive overview of the nature of China’s soft power and to identify its underlying strategic narrative.

I break down my analysis in several parts, first from its formation, then its

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projection, and finally to its reception.

FORMATION

Soft power, or ruan shi li, first appeared in the Chinese discourse in an article published in 1992 that stated mainland China was fearful of Western countries’ soft power and ‘peaceful evolution,’ (Wang, 426). Since this point, references to the term “soft power” have increasingly peppered academic and policy discussions of Chinese domestic and international politics as evident in the following graph (cited in Hongying Wang and Yeh-Chung Lu’s study).

In 2007, President Hu Jintao, at the Seventeenth Congress of the Chi-

nese Communist Party, stressed that China needed to invest in its soft power cultural resources to meet domestic needs and to increase international competition (Callahan, 218). China’s sudden uptake with soft power also garnered much attention from the international community (Li, 2). Indeed, there is no doubt that China’s soft power carries great potential. In line with Nye’s model, Chinese pundits have placed great emphasis on cultural traditions as China’s main source of soft power (Wang, 428). China is also one of the world’s oldest civilizations: a characteristic that is one of China’s greatest soft power assets.

As Singapore’s Senior Minister, Lee Kuan Yew, once noted, “soft power is achieved only when other nations admire and want to emulate aspects of that nation’s civilization,” (Gill, 17).

The civilizational aspect of China’s soft power is predicated on Confucian

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values of peace and harmony. It is believed that in an era of cultural diversification and globalization, such values are especially attractive (Li, 25). Moreover, the values of peace and harmony are said to offer an attractive alternative to the confrontational approach characteristic of Western, especially American, diplomacy (Wang, 428). An example of how this translates into the foreign policy component of China’s soft power can be found in its ‘good neighbor’ diplomacy. This approach places emphasis on seeking a “stable external environment so that Beijing can focus on its domestic socioeconomic development, thereby reassuring China’s neighbours about the country’s growing strength” (Gill and Huang 21). These sources suggest that Beijing remains faithful to the parameters identified by Nye: culture, political values, and foreign policy.

However, Chinese analysts tend to deviate from the traditional conceptualization of soft power by focusing on economic models as a source of strength.

Accordingly, China is keen to point to the success of its model of development: the ‘Beijing Consensus’ (Wang and Lu 429). Another major difference with China’s conception of soft power lies in the importance it attaches to the domestic foundations of soft power. While China certainly seeks to diffuse its soft power among foreign audiences, it is also very concerned with questions of regime legitimacy, and domestic stability (Callahan 219). In this regard, it views national unity and coherence as necessary to make Chinese soft power attractive (Wang and Lu 430). In sum, China’s soft power strategic narrative is one of “peaceful development”, harmony and good neighborly conduct.

PROJECTION

In his detailed study “China’s Soft Power Push: The Search for Respect,” David Shambaugh enumerates the initiatives that China has undertaken to diffuse and to project the soft power message described here above (Shambaugh 99-107). As documented in the study, China has invested billions in external publicity work: “analysts estimate that the annual budget for “external propaganda” runs in the neighborhood of $10 billion annually. By contrast, the U.S. Department of State spent $666 million on public diplomacy in fiscal year 2014” (Shambaugh 100). Most of these funds aim to expand China’s media presence overseas and break “the Western media monopoly”, through its Xinhua News Agency and CCTV channel. The goal is to tell China’s story to the

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world, by siphoning the market share from other multimedia conglomerates such as News Corp, Viacom, Time Warner, CNN, BBC and Al Jazeera (103).

Beijing’s “going out” strategy has not been limited to the media world; it has also focused on educational measures, by distributing 20,000 scholarships to foreign students every year and setting up over 500 Confucius Institutes in 125 countries to promote Chinese language and culture (Center for Strategic and International Studies). Other initiatives have been undertaken like hosting the 2008 Olympic Games, the 2010 World Expo, the 2014 Asia-Pacific Economic Cooperation and the 2016 G-20 summit.

RECEPTION

However, Shambaugh’s study concludes with the claim that China has a deficit in soft power and is facing an “uphill battle” as its global image has “yet to see any demonstrable improvement” (Shambaugh 107). China’s soft power reach is broad but thin. Nye has argued that the attractiveness of soft power can be quantified and measured through a number of indirect indicators such as public opinion polls, number of patents, R&D expenditure, book sales, and music sales (Wang and Lu 446). Yet, some have questioned whether soft power can be empirically measured as an entity or variable, considering that the ultimate success of soft power essentially lies in its ability to influence policy (Callahan 225). However , soft power is not just about the source, but also about how it is accepted across different levels. This is why China’s neighbors continue to gauge its cooperative foreign policy through testing its handling of territorial disputes (Ji 131). For this reason, I bring forward a case study of the South China Sea territorial dispute in which China is involved. The goal of this case study is to identify the different narratives at play, and to further gauge how these influence the receptivity of China’s soft power strategic narrative. Overall, my argument is that China’s actions in the region, because they are seen as inconsistent and illegitimate, have created a narrative imbalance for China’s soft power strategic narrative, further undermining the country’s ability to influence policy.

IV. CHINESE SOFT POWER IN THE SOUTH CHINA SEA

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The South China Sea dispute concerns competing territorial and maritime claims over the Paracel and Spratly islands, involving a grand total of six claimants: Brunei, Malaysia, the Philippines, Vietnam, Indonesia and China.

Each of these countries brings their unique historical outlook and domestic politics to the negotiations, resulting in an incredibly tense situation that is complicated to resolve (“Why is the South China Sea contentious”). Disagreements over the territorial claims have resulted in a number of direct military confrontations and military build-ups in the past years, in which China has been the most involved. China’s flexing of military muscle killed more than seventy Vietnamese troops in 1974 and sixty Vietnamese sailors in 1988. In January 2013, Manila said it was taking China to a UN tribunal under the auspices of the UN Convention on the Laws of the Sea, to challenge its claims in the South China Sea. In May 2014, the introduction by China of a drilling rig into waters near the Paracel Islands led to multiple collisions between Vietnamese and China ships. On July 12th 2016, the Permanent Court of Arbitration of The Hague released an award on the “Philippines v. China” (initiated by the Republic of the Philippines) which ruled that China was illegally encroaching into the Philippines’ EEZ and that China had violated UNCLOS (United Nations Convention on the Law of the Sea). China, in reaction, chose to dismiss the ruling, claiming it was illegal and would not be accepting any proposition or action based on the decision. China further failed to bring forward convincing evidence nor logical arguments to support the legitimacy of its territorial claims (Wang).

CHINESE SOFT POWER: NAVIGATING DANGEROUS SEAS OF NARRATIVES

China’s soft power strategic narrative of “peaceful development”, harmony and good-neighbor conduct has been put to the test in the South China Sea. As noted previously, if soft power is to be wielded in an effective way, it is important to strive for consistency across the different narrative levels (International System Narrative, National Narrative and Issue Narrative), as strategic narratives employed at one level may affect narratives at another level. However, China is perceived as doing the exact opposite: China’s attitude in

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the South China Sea has aroused accusations that China only pays lip service to its soft power discourse and that it is merely a “slogan diplomacy.”

INTERNATIONAL SYSTEM NARRATIVE

At the international level, China’s territorial claims in the region have been interpreted as yet another manifestation of its “charm offensive”. The past military confrontations over territorial claims involving China, its refusal to accept international norms from the ruling of the Permanent Court of Arbitration of the Hague, and its reluctance to engage in multilateral negotiations over the dispute, have significantly contributed to the “Assertive China” narrative and delegitimized China’s soft power narrative of peaceful development, harmony and good neighbor conduct. China’s soft power campaign has been further hampered by the competing international narratives, or ‘verbal fighting’, between the US and China over who will be the region’s next credible security guarantor (Austin).

NATIONAL NARRATIVE

The national level of narrative is concerned with what the story of the state is, and what values and goals it has. The problem with China’s national narrative on the South China Sea is that there are several competing narratives. As Zheng Wang demonstrates through his research, there is not a clearly-defined roadmap for government practitioners to follow” (Wang). Indeed, creating appeal for China’s soft power will be more difficult if it does not communicate a consistent national narrative for the South China Sea. To add to the confusion, China’s soft power narrative predicates itself on a nationalist discourse of regime stability and national unity. Part of this discourse draws from narratives that emphasize the “century of nationalist humiliation”, which as Gries notes, “frame the ways that Chinese interact with the West today” (Gries). It is easy to understand from this perspective how China’s intentions in the South China Sea could be interpreted as part of a nation’s attempt to avenge humiliation, and to serve the “great rejuvenation of the Chinese nation” (Fangyin 872). Such a foreign policy outlook is likely to sustain fears of a revisionist Chinese power and undermine China’s soft power appeal. Another rea-

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son as to why China’s national narrative is viewed with suspicion is because of its ‘democratic deficit’. In the words of T.V. Paul, this democratic deficit creates “great uncertainty for its neighbors and the US because China’s intentions are not easy to gauge. (…) Even if China proclaims that it is a peace-loving nation and that it has a ‘peaceful rise/development strategy,’ other countries have little incentive to take this Chinese rhetoric for granted” (Paul 12). This is especially so when one considers the inconsistencies between China’s international narrative of peaceful development and its domestic realities: jailing human right lawyers and Nobel Peace Laureate Liu Xiaobo, repressing the Uighur minority, and denying Taiwanese claims to independence (Nye, “China’s Soft Power”).

To a large extent, the problem with China’s national narrative lies in its lack of clarity and communication of a single discourse from the government. It is believed that China’s capability to influence other states through soft power is restrained by a lack of agreement on what constitutes Chinese culture and values (Li 2). This has made China’s national narrative prone to multiple interpretations, further resulting in the overwhelming perception of China as a revisionist, forceful and unpredictable nation. Hence, it is understandable why China’s presence in the South China Sea would be viewed with suspicion.

ISSUE NARRATIVE

An “Issue Narrative” determines “why a policy is needed and desirable, and sets governmental actions in a context, with an explanation of who the important actors are, what the conflict or issue is, and how a particular course of action will resolve the underlying issue.” Hence, the questions we need to answer here are: why have the Chinese taken such a sudden interest in the concept of soft power? How can we explain the international attention given to China’s soft power? What is the political logic behind its raging discourse?

Several factors come into play. Nye’s original explanation for the appeal of soft power fits nicely here: Given the changes in world politics, the use of power is becoming less coercive, at least among the major states. (…) In earlier periods, the costs of coercion were relatively low. Force was acceptable and economies were less interdependent. (…) Because the use of force

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has become more costly, less threatening forms of power have grown increasingly attractive. (Nye, “Soft Power” 167-168).

Moreover, the near-universalization of the norms of territorial integrity and non-intervention in today’s international system render the traditional expansionist model of rising powers highly costly, if not unthinkable. In light of the above considerations, it is understandable why Chinese policy makers and analysts would be interested in the feasibility of soft power. The discussion of soft power inside China has also largely served to dispel concerns of a “China threat”. Chinese analysts believe that they should concentrate on developing its soft power because it would make China less alarming and thus more acceptable to other countries in the world (Wang and Lu 436).

However discourse external to China has been skeptical of Chinese soft power. One of the main suspicions concerns the following: “China’s soft power is seen as rising exactly at the same time as when the American soft power is perceived as being in decline, that China is seen as providing an alternative model – the Beijing Consensus vis-à-vis the Wahsington Consensus – of economic development for developing countries, [and] that China is claimed to be working diligently to undermine American influence in many regions of the world” (Zhang 57).

Others have questioned China’s discourse of soft power on the basis that it is purely rhetoric, or a ‘slogan diplomacy’, used to justify and dissimulate more aggressive behavior. Considering that China’s soft power thus far has been rather ineffective in co-opting others to change their foreign policy behaviour to be in line with what China prefers in global politics, it seems that what remains of soft power is just a conceptual shell of soft power: “China has used soft power only in the sense that it has exercised its power softly. It does this consciously to show that it is not a bully” (Li 2). In that sense, it is easy to understand how China’s claims to “good neighbor diplomacy” in the South China Sea are invalidated and convey the idea of a wolf in sheep’s clothing.

V. THEORY AND POLICY IMPLICATIONS Soft power is essentially about crafting a narrative and maintaining consistency as the narrative is diffused, in order to ensure that it is effective-

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ly received, interpreted and accepted by actors across different levels. Thus, Beijing’s ability to pursue a coherent and consistent narrative within the international-system, national and issue narrative levels is crucial for advancing an attractive soft power to its neighbours and around the world in addition to mitigating the risk of conflict in the South China Sea. There are certain measures Beijing could take to minimize the risk of having its soft power narrative be misinterpreted or discredited as outlined below.

CONSTRUCTING A COMMON NARRATIVE

One of the core problems China’s soft power narrative has developed is ‘verbal fighting’: a form of competitive exchange whereby one narrative is discarded at the expense of another. I have argued earlier that if soft power becomes a narrative struggle, it will only harden competitive power politics.

As such, it is critical for China to try to structure soft power around a strategic narrative that aims to create a common lifeworld around shared knowledge and values. Such an approach to constructing attraction allows for soft power to become more trustworthy and legitimate, while also allowing for different strategic narratives to overlap rather than mutually annulling one another. Yet, China’s ability to create this shared narrative seems to be severely restricted by the lack of universal appeal and moral authority currently emanating from the nature of its authoritarian regime, and its disrespect of major human rights.

Further, the emphasis put on Chinese exceptionalism and China’s sense of superiority has reinforced the idea that China’s model is “one of a kind” and cannot be replicated (Jacques, “The Middle Kingdom”). If China’s narrative does not resonate with other nations, China’s rise and actions in the South China Sea will continue to be interpreted as threatening. In order to ameliorate this concern, China must adopt and transmit global values that the international community can appreciate.

SOCIALIZATION

In this regard, Alastair Johnston’s observations are constructive. According to Johnston, China’s efforts to socialize into the existing international system institutions have been invaluable in legitimizing China’s role as a “main-

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tainer” and not a “challenger” (Johnson). The question thus is whether China’s increased efforts to settle the South China Sea dispute through institutions like ASEAN would help in fostering a shared narrative with commonly-developed norms, which could legitimize China’s soft power conduct of harmony.

COMMUNICATION IS KEY

The way in which this narrative will be communicated is paramount.

China must clearly articulate a single national narrative on its position in the South China Sea, and subsequently diffuse this narrative in a tempered way through the right channels. In doing so, China must accept a lack of control over the different levels across which the narrative will be diffused. When a country strives for too much control over information, it can come to be perceived as “sheer propaganda which other countries will resent” (Paul 161). A ‘discourse war’ is precisely what must be avoided for China’s narrative to not enter into a zero-sum game. Similarly, other parties involved in the South China Sea conflict must restrain from projecting their own interpretations of China’s narrative, which could further escalate and intensify the misunderstandings (Li, “Assessing U.S.-China”). Placing excessive emphasis on China’s use of hard power will overshadow its soft power efforts. This could potentially provoke China to abandon these efforts to focus instead on counteracting accusations around its hard power, through other types of military engagement.

MATCHING SOFT POWER WITH RESPONSIBLE HARD POWER

More importantly, to lend credence to this rhetorical campaign, China must make corresponding behavioral adjustments, especially in the South China Sea. As I have argued earlier, whilst soft power is essentially a sociolinguistic construct, hard power is a necessary requisite for soft power. I further argue that soft power can bring reputation, credibility and legitimacy to a state’s power position in the global system, if it is developed and exercised in conjunction with the right type of hard power—a less belligerent and more responsible hard power. In this respect, “it is in China’s interest to engage in military confidence building exercises with its neighbors and share information on its intentions and capabilities” (Paul 17). To reinforce this, Kai He has commented

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on China’s military stance in the South China Sea, claiming that China should communicate that it has limited goals in the region to alleviate US threat perceptions regarding China’s rise: “Through constraining its offensive capabilities, the rising power can strengthen its non-aggressive commitments to the outside world” (He 204). China should continue engaging on this path of cooperative militaristic engagement, because it signals that China recognizes the responsibility it bears in the international system. Assuming a higher profile in regional security issues, such as drug trafficking, counterterrorism, or border disputes, will also reinforce perceptions of China playing a constructive role in regional security affairs and will frame its defense modernization program in a more favorable light (Godwin 122). Projecting soft power solely on the cultural front through concepts of harmony and good neighborly conduct does not suffice: actively participating on the political and security front too should be considered if China is too wield a comprehensive soft power narrative.

VI. CONCLUSION China’s repeated and multifaceted attempts to spread its soft power will not ensure it will become a world power, for China must first resolve a diverse array of preexisting complications. China’s soft power narrative is fragile at best: it is rife with inconsistencies and contradictions. The competing narratives at play on the international, national and issue levels in the South China Sea evidence this claim. China’s ability to lend credence and coherence to its soft power narrative will, in part, depend on the ways in which it will maneuver its domestic realities. It will also depend on the mechanisms through which it will continue to build and to channel its soft power discourse, be it on a cultural, political, social, institutional, security, or media front. Building the soft power discourse into a common and shared narrative will also be crucial. As Nye argues, when a country’s culture includes universal values and its policies promote values and interests that others share, it increases the probability of obtaining its desired outcomes because of the relationships of attraction and duty that it creates” (Nye, Soft Power: The Means to Success).

Nevertheless, we should not be too quick to dismiss the existence of Chinese soft power simply because it has not reached the levels or forms of U.S. soft power influence. Indeed China’s soft power could potentially be quite

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powerful on the global stage. However Chinese soft power does not ensure that the world will be shaped in a China-centered international order. On the contrary, as the late Fei Xiaotong has claimed, China’s soft power could be expected to contribute to the world’s understanding and practice by offering a cultural retrospection of the world’s systemic and moral values (Xiao 21).

Moreover, it would be a mistake to dismiss China’s soft power on the basis that it lacks cultural or moral appeal. The very fact that the discourse on China’s soft power exists marks the end of Western universalism. Western norms, values and institutions will increasingly find themselves competing with those of China. As Martin Jacques rightfully notes, China’s population mass will eventually oblige the rest of the world to acquiesce, if not accept, China’s way of doing things. “Size will enable China to set the terms of its relationships with other countries; (…) its gravitational power will grow exponentially in the future” (Jacques, “Concluding remarks” 582). When we think about China’s soft power, we must think beyond the strictly academic confines of the theory and acknowledge that China’s soft power potential may perhaps lie elsewhere in more subtle manifestations of its soft power.

If anything, China’s soft power narrative must be followed with close attention. Studying China’s soft power narrative provides insight as to what China’s underlying strategic motives are and how these could influence peaceful power transitions. “Narratives can be a power resource setting out what characterizes any state in the world, or how the world works” (Roselle et al.

72). They indicate who they see as the immediate protagonists and define the boundaries of thought and action of a certain situation. They manifest themselves across different levels and the interplay within these levels can reveal power struggles or potential conflict triggers. China’s exercise of soft power will not only be crucial in defining the image it projects in the international system (and in the South China Sea) and managing misinterpretations about its hegemonic motives but also in determining whether states will adopt a policy of containment or accommodation towards China. In essence, China’s soft power narrative is a crucial determinant of its rise to great power status.

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