Israeli Nation-State Law: Legalising Discrimination

Australia will always be my home. My professional ambition is to work in the field of human rights by completing short-term contracts where I report as a program specialist on program fidelity and consult on M&E assurance in the field of education for children and young people. But home is where I am building a stronghold of friends and family, where I love my job and have a stable routine, where I get the chance to go for weekends away hiking and camping, where I feel secure and free. I used to feel trapped in a dead-end job, living with people I did not really get along with and so I would imagine ideas of escape to somewhere else, but it was my life that I needed to change and not my location and right now I can say that Australia is a wonderful place.

I am currently visiting Aida refugee camp in Bethlehem working with young people and exploring and developing my skills, but the restriction to my movements, the fear of even going for a long walk on my own, the sight of teenagers holding weapons and toddlers roaming the streets on their own barefoot in dirty clothing sends shivers down my spine. Only this morning, a young boy was shot and killed by Israeli soldiers in the neighboring Dheisheh refugee camp. Unfortunately, I had a meeting at the Walled Off Hotel with a friend and on my way back I turned the corner to find young people protesting the fatal attack and were throwing stones at the Israeli Sniper Tower in Bethlehem, one hitting my arm by accident as it ricocheted off the wall from the building beside me as I suddenly found myself caught in between the clashes.

My visit to the camp has given me direct access to see how unfortunate the circumstances are for these young boys and girls, all of whom have very limited opportunity to find work or to study, their movements curtailed because they have no money and are confined behind restrictions of the Israeli occupation, continuously belittled and degraded and where their chances of exploring their creativity or other skills remains extremely narrow. To escape that feeling of powerlessness, many turn to crime and form attachments to religious and political ideologies that give them a sense of purpose such as becoming a shahid or martyr dying for their faith, which enables an escape from their unhappy situation by imagining themselves a part of something bigger.

It is whole populations being imprisoned within extreme socioeconomic conditions, internally displaced from their homes and feeling the tension of the constant threat of attack, with overcrowding, poor infrastructure and restricted access to food and water. 42.5% of the population of Palestine are refugees, with UNRWA figures showing a total of 5,340,443 (2017) registered Palestinian refugees across Palestine, Jordan, Lebanon and Syria, the total increasing when considering worldwide refugees located in other countries. Since 1948 when Israeli forces expelled and displaced Palestinians from their homes known as the al-Nakbah and further perpetuating totals following the 1967 war that ultimately led to occupation of regions in the West Bank and Gaza, Palestinians remain the longest and one of the largest displaced refugees in the world.

Article 12 of the International Covenant of Civil and Political Rights discusses freedom of movement both internally and the ability to leave, where one shall not be arbitrarily deprived of the right to enter his own country. Further to this, the right to self-determination is enshrined in principle within Art 1 (2) of the United Nations Charter, whereby previous to this in the Atlantic Charter by Roosevelt and Churchill, it claimed that “[N]o territorial changes that do not accord with the freely expressed wishes of the peoples concerned.” The charter itself in addition to this right clarifies how the principle of self-determination also concerns other territories that assume responsibility to ensure that measures are taken to assist and promote international peace and security so that the interests of the inhabitants are recognised or enabled (Art 73). Israel, on the other hand, has set aside their obligation and indeed continues to disable the conditions necessary for Palestinian self-determination.

Benjamin Netanyahu, who I see as a leader who has done nothing but destroy the remaining prospect for any two-state solution in the region, is chairman of the right-wing Likud Party and current Prime Minister of Israel and the party while supportive of improved Arab-Israeli relations has a strong opposition to Palestinian statehood. The party continuously undermines any potential peace settlements as seen with Netanyahu’ clear and unambiguous statement that Israel will remain in the West Bank with or without a peace deal that unnervingly clarifies an indefinite occupation in the region. The Oslo Accords divided the West Bank into three administrative divisions of A, which is effectively controlled by the Palestinian Authority and is comprised of about 18% of the territory and are separated by Israeli controlled checkpoints that Palestinians would need to travel through to get to other areas even within Area A. Refusal to pass is common as is the constant humiliation and treatment given to Palestinians at these checkpoints. Area B is even more complex, with limited Palestinian control and more exclusivity to Israeli security forces over Palestinian authorities, and Area C is under full control by Israel making up almost 60% of the West Bank’ territories. Palestinians living in Area C are often mistreated and have limited – if any – access to drinking water, and any Palestinian homes built in areas controlled by Israel are demolished. Even within that, Hebron is further divided into H1 controlled by PA and H2 by Israel where within 20% of the city are illegally built Israeli settlements. Palestinians control a small percentage of the land with a much higher population density and limited resources, comparatively to Israeli occupied territories making up the largest with the smallest population of Israeli settlements.

image.adapt.990.high.East_Jerusalem_map_2007.1404855022290

Criticism of Israeli policy and government is not anti-Semitism and it should not be a tool to assist solidarity and easily dismiss facts. I am not against Israel as a State, on the contrary, but the facts are that there have been continuous attacks and a blatant disregard to international law that clearly showcase Israeli discrimination against the Palestinians, largely confirmed by the recent legislative changes that now sanction discrimination as constitutionally acceptable. The Nation-State Law is not only dangerously discriminatory and intentionally alienates the Arab community of Israel, but any sensible person can see that it is in contravention of basic human rights and has clear ideological roots that borders an almost radical ultra-nationalism in the political spectrum. For instance:

1 (c) – The actualisation of the right of national self-determination in the state of Israel is unique to the Jewish people.

This ridiculous statement claims that only Jewish people have the right to self-determination in the region and is characterised as forcible suppression of Palestinian rights.

3 – The unified and complete city of Jerusalem is the capital of Israel

This remains a contentious issue since Palestinians also claim Jerusalem to be their political capital and the division between East and West Jerusalem is clarity of the ongoing issues. Donald Trump’ recent move to transfer the US Embassy into the region caused widespread protests as it became a reference to the ownership of Jerusalem by Israel. Since the UK originally declared Jerusalem to be an international zone, the west of Jerusalem was taken in 1948 during the war and the east in 1967.

4 (a) Hebrew is the language of the state.

The Arabic language will be removed as an official language and regulated, though afforded “special status” that really means nothing.

7. The state views Jewish settlement as a national value and will labor to encourage and promote its establishment and development.

This promotes the already highly disputed issue of Israeli settlements in the occupied territories, something Netanyahu has eagerly promoted. Prior to the development of Israel as a State, questions about what Israel would actually look like given the largely diverse Jewish communities across Europe – particularly Russia and Poland – where religion is heavily involved in state affairs or conversely to be more secular as promoted by mainly those from the United States continues even today. It is an unanswered civil question that can almost be seen between the residents of Jerusalem and Tel Aviv.

The illegal settlements built in occupied territories in contravention of International Law perpetuate feelings of antagonism and hostility that the Israelis themselves are creating and members of revisionist Zionism continues to remain skeptical to any concessions with Palestine, the assassination of Israeli leader Yitzak Rabin clarity of this deeply hostile Othering that almost suggests that the history and pain from a very long and terrible past continues to be present and unresolved today. Have Israeli citizens found forgiveness for what they have experienced in the past, or do they still believe and fear that everyone is and will always be against them and willing to destroy them? The fear and hostility, the aggression and political adaptation of a far-right nexus are all suggestive of a collective pathology that needs to be addressed, but in saying that when states like Iran scream nuclear annihilation it only enables and justifies Israeli hostility. Everyone deserves to protect themselves. However, the religious or biblical justifications that mobilise such authority in the region where Rabbi’s have recently initiated confirmation of this privileged position by mobilising over 1,000 Israeli settlers to try enter into Al-Aqsa Mosque in East Jerusalem in yet another blatant disregard to the cultural identity of Islam to the Palestinian people.

To focus on what reconciliation looks like following a history of violence that included genocide against the Jewish people and the psychological effects from such a long history of discrimination and violence has to current political affairs may contribute to a better understanding of how to promote and build peace. Laws that segregate communities and isolate diversity only perpetuate the problem as it reinforces and encourages illegal Jewish settlements in the occupied territories of Palestine. In addition to this, to promote peace and non-violence amongst the Palestinians who themselves have faced a recent history of violence, occupation and other gross violations of their human rights need to also find forgiveness in order to repair and sustain a state strong enough to build the framework for self-determination. What this forgiveness looks like is difficult to see right now, but I am confident to never give up hope that there will be peace.

 

Turnbull and Privacy of Information: A Deliberate Attempt To Prevent Open Governance?

Whilst Australian politics certainly appears lacklustre in comparison to the complications and political machinations of a number of global powers and a challenge of which I am naturally compelled, nevertheless Australia has and will always remain a country – insofar as human rights and law is concerned – that I am proud of and have an inherent respect for, regularly comparing  when researching or thinking about international relations as a whole. But it is not without its embarrassing moments, no doubt influenced by factious relations whether from powerful industry moguls or promoters of international conservatism. While I was happy to see Tony Abbott ousted, my fears that Malcolm Turnbull – being one who has public support – would cause Australians to overlook the fact that the Liberal Party contains a significant number of policies that have and continue to work against the improvement of Australian civil society. Being one more inclined to the judicial rather than executive elements of public policy, the first budget release of the Liberal government during the rather short period of Abbottism that cut funding for the Office of the Australian Information Commissioner [OAIC] proved that an intentional challenge against the very heart of the Australian Constitution appears to exist. Since the OAIC remains a legal entity, the intent of the Abbott government’ proposed abolition uniformly contradicts statutory obligations vis-à-vis section 61 of the Australian Constitution[1] in that to simply bring a legal entity to an end independent of parliament is to usurp the constitutional role of parliament itself, since only the latter has the right to legislate accordingly. This act against the OAIC raises manifold issues particularly with legislative and executive functions and the required separation of powers, the composition of the ministries and ultimately the impact such an implementation of executive powers in defiance to legislative obligations can have on the future of human rights in Australia. The Freedom of Information Act [FOI] itself was established to ensure the principle of an open and accountable government and ultimately the health of Australian democracy without polluting the overall objective of the constitution that gives people the ultimate control of the government.

Are we living in an age where privacy is no longer paramount to our individual happiness? There are complex, dynamic and swift system and processes readily available that can easily locate the details of any one. If one knows how to look, the system of finding private information is not as difficult even for a common person. So imagine that when you make your information on social media public, the technically advanced algorithms and programming can detect that information and combine it with other information in order to establish and predict private, even sensitive information. You google “prams” and suddenly every page you visit has various baby retailers and the more information one is able to attain, the more accurate the predictability. If social networking sites wanted to advantageously use the platform as an opportunity to gain more information – since retailers could use that information to sell their products – they would naturally compel people to give more information. Let’s take it one step further. You download an app that requests access to your friends list, it can detect who your best friend is or a family member because you have suggested it (I can see who last viewed my Facebook profile in less than ten seconds just by scanning through sources codes). It can also detect which page you visit the most  by using more refined systems and together, they can create a personalised facial composite using advanced software of your family or friends, whereby the image of this ‘person’ – a mash between someone you know and someone you don’t know – is used as part of an advertising or marketing strategy that implicitly compels you to a product, because you are unconsciously attracted to the image of that person that happens to be someone that you know.[2]

The abuse of privacy is not uncommon, i.e., the recently exposed News International who hacked phones to obtain sensitive data – Rupert Murdoch being on friendly terms with the Liberal Government – and there currently stands no strict policies that would prevent or protect ourselves from abusers. Whilst I could, in this instance, begin discoursing on the social contract theory and perhaps the rather calculating, Orwellian agenda where society has gradually sacrificed their privacy and freedom for the sake of ‘national security’, in principle the disclosure of even the most basic information that we supply can be used against us. I can say that capitalism and globalisation is at the very heart that compels one to disclose information openly and freely. The incredibly narcissistic marketing stratagems tell us to conform, to not care about privacy, to avoid forming our own opinion, even what we think we should desire, unconsciously manipulating the decision-making process through the inducement of receiving positive things whether it is material, or friends, or popularity, sexual pleasure etc. &c., that we end up buying products that we don’t even need or want. People will eventually believe that material determinism is the only truth when in fact they have unconsciously been told to give up their own autonomy, that we are already living in a ‘A Spacetime Odyssey’ in that the very technological mechanisms we created to advance are – ‘the root of its own destruction’ – actually working against us.

In 1996, the Australian Law Reform Commission published Open Government – A Review of the Federal Freedom of Information Act 1982 (ALRC Report 77) designed with the intent on ensuring the principles of public scrutiny and the accountability of government that encapsulates the quality of democracy is applied viz. the objective of the act itself. “The FOI Act provides a right of access to information in the possession of government departments and agencies. The fundamental reason for providing this right is to ensure open and accountable government.”[3] The publication confirmed the necessity to improve the quality of the decision making process that citizens should possess and as a consequence access to information is a criteria of democracy. Whilst democracy itself is ambiguous in definition, particularly since it poses intractable theoretical issues that limits its conceptual interpretation, broadly speaking the minimalist view of what constitutes a democracy can be defined as the ‘participation of all adult members of society, freedom to formulate and advocate political alternatives, and the credible availability of political alternatives.”[4] During the developmental stages of FOI legislation in the late 1970’s, the Senate committee reported that the significance of implementing FOI laws was to ensure that individuals have access to what information the government may have and to have the capacity to correct what they consider to be misleading; in doing so, it will enhance the transparency of the government and ultimately a community better informed can participate democratically in a more effective manner.”[5] Thus, the Freedom of Information Act 1982, an “Act to give to members of the public rights of access to official documents of the Government of the Commonwealth and of its agencies”[6] was put to force.

Whilst initially accessible, over time the administrative process became problematic and overwhelmed, particularly attributable to compliance. Accordingly, it was recommended by the ALRC[7] that a new statutory position of an FOI Commissioner to act as an “independent person to monitor and promote the FOI Act”[8] should function to ensure compliance with the FOI Act and to raise the profile of the agency to the public through the improvement of the decision-making process. At the time there existed no independent person committed to act and contribute to resolving any difficulties that the agency experienced. Thus in 2010 the freedom of information reforms were implemented by the Australian government particularly concerning the Freedom of Information Act 1982 (FOI Act) and among those reforms included the appointment of the Australian Information Commissioner supported by statutory officers, namely the Privacy Commissioner and the Freedom of Information Commissioner, both appointing Mr. Timothy Pilgrim and Dr. James Popple for a term of five years.[9] Appeals for any rejected FOI claims that previously were dealt by the Administration Appeals Tribunal (AAT) and were in addition an expensive and lengthy process can now be made directly to the Commissioner that ultimately reduced the backlog and turnaround times. It will additionally aid agency compliance, whereby “[t]he reported cost attributable to agency compliance with the FOI Act was $41.719m, an increase of 14.9% on the previous year.”[10]

However, in the budget release of 2014-2015, the Abbott government withdrew the funds necessary to maintain the OAIC with the intention of disbanding the agency by the 31 December 2014. This was challenged by parliament since legislation with the intent of abolishing OAIC was not passed and consequently funds contributing to the agency were partially reinstated in the 2015-2016 budget. The initial objective was to transfer functions over to the Attorney-General Department and the Commonwealth Ombudsman who were already enabled with the powers to exercise the same powers of the OAIC.[11] This is where the controversy lies, that without the approval of parliament for this decision, it has in point of fact exposed a deficit amid the separation of powers and the function of the executive branch of government. The withdrawal of funding and the intent to legislate the abolishment of the OAIC nevertheless appears to be a practice implemented previously. In September 2013, the Climate Commission funding was removed by the Abbott budgetary changes prior to the implementation of its abolishment by parliament.[12] This confirms that the process of abolishing depends ultimately by parliament to be sure but the progression by procedurally defunding prior to any legislative changes confirms that there exists a rather discomforting executive system that stands on a thin line between the required separation of powers.  The doctrine of the separation of powers is a concept that ensures accountability and strengthens the checks and balances through the constitution necessary to ensure a fair and just governance of citizens. Simplified, the legislature enacts, executive applies and the judiciary interprets the law and since the rigidity of the body of rules once enforced is binding, therein requires the appropriate checks that ensure the law is beneficial to society as constitutionally implied, to prohibit and regulate to the effect of protecting and enabling Australian citizens and for the “peace, order, and good government of the Commonwealth.”[13]

Thus, to what extent does the removal of a regulator and a specialist low-cost review body undercut the benefits of the 2010 reforms to the Commonwealth FOI regime? The difficulties experienced by the commissioners due to budget cuts is perhaps sufficient enough to show the difficulties they experience performing the key functions of the agency, particularly with the effectiveness that it previously achieved. This is no doubt the reasons behind liberal government’ intent to close down the Commission, since the commissioners have been successful in a very short space of time in changing the structure and processes that have simplified accessibility to Australians and facilitated transparency as the original 1982 FOI Act had purposed. For instance, a strong emphasis on interagency networking all of which are subjected to the act and publications used as part of its information policy was resourcefully published and built, working on reforms implemented viz. the publication of information, “including information about what the agency does and why it does it.”[14] In addition, the resolution of complaints that would otherwise remained fixed in a backlog of lengthy and expensive was significantly questioned and ultimately reduced allowing public access to information that would have remained locked in a loophole. The costs involved to appeal decisions particularly related to public interest cases prohibit the rights of many due to their incapacity to financially afford the associated costs. A recent and landmark decision viz., the ruling in Bare v Independent Broad-based Anti-Corruption Commission exposed this problem, whereby the Supreme Court of Victoria granted a protective cost order that limited the costs of Nassir Bare, a 17 year old Ethiopian man who was assaulted by police.[15] Mr. Bare sought his right to have an independent body from the Victoria Police – the distrust that a fair and equitable assessment is clear since Mr. Bare himself was assaulted leaving chipped teeth and cuts along his jaw and thus breaching Section 38(1) of the Victorian Charter of Human Rights and Responsibilities – and when consulting the IBAC, the latter deciding not to investigate the claim. Accordingly, public interest is tested and determined when public interest substantially outweighs the entity in question[16] and the court therefore ruled that costs associated with the case do not exceed a maximum of $5000 to allow Mr. Bare to continue with the proceedings.

The costs associated with FOI cases vis-à-vis the principle of the right to freely access information by public bodies establishes a reluctance by a significant portion of those attempting to access information and thus limits or excludes the disclosure of information. A report by the Australian Information Commissioner Prof. John McMillan highlighted the issues related to the scale of charges and the required simplification of its framework.[17] That is to say that to prevent burdens reaching to an unmanageable state, limitations to accessing documents is applied through both the ambiguous practical refusal mechanism under the former ss 24[18] of the FOI Act, along with the power to impose charges.[19] While it is clear that either a full or partial waiver of associated charges for those experiencing financial hardship are taken into account, what is considered ‘financial hardship’ indeed, what is considered ‘public interest’ itself required a more thorough definition to assist agencies with determining on a case by case basis the exemption of applicable fees.[20] The success of the commissioners indeed has caused wide-eyed nervousness amongst more than one quarter in the liberal camp, no doubt the reasons behind the attempt to shut them down as abruptly as they intended. What exactly is it that they have to hide that they sit in trepidation that disclosure of information on matters of public importance is now becoming more efficient? Are the tests that facilitate transparency going to be too transparent?

[1] §61 Australian Constitution, to execute and maintain the constitution and the laws
[2] Sonam Samat. “Visceral Targeting: Using Personalized Face Composites for Implicitly Targeted Marketing” 11 October, 2013.
[3] ARLC 77, 2.2
[4] Sylvia Chan, Liberalism, Democracy and Development, Cambridge University Press, (2002) 10
[5] ARLC 77
[6] The Freedom of Information Act 1982 (FOI Act)
[7] ARLC 77
[8] ARLC 77, 6.4
[9] Freedom of Information Amendment (Reform) Act 2010
[10] Dr James Popple, “Message from the Freedom of Information Commissioner” OAIC Annual Report 2011-2012
[11] Office of the Australian Information Commissioner PBS,  §1.1 p471
[12] Thomas J. Goreau, Ronal W. Larson, Joanna Campe, Geotherapy: Innovative Methods of Soil Fertility Restoration, Carbon Sequestration, and Reversing CO2 Increase, CRC Press (2014) 580
[13] The Australian Constitution, 1900 §52(i)
[14] Freedom of Information Amendment (Reform) Act 2010 (NO. 51, 2010) – Schedule 2: Division 1, §7A
[15] Bare v Independent Broad-based Anti-corruption Commission & Ors [2015] VSCA 197
[16] For instance, see Privacy Amendment (Private Sector) Bill 2000 (Cth) Part VI, §72: 2(b)
[17] Prof. John McMillan, Review of charges under the Freedom of Information Act 1982: Report to the Attorney-General, February 2012
[18] This is no longer applicable.
[19] Review of Freedom of Information Legislation: Submission to the Hawke Review, December 2012: Section 198
[20] Freedom of Information Act 1982 – ss11B

Business Law and Vicarious Liability

Business law is complex and international business law is even more convoluted. Definitions of terms such as ’employment’ itself is wholly ambiguous, thus making it difficult to ascertain what legal rights people have in the workplace both for employees and employers. Vicarious liability exposes this complexity. It is a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties as requested and entrusted to act on their behalf. As a legal term, vicarious liability confirms that employers are thus responsible for negligible acts pertaining to discrimination and harassment that occur within the workplace by supervisors and management, individual or group employees, and agencies and contract workers with the ambiguity of the latter certainly exposing the complexity of the subject. It is complicated as an Australian legal doctrine primarily because of the absence of a clear and distinct definition vis-à-vis the various legislative formulations and the broad scope utilised by Australian federal, state and territory jurisdictions along with a culmination of common law interpretations. In addition to this complication, civil cases particularly pertaining to discrimination rarely reach the court due to the associated costs of such litigation and tend to be resolved prior through conciliation.

Employers must ensure that they have taken reasonable steps to demonstrate their commitment to the prevention of any form of discrimination and harassment as required by both Victorian and Federal legislation to prevent liability claims made against them, the liability itself used as a deterred to prevent human rights abuses. Whilst vicarious liability is customarily applied using judicial precedents rather than relying solely on legislation, in some cases particularly relating to sexual harassment the interaction with other provisions can effect and ultimately lead to an incongruous result, for instance in Jones v Tower Boot Co Ltd that exposes the necessary reach of vicarious liability – where an employee commits a serious act of sexual harassment though off-duty and thus appears that the employer is less likely to be liable as a consequence – in addition to claimants selecting one jurisdiction to reduce this probability of an absurd conclusion. The custom to utilise judicial precedents and thus apply the ‘Golden Rule’ of law, namely, to ensure that courts take a purposive statutory approach by appreciating the aim and purpose of the law and thus apply a fluid and flexible method favouring justice for the people, is in effect the reason for maintaining the broad and thus ambiguous definition of vicarious liability.

In order to initiate a better understanding of the subject, it is vital to establish an introduction on the scope of and interactions between legislations within the limitation of a non-exhaustive blog post, thus a brief account of anti-discrimination, human rights and industrial laws. Thus to begin, what exactly constitutes discrimination? In part two of the Equal Opportunity Act 2010 (Vic), discrimination is defined as, “direct or indirect discrimination on the basis of an attribute.”[1] Direct discrimination is clearly purposed to treat an individual discriminately based on any of the attributes, whilst indirect discrimination occurs when a condition, practice or any such imposition that is likely to result or have an effect on an individual that disadvantages them due to an attribute.[2] These attributes include age, sex, disability, race and religion amongst others.[3] Discrimination can go even further, such as an individual’ past or intellectual capacity [too smart, not smart enough] or other physical attributes etc &c. As employers themselves must ensure that they do not breach their obligations as set by the law and reiterating the previously mentioned Golden Rule, namely that the law has be established to protect the rights of citizens and democratic principles in general, the scope of vicarious liability sits under the umbrella of human rights.

Generally, the scope of industrial laws fails to afford the protections offered by established anti-discrimination laws. In Victoria, this would include the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Racial and Religious Tolerance Act 2001 (Vic) along with the Equal Opportunity Act 2010 (Vic). In addition, a complainant must select which jurisdiction – namely State or Federal – they wish to pursue the proceedings. Under section twelve of the Age Discrimination Act 2004 (Cth) it states that a person is not entitled to institute a proceeding if a law relating to discrimination is dealt with by the State of Territory,[4] thus a complaint can be lodged at the statutory commission within their state jurisdiction; however if so, they cannot proceed the complaint to federal anti-discrimination laws and jurisdiction. What that means is that if a complainant initiates a case under Victorian anti-discrimination law, they are not permitted to withdraw and apply for a recourse under Commonwealth anti-discrimination laws. Similar requirements are stated in other legislations,[5] thus confirming that if someone has already made a complaint under Victorian legislation is therefore unable to commence proceedings at federal level. Nevertheless, there are differences between state and federal anti-discrimination laws – whilst minor – can impact on the application and operation of the law, as a consequence the complainant can initiate and select which jurisdiction they would prefer the proceedings to fall under (dependant on the scope and details of the claim made against the employer). While the Equal Opportunity Act 2010 (Vic) functions similarly to federal anti-discrimination law, an example of these differences can be seen between the Disability Discrimination Act 1992 (Cth) that states “circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments”[6] obligations of which render a difference to the Equal Opportunity Act 2010 (Vic).

To continue further and assist with the amplification of pre-existing knowledge hidden in the corners of my mind, what exactly is vicarious liability? According to the Equal Opportunity Act 2010, vicarious liability is a person or agent engaging in conduct that contravenes discrimination as described earlier along with sexual harassment regulations as prohibited by the act.[7] Sexual harassment is defined as an unwelcome sexual advance or requests for sexual favours along with conduct of a sexual nature that offends, humiliates or intimidates.[8] In order to assess whether it is a vicarious liability claim, the negligible behaviour must have occurred during employment in addition to whether the employer has failed to take reasonable steps to prevent such contravention of the abovementioned.[9] “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[10] In addition, vicarious liability holds a broader function, namely that the legislative obligations and requirements by employers works as a preventative measure or deterrent to reduce risk of harm against an employee. The ambiguity of vicarious liability lies in understanding the definition of an employee and of even the period during which one is employed. As said by CJ Gleeson, “Lord Wilberforce made the point that to describe a person as the agent of another, in this context, is to express a conclusion that vicarious liability exists, rather than to state a reason for such a conclusion. Nevertheless, some judges refer to agency as a criterion of liability, similar to employment. If that is to be done, it is necessary to be more particular as to what is meant.”[11]

This is clearly observable when ascertaining the difference between a contractor and an employee. While it is generally viewed that independent contractors that are assigned employment carry out the required duties under the principle that they are in business for themselves and as such employers are not held vicariously liable, this has been proven not to be an absolute principle and there are instances in which the employer is deemed responsible for the negligent acts by independent contactors. In Sweeney V Boylan Nominees[12] the High Court rejected the vicarious claim made against the respondent for an injury against the appellant, who had entered a service station owned by Boylan Nominees and opened a refrigerator door that was not correctly serviced by an independent contractor that resulted in injury. Initially, this area of tort law held an employer to be liable for the tortuous acts of an employee but not a contractor as cited in Quarman v Burnett (1840)[13] however as continuous employment conditions and changes within the Australian labour market occur, the concept of contractors and vicarious liability challenges the meaning of what it is to be considered as an employee. Changes to interpreting the relationship between employer and contractor utilising the control test method – namely the attempt to ascertain the degree of control an employer has over a contractor – has also developed in preference for an analysis of the totality of the relationship.[14]

This test of ascertaining the status of an employee in contrasted in the case of Hollis v Vabu[15] that applies indicators which overall ascertain the actual relationship rather than focusing solely on the obligations as required by the contract itself. The plaintiff, a cyclist who was injured in a collision with a contractor that had the defendants’ name of Vabu visible during the accident brought to light the problem regarding the view that employers of independent contractors are not vicariously liable. The high court case thus attempted to clarify the issues respective of what a relationship entails with respect to employers and vicarious liability. As said, “[t]he system which was operated thereunder and the work practices imposed by  Vabu  go to establishing ‘the totality of the relationship’ between the parties; it is this which is to be considered.”[16] Similarly, in Deatons Pty Ltd v Flew, during an altercation at a hotel, the plaintiff was struck in the face with a glass of beer that the barmaid threw following his abuse toward her during an intoxicated scene.[17] As stated, “[a]n employer is liable for the act of his servant only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to this employment.”[18] The case of Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia[19] was mentioned by Justice Kirby in light of the fact that the employer was vicariously liable for the negligence of the independent contractor since the latter was a representative or agent of the employer since he was wearing the uniform.[20] Whilst the absence of a clear distinction that defines the differences between an employee and an independent contractor clearly arouses complications, Justice Bromberg in On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation[21] discussed the ‘totality approach’ that examines the question, stating;

“Viewed as a “practical matter”:

(i) is the person performing the work an entrepreneur who owns and operates a business; and,
(ii) in performing the work, is that person working in and for that person’s business as a representative of that business and not of the business receiving the work?

If the answer to that question is yes, in the performance of that particular work, the person is likely to be an independent contractor. If no, then the person is likely to be an employee.”[22]

The ‘entrepreneur test’ viewed in a practical manner purports that an independent contractor as a representative can be considered an employee.[23] As mentioned by Justice Kirby in Northern Sandblasting Pty Ltd v Harris, several areas still remain unclear and further analysis on focal points such as non-delegable duty, the retreat from the control test and the increasing use of independent contractors due to changing social conditions requires more coherency.[24] Nevertheless, an independent contractor is advancing the interests of the employer and therefore can be considered representative of the employee and liable accordingly. Thus, attempting to ascertain whether an employer is vicariously liable for the negligent behaviour of independent contractors requires the analysis of the totality of indicators as part of a weighting process, considering whether there are clear benefits for the employer, whether the independent contractor is a representative of the entrepreneur, the terms of the contract ect. &c., until a formulation of the relationship can be ascertained. As was clarified in Sweeney V Boylan Nominees, “Mr. Comninos was not required to accept jobs from Boylan, did not wear a Boylan uniform, was not based on a Boylan premises and invoiced Boylan for the hours of work he performed.”[25]

Liability does not necessarily require geographical or time-related specificity, for instance at the location of the employment or during working hours. In South Pacific Resort Hotels Pty Ltd v Trainor[26], Ms. Trainor was employed at a hotel in Norfolk Island and consequently had a part of the building arranged for the optional living quarters of employees. She had experienced sexual harassment from a fellow employee at the premises whilst both were off-duty and the court nonetheless found the employer vicariously liable since the premises itself was built for the purpose of their employment and the conditions and environment of the building therein allowed for the conduct to occur. “It [vicarious liability] is not premised on any culpable act or omission on the part of the employer; an employer who is not at personal fault is made legally answerable for the fault of his employee. It is best understood as a loss-distribution device.”[27] Exploring the concept of vicarious liability under both Federal and Victorian anti-discrimination legislation, employers can be responsible for the acts made by employees including management, agencies, contract workers among others as long as it is in connection with a person’ employment and does not necessarily require being on or within a specific locale or premises of the employer or within working hours. In Leslie v Graham,[28] Ms. Leslie was subjected to sexual harassment by Mr. [Lincoln] Graham at an apartment outside of working hours and following the situation she was unfairly dismissed by her employer Roger Graham and Associates – with Roger Graham being the father of Mr. Lincoln Graham. The line that separates an employer from the conduct and behaviour of employees or contractors clearly becomes obscured vis-à-vis sexual harassment cases. “Vicarious liability can more readily arise for trespassory torts such as sexual assault, based on a close connection between the employment and the tortious act in question.”[33] Confusion is further amplified when attempting to ascertain the vicarious liability of employers outside of working hours. In the Sex Discrimination Act 1999 (Cth)[34] whereby vicarious liability does not apply when it is established that an employee or agent of a person, “took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph”[35].

The employers’ responsibility vis-à-vis vicarious liability is not solely a matter of where failure itself had occurred, but rather whether the employer had taken reasonable steps to ensure that attempts were made to practicably prevent breaches from occurring. In R v Commercial Industrial Construction Group Pty Ltd[37] CICG had breached health and safety regulations by failing to provide a working environment for its employees that was safe following Peter Bacon – site manager – who had asked labourers to perform unsafe duties that resulted in an accident. As part of the plea mitigation, CICG stated that they had taken all the necessary steps to ensure that a safe working environment had been enforced, thus it was Peter Bacon as a supervisor who failed to comply Job Safety Analysis (JSA) requirements. This was rejected in court, whereby, “[w]hen the employee in question is the person with supervisory responsibilities, including responsibility for ensuring safety at the site, the gravity of the company’s breach is increased, not reduced. It is difficult to understand how the company could have allowed someone with Bacon’s apparent indifference to risk to occupy such as position.”[38] It was concluded that it had not been the case for CICG by employing a site supervisor who failed to adhere to health and safety obligations and consequently behaved negligently. Similaraly, in Gama v Qantas Airways Ltd,[29] Mr. Gama was employed as a licensed aircraft mechanical engineer and who was subjected to racial slurs by co-workers in the presence of supervisors, the latter failing to take reasonable steps to stop the racist behaviour. On the contrary, Mr. Gama was further subjected to discrimination particularly related to his reporting requirements and any opportunity for promotion due to alleged systemic racial intolerance[30] in addition to injuries he sustained during the course of his employment that resulted in less favourable treatment. As a consequence, Qantas was found to be in breach of the Racial Discrimination Act 1975 (Cth)[31] and the Disability Discrimination Act 1992 (Cth), namely that it is “unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee’s disability, [d] by subjecting the employee to any other detriment,”[32] and as such vicariously liable particularly for the treatment he received by co-workers in the presence of supervisors.

Vicarious liability is not necessarily about whether an employer authorises tortious acts but rather about whether they are responsible for acts of negligence made by an agent they have employed and as such it is a requirement to ensure that legislation remains broad. Perhaps it is ambiguous to ensure that judges approach the subject on a case-by-case basis by examining the details regarding the nature of the employment. “Vicarious liability is the creation of many judges who have had different ideas of its justification or social policy, or no idea at all. Some judges may have extended the rule more widely, or confined it more narrowly than its true rationale would allow; yet the rationale, if we can discover it, will remain valid so far as it extends.”[39] It is nevertheless commonsensical to assume that should an employee engage in conduct that is deemed offensive outside of the contractual obligations as required by the employer – or “engage on a frolic of his (or her) own”[40] – then the employer cannot be held vicariously liable for such conduct. But should an employer see and fail to do anything about acts of negligence or harassment, then they are absolutely liable.

Comparatively, the legislative and common law processes that we have in place in Australia is certainly commendable when viewing the injustice of the legal systems in other nation-states around the world. It does not, however, change the fact that many employees unfortunately experience discriminate behaviour for personal attributes and ultimately such employers go unpunished.

Also see:

Scott v Davis (2000) 204 CLR 333
Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135.
Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29.

 

 

[1] Part 2, §7 Equal Opportunity Act 2010
[2] Part 2, §8-9 Equal Opportunity Act 2010
[3] Part 2, §6 Equal Opportunity Act 2010, “(a) age; (b) breastfeeding; (c) employment activity; (d) gender identity; (e) disability; (f) industrial activity; (g) lawful sexual activity; (h) marital status; (i) parental status or status as a carer; (j) physical features; (k) political belief or activity; (l) pregnancy; (m) race; (n) religious belief or activity; (o) sex; (p) sexual orientation; (q) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.”
[4] §12 Age Discrimination Act 2004 (Cth)
[5] §6A Racial Discrimination Act 1975 (Cth), §10 Sex Discrimination Act 1984 (Cth), §13 Disability Discrimination Act 1992 (Cth)
[6] §5(3) Disability Discrimination Act 1992 (Cth)
[7] §109 Equal Opportunity Act 2010
[8] §92 Equal Opportunity Act 2010
[9] §110 Equal Opportunity Act 2010
[10] Fleming, Law of Torts, 410
[11] Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
[12] Sweeney v Boylan Nominees Pty Ltd. (2006) 227 ALR 46; [2006] HCA 19.
[13] Quarman v Burnett (1840) 151 ER 509
[14] Stevens v Brodribb Sawmilling Company Pty Ltd 1 TLR 101 at 111
[15] Hollis v Vabu (2001) 207 CLR 21
[16] Ibid,. Also see Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 29.
[17] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 (12 December 1949) 2
[18] Ibid., 5
[19] Colonial Mutual Life Assurance Society LTD v Producers and Citizens Co-Operative Assurance Co of Australia (1931) 46 CLR 41
[20] Ibid.
[21] On Call Interpreters and Translators Agency Pty Ltd v the Commissioner of Taxation (No 3) [2011] FCA 366.
[22] Ibid., 208
[23] Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313; (1997) 146 ALR 572; (1997) 71 ALJR 1428 (14 August 1997)
[24] Ibid.
[25] Burnett, Jonathan — “Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees” [2007] SydLawRw 5; (2007) 29(1) Sydney Law Review 163
[26] [2005] FCAFC 130
[27] Barbara Harvey, John Marston, Cases and Commentary on Tort, Oxford University Press (2009) 572
[28] Leslie v Graham [2002] FCA,
[29] Gama v Qantas Airways Ltd (No 2) [2006] FMCA
[30] Christine Fougere, ‘Vicarious liability for race and disability discrimination in the workplace’, Law Society Journal, April (2007) 37
[31] §9 Disability Discrimination Act 1992 (Cth)
[32] §15(2)(d) of the Disability Discrimination Act 1992
[33] Rick Glofcheski, ‘A Frolic in the Law of Tort: Expanding the Scope of Employers’ Vicarious Liability’ (2004) 12 Tort Law Review 18, 1
[34] §106 Sex Discrimination Act 1984 (Cth)
[35] §106 (2) Sex Discrimination Act 1984 (Cth)
[36] Brook Hely, “Open all hours: The Reach of Vicarious Liability in ‘off-duty’ sexual harrassment complaints.”
[37] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
[38] Ibid., 43
[39] Glanville Williams, Vicarious Liability and the Master’s Indemnity, The Modern Law Review, 20:3, 220–235 (1957)
[40] Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733–4 (Diplock LJ), discussed in NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 535–6 [40]–[41] (Gleeson CJ), 614 [308] (Kirby J).

Multinational Corporations and International Crime

The criminal proceedings of the Nuremburg Trials following the atrocities of the Nazi regime’ genocidal violence against humanity strengthened an international understanding of the concept of complicity to violence and soon thereafter developed the international law of human rights. Leaders in the Nazi regime were prosecuted for crimes against humanity in a series of international trials that were divided into two primary groups, namely that of organisations and that of individuals.[1] The tribunal at Nuremberg in addition to charging the defendants with heinous crimes also charged some as conspirators, namely that of mens rea or the subjective criminal intention that indicates liability. At the time, the laws of conspiracy were utilised in the United States to tackle the growing trends of organised criminal behaviour, whereby “it is a useful one [the charge of conspiracy] to bring against a gang leader who does not himself blow the safe, kill the bank guard or drive the getaway car.”[2] Under the Control Council Law[3] of the International Military Tribunal in Nuremburg, conspiracy was considered to be crimes against peace,[4] which is planning in anticipation of committing such violations and remains the most controversial aspect of the proceedings. The question of responsibility and complicity to acts of gross human rights violations was further amplified when tribunals were established for the atrocities committed in Rwanda and the former Yugoslavia. While these cases have charged individuals and organisations for state-led oppression, violence and genocide, the problem with Multinational Enterprises working in foreign countries and their immunity due to limitations in international law has been raised to the fore as an important topic for discussion vis-a-vis international law.

The continuous changes to the expanding economic structure in a globalised world along with the broadening of knowledge viz., the long-term impact environmental and human rights abuses can have, processes that emphasise responsibility by multinational enterprises has gradually started to form in the international arena. This includes the developments of international obligations and processes that assist States – particularly vulnerable countries in the developing world that often experience negligent abuse from Multinational Corporations – to develop legislation that will protect them from potential abuse, along with the willingness of domestic courts to implement domestic laws on crimes committed internationally, such as the United State’ District Courts and the Aliens Tort Claims Act 1789. The Maastricht Guidelines is another and explains the obligations of the State to adhere to Economic, Social and Cultural Rights as explicated in the international covenant. The growing pressure from NGO’s and the poor reputation that multinational companies encounter also work as preventative measures to ensure compliance to international codes of business conduct and corporate behaviour. This includes the supply chain that multinational enterprises do business with or contractually hire, becoming vicariously liable for any violations of human rights perpetrated by entities with which it does business.

These violations can include poor labour standards, environmental damage and serious harm to the welfare of inhabitants from pollution, and complicity to serious oppression and violence from private contractors, the government or the military. Conversely, a multinational firm can play a vital role in the positive contribution to a State that can include employment and thus improve the capacity for communities to acquire   needed services, infrastructure and economic growth. Whilst I will try and attempt to broadly detail several areas of concern when discussing Multinational Enterprises [MNE’s], these being a brief analysis of existing laws and international covenants relating to international business and human rights; this is vital as it amplifies an understanding of the second area of concern, namely whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business. Delving through particular situations and cases, a brief comparative to existing, domestic tort procedures and laws such as the concept of vicarious liability and contract workers as I have discussed in previous posts, or command responsibility in martial courts, I will attempt to ascertain what corporate responsibility is and how the adoption of human rights principles can ensure sustainability and address the obligations as required by international covenants.

Corporate crime can involve economic, political and industrial failures leading to organisational decisions that can possibly affect not just the individual employee or employees, but also the broader community in general. From well known litigation cases against chemical companies guilty of both environmental and human rights abuses or pharmaceutical companies restricting access to life- saving medications, the topic of human rights and business responsibilities on a global scale is at the forefront of the international economic agenda, particularly since the capacity for multinational entities to commit serious crimes at a large scale can – in reverse – also be capable of effectively promoting and even safeguarding human rights. This is particularly the case for States in post-conflict situations or in an humanitarian emergency or crises that requires immediate assistance and support. It is for this reason the United Nations established the UN Guiding Principles on Business and Human Rights to remedy the abuses and the failure of multinational corporations adhering to the standards as required by international human rights law. The preamble to the Universal Declaration of Human Rights, which was established following the atrocities committed during World War Two and that illustrates a global commitment to the inalienable rights of humankind, states that, “[w]hereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.”[5] All state actors and by extension multinational firms that agree to support the integrity and dignity of the human person as espoused in the UNDHR are prohibited to breach the obligations articulated within the body of international human rights laws.

The legal protections required to enforce UN conventions remain dependent on domestic legal systems, and notwithstanding the many member states that have effectively implemented human rights law into domestic legislature, there remains many States that have failed to comply with the required obligations of international law. This collision between international and domestic human rights laws can be comparatively identified in Islamic countries that expose the inconsistencies between Sharia laws and the requisite universality of human rights and the sovereign equality of State actors. “The contentious nature of Sharia’s interpretation of individual rights and its arguable incompatibilities with modern paradigms of human rights law nevertheless have to take into account the historic inequities with which Islamic societies have operated.”[6] Accordingly, the foundational principles and obligations in the Guiding Principles on Business and Human Rights purports that States themselves must take appropriate steps to prevent abuse through the implementation of domestic legislation and policies.[7] While a plethora of resources have become available to promote such domestic changes, the protections afforded by legal rights is wholly reliant on their implementation into domestic law that adequately remedies the cooperation between state and non-state actors within the international arena opinio juris sive necessitatis.[8] Regarding the latter, relations at transnational level can be exemplified through mutual collaboration on the enforcement of anti-terrorism activities, further still and equally as intricate is state immunity and human rights.[9]

Nevertheless, the Organisation for Economic Co-operation and Development (OECD) have established guidelines specific to multinational enterprises[10] that promote responsible business conduct through appropriate stakeholder engagement models that heighten transparency of the activities of multinational organisations. Followed by the Declaration on International Investment and Multinational Enterprises, the recommendations themselves, whilst voluntary, attempt to ensure that companies adhere to human rights standards and combat fraudulent and criminal behaviour. The benefits that it can have on the economy of the State encourage social progress and thus contribute to positive domestic development. And what exactly is a multinational organisation? The OECD Guidelines does not contain a precise definition of a multinational enterprise and states that multinational companies may be private, state or both that coordinate and operate in more than one country.[11] In addition to the OECD, UN documents such as the Declaration on the Establishment of a New International Economic Order,[12] the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy[13] along with United Nations Set of Principles on Competition[14] each attempt to regulate and supervise the activities of transnational corporations. An ‘enterprise’ has been defined as “firms, partnerships, corporations, companies, other associations, natural or juridical persons, or any combination thereof, irrespective of the mode of creation or control or ownership, private or State, which are engaged in commercial activities, and includes their branches, subsidiaries, affiliates, or other entities directly or indirectly controlled by them.”[15] The purpose and incentive of the guidelines is to entice States regulate the behaviour of multinational entities with accountability mechanisms that legislate protections particularly through tort law that will safeguard against any potential abuses. For instance, the Australian government recently reached a compromise and passed a new Multinational Anti-Avoidance Law (MAAL) that requires multi-national companies in Australia to practice efficient financial and tax reporting publications to ensure better transparency in the prevention of tax fraud.[16]

 

Contracted to protect? DynCorp instead trafficked young girls in the Balkans.

 

However, as there remains no internationally enforceable remedy against potential multinational corruption and when considering the power of multinational enterprises’ particularly in the developing world or even failed States, national sovereignty becomes questionable and criminal acts such as bribery of public officials and human rights abuses become increasingly possible.[17] In Bosnia and Herzegovina, for instance, following the tragedy of war and violence in the region, Dyncorp Enterprise – private security contractors – had staff responsible for the rape and trafficking of girls as young as twelve years of age.[18] Whistleblower Kathryn Bolkovac, who was deployed on a peacekeeping mission and who uncovered the scandal was instead threatened and finally dismissed, a case of unfair dismissal confirmed by the employment tribunal in the United Kingdom.[19] The staff responsible for committing the criminal act of human trafficking in the region were merely moved and have yet to be charged since any remedy to such crime is based on the State’ duty to protect, evidently an issue when considering failed states, along with little explanation on what the State – being the United States in the case of Dyncorp Enterpise – has in regulating such criminal behaviour. Pressuring states is not uncommon even in developed countries, with international tobacco corporations pursuing action against Australia in Philip Morris v Australia. Whilst it is clear Australia’ aim is to protect human health and safety through plain packaging as an investment procedure toward the reduction of preventable deaths,[20] Philip Morris Asia disputed the change by claiming breaches to provisions in trade agreements with Hong Kong. “The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.”[21]

Accordingly, along with the International Court of Justice and the World Trade Organisation’ Dispute Settlement function,   to place pressure to legislate domestic human rights avenues such as sanctions and – certainly dependent on the circumstances of the State in question – military force are used as coercive methods to prompt pressure on the countries in question. The economic opportunity that multinational entities bring to States can be employed as part of this method to endorse sustainable development, defined as: “[d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs.”[22] If one considers the responsibility that MNC’s have as inadvertently contributing to human rights violations by supporting third-party organizations that commit such crimes, their capacity to ensure that their supply chain remains free from any such abuse would conversely promote human rights obligations. The reliance that some States have on MNC’s can opportune legal and procedural changes for the better. The attention to the global failures from MNC’s in developed countries have led to valuable growth in the dedication for goods and services that promote fair and equitable conditions. For instance, foods including coffee, chocolate and other produce that contain the Fairtrade logo are steadily being promoted as a method to advocate proper labour conditions in developing countries. This can be similarly seen in Fair Wear ensuring the apparel industry adopts similar trademark assurances for consumers who desire to purchase items of clothing in confidence that workers are not exploited along with ethical diamonds and gemstones purchased as a preventative measure against the violence and slavery in mines. After extensive campaigning and lobbying by Greenpeace and other environmental activists against tissue paper company Kimberly-Clark for clear cutting endangered forests,[23] the company has agreed to approach the acquisition of required materials utilising an environmentally sustainable approach. Inter-organisational empowerment programs where negotiations between NGOs and MNCs is developing significant changes to the not only the exploitative practices of the latter, but also develop sustainable standards that promote a commitment to human rights and environmental protection.[24]

However, as goods and services are becoming regulated, reliance on petroleum in the developed world and access to lifesaving medications through the pharmaceutical industry in the developing world still remains difficult to challenge with jurisdictional restrictions failing to impose accountability laws for any violations that may be perpetrated. However, domestic courts in the Australia, the UK and the USA have developed processes that allow them to accept international cases and in turn impose penalties and responsibilities for violations for acts committed on foreign soil.[25] The Aliens Tort Claims Act 1789 (ACTA) was established in the late eighteenth century to tackle the problem of pirates and granted non-US citizens the capability to bring a law suit to the US District courts for civil cases that may have occurred anywhere in the world by individuals or organisations that contravenes treaties the United States is a signatory of.[26] Dormant for over a century, Filártiga v. Peña-Irala[27] raised the statute to the fore; the landmark case found the Filártiga family suing former state official Américo Peña for the torture and violent death of Joelito Filártiga by Peña while they both lived in Paraguay.[28] The Filártiga family won the suit and found Peña had violated international human rights laws. The question of whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business may appear clear, however the circumstances and the scope of responsibilities in the international arena still remain convoluted. Whilst accountability mechanisms and guidelines as mentioned earlier do exist, depending on the State in question, enforceability is often reliant on existing domestic laws and agreements particularly relating to labour rights, environmental protection and other safety legislation. While the United States established the Aliens Torts Claim Act 1789 that allows domestic laws to be used as a remedy for extraterritorial abuses, including the recent tort case against Chocolate company Nestle. Global Exchange and several former child slaves brought a class action suit against Nestlé, Archer Daniels Midland and Cargill who sourced cocoa from the Ivory Coast in Africa where children who had been captured from Mali were enslaved on the plantation farms. It is alleged they had breached the Aliens Torts Claim Act 1789 with the United States Supreme Court confirming that the case had justifiable merit.[29] This comes after a report from Save the Children in Canada that purports that over 15,000 children from Mali were sold into slavery in the Ivory Coast,[30] in addition to UNICEF’ study that almost 200,000 children are trafficked yearly along the West Coast of Africa.[31] Accordingly, the company was aware of the use of children and instead offered financial assistance so as to source the cheapest cocoa and thus, by extension, should be held accountable for the slavery. This comes after the company itself agreed that forced labour was being used in Thailand with supply chain company Thai Union with which it does business for its Fancy Feast cat food product.[32] “A report commissioned by Nestle SA found that impoverished migrant workers in Thailand are sold or lured by false promises and forced to catch and process fish that ends up in the global food giant’s supply chain.”[33]

While Nestle had in fact admitted to their failure following the report they commission with company Verité – a business that attempt to ensure transparency in supply chain processes – which exposes the developments for MNC’ to internally become more behaviorally responsible, nevertheless the company itself is tainted with a history of human rights abuses being one of the most boycotted companies in the world.[34] During the 1980’s, Nestle was found to have promoted the use of baby formula in Africa over breastfeeding, the latter of which civil society groups encouraged due to evidence of better nutrition and antibodies present in the milk.[35] As a consequence, the socioeconomic conditions of mothers in developing countries who, being impoverished and thus the costs associated with purchasing the baby formula taking a large portion of the family’ income, mothers began to dilute the powder in order to stretch the use.[36] With no other information supplied to them other than the marketing that baby formula was better than breast milk, infant mortality in the region was exasperated particularly due to the poor sanitary conditions of the water used in the formula. This resulted in the World Health Organisation developing a Marketing Code,[37] whereby, “[r]ecognizing further that inappropriate feeding practices lead to infant malnutrition, morbidity and mortality in all countries, and that improper practices in the marketing of breast-milk substitutes and related products can contribute to these major public health problems.”[38] Sporting giant Nike, with an annual turnover of more than $US27 billion, became well known for being linked to deplorable labour conditions or ‘sweatshops’ throughout South East Asia and Latin America. Business magnate Phil Knight outsourcing the manufacturing of the apparel to countries that offered cheap labour and instead poured much of its financial resources toward the adoption of a strong marketing strategy.[39]

Thus the success of the business has been built on abysmal working conditions for many labourers in developing countries, earning notoriously low salaries [at about 20 cents per hour][40] where such transnational sourcing of cheap labour supplanting the opportunity for human rights abuses. While Filártiga v. Peña-Irala certainly paved the way for justice against human rights abuses, the problem of jurisdiction and the examination of liability is central to the problem of multinational enterprise’ and gross negligence. One of the primary issues being whether a multinational enterprise can be held responsible for private non-state perpetrators. In Kadic v. Karadžić[41] where Ms. Kadic filed a suit against Radovan Karadžić for rape camps in Bosnia, it was confirmed the district courts were willing vis-à-vis the Aliens Torts Claims Act 1789 to cover private, non-state actors.[42]

Taking a comparative approach to the question of who should bear the responsibility for violations of human rights perpetrated by entities with which it does business, the concept of vicarious liability – a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties to act on their behalf that I have previously discussed in a post here – can insist the responsibility of MNC’ supply chain management. As a legal term, vicarious liability ensures that employers are responsible for any negligible behaviour that occur within the workplace and not just by employees, but also agencies and contract workers. “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[43] It was generally viewed that independent contractors who are assigned specific duties for a company were in principle in business for themselves and thus responsible for any incident or damages that may occur during the contract, however the growth and ultimately changes to employment structures and processes prove employers are responsible for the negligent acts by independent contactors.[44] In Doe v Unicol Corp [45] it was confirmed that corporations can be held responsible for working in concert with state officials, whereby companies are not necessarily immune from the scope of international law.[46] The pipeline project in Burma under the management of Unicol Corp [Union Oil Company of California], where the plaintiffs whilst building off-shore drilling stations in the Andaman Sea intended to build a pipeline through the Tenasserim region of Burma into Thailand found the Myanmar military units or State Law and Order Restoration Council (SLORC) – hired to manage security during the project – for committing gross human rights violations against villagers in the region.[47] This included torture, rape, forced labour and forced relocation[48] where it was alleged that Unicol was aware of these acts of human rights violations and had the capacity to prevent or stop the atrocities.[49]

“According to plaintiffs, when Unocal and Total entered into the agreement by which SLORC undertook to clear the pipeline route and provide security for the pipeline, defendants knew or should have known that SLORC had a history of human rights abuses violative of customary international law, including the use of forced relocation and forced labor… [p]laintiffs assert, on information and belief, that defendants Unocal and Total   were aware of and benefitted from, and continue to be aware of and benefit from, the use of forced labor to support the Yadana gas pipeline project.”[50]

This reasoning is similarly seen in cases for alleged criminal behaviour by individuals in military courts vis-à-vis the doctrine of command responsibility, particularly the case of U.S Army Captain Ernest Medina in Vietnam. What has become notoriously known as the Mai Lai Massacre,[51] taking place in a hamlet in Southern Vietnam where over five hundred unarmed civilians – including women and children – were brutally murdered, raped and mutilated by US soldiers in one day of carnage,[52] only one court-martial conviction against Second Lieutenant William Laws Calley Jr. for ordering the murders of the civilians was made and even so, through a presidential pardon his life imprisonment was overturned to several years of house arrest.[53] Accordingly, Calley claimed that he was acting on orders given to him by Medina, who during the massacre chose not to intervene and was nevertheless acquitted of any crime during his trial.[54] While it is clear that the case of Mai Lai is violations of the laws and customs of war and can be constituted as war crimes and devastation not justifiable as necessary, the question of who is responsible for preventing, repressing or failing to take reasonable measures to prevent crimes against humanity, as is applicable in Rule 153 of Customary International Humanitarian Law: “Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.”[55] In the case of Doe v Unicol Corp, holding corporations liable for aiding and abetting crimes by applying international law, the courts utilised two ‘tests’ that attempted to ascertain liability, namely that of actus reus and mens rea,[56] whereby, “accountability for a certain harm because of objective (actus reus) and subjective (mens rea) criteria”[57] and to thus identify criminal responsibility. Whilst the scarcity of sources relating to the liability of aiding and abetting in international law, both actus reus defined as “the wrong act”[58] in Latin and is the actual physical act, along with mens rea or “a guilty mind” and the subjective mental state of mind have been utilised at the Nuremburg Trials and the International Criminal Tribunals for both the Former Yugoslavia (ICTY) and Rwanada (ICTR). Accordingly, the judgement of Prosecutor v. Anto Furundžija, it was stated that to establish actus reus, “the cases which follow indicate that in certain circumstances, aiding and abetting need not be tangible, but may consist of moral support or encouragement of the principles in their commission of the crime.”[59] That is, that the likelihood and extent of the crime indirectly increases in effect of their behaviour.

 

Exxon Mobil hired security forces that committed acts of torture and murder. Does that make them responsible?

 

In Doe v Exxon Mobil, a group of Indonesian villagers from Aceh filed a lawsuit against oil company Exxon Mobil Corporation where the plaintiffs held that the company had hired security forces that committed human rights abuses against members of the village including torture, kidnapping, arbitrary arrests and murder.[60] It is thus alleged that the company’ negligent hiring and supervising of the security forces carries responsibility since they indirectly facilitated the violence. A multinational enterprise’ purpose is to ‘advance their own economic interest’ and doing so with entities that perpetrate human rights violations expose their indirect contribution to negligence and thus by extension contributory to the harm suffered. Thus, the question is, how far does the scope of responsibility extends? As instantiated at the beginning, whilst we are aware of the rights of the human person, corresponding and equally as significant are our obligations.

It cannot be denied that particular MNC’s certainly have an influential capacity over governments, policies and politics in general. Fox News’ Rupert Murdoch, despite the notorious international phone hacking privacy breaches by News Corp, is an example of the power and influence an MNC can have with governments. The media mogul recently tweeted a series of comments regarding the Turkish elections, his controversial   relationship with the Erdogan government along with his acquired television and media rights in the country have raised concerns about his capacity to have an influence on social decision- making in the country. “Almost everywhere in the world, most of the media is still politically differentiated along with general political orientations.”[61] Whilst it is clear that media liberalisation is essential for democracy and thus by extension human rights, suspicions that the Turkish press had been infiltrated by centre- right political influence was solidified with the recent Gezi Park Protests in Istanbul, a story rarely mentioned on popular television broadcasters owned by Murdoch in Turkey during the tumult. The AKP in addition has attempted to strengthen legitimacy by showcasing popular domestic support and falsely representing themselves as significant actors of democracy, it is evident that media representation of the party is one-sided with Turkey becoming notorious for arresting journalists and restricting the independence of journalism and the media, social media becoming an expressive platform to expose the discontent displayed by the population. Notwithstanding the case against Nestlé, Archer Daniels Midland and Cargill, a plethora of other tort litigations have nevertheless been rejected under the Aliens Torts Claim Act 1789 due to forum non conveniens, whereby the legal system of the country in question is adequate to pursue the case independent of the United States. Yet, often the laws particularly of developing countries remain deficient particularly if the sovereignty or governance of the State remain dependent on the investment and thus coverage of the areas of potential abuse by MNC’s is often insufficient to merit legal action. With a yearly revenue of more than $US120Billion, petrochemical company Chevron Corporation is an example of how a multinational organisation plays an instrumental role in environmental destruction and   human rights abuses. Their   notoriety   is perhaps more prominent in Ecuador, whereby the subsidiary Texaco had dumped millions of gallons of toxic bi-products over several decades causing not only serious environmental contamination that has resulted in ocean acidification and producing the drastic global changes with global warming and other effects.[62] In addition, the indigenous communities were struck with terminal illness and death due to the poisonous corruption of the local water system. “The company dumped untreated crude oil into open and unlined pits, from which toxic chemicals then leached into water system and through the soil of village lands.”[63]

Litigation against the multinational company by a group of Ecuadorian citizens in 1993[64] and was later dismissed by the Federal Court almost a decade later due to forum non conveniens whereby the complaint could be adequately served in Ecuador.[65] A similar case against Union Carbide Corporation in India that found thousands killed or seriously injured for the leak of methyl isocyanate gas,[66] whereby the State District Court of New York dismissed the case purporting that India had an adequate forum to launch legal proceedings against the disreputable company. This raises the question of extra-territorial tort proceedings. In 2006, Chevron filed for an international arbitration claim at the Hague claiming that the Government of Ecuador violated a bilateral investment treaty with the United States,[67] purporting that the 2003 class action against the multinational in Ecuador had been corrupted by influencing the judiciary, with the arbitration panel ruling in favour of Chevron that requested the suspension any enforcement until compliance with an Interim Measures Order had been met.[68] Criminal proceedings are still underway at the International Criminal Court against CEO of Chevron[69] for ignoring the requirement to clean the toxic waste in the Amazon and while a tumultuous case at the Ecuadorian Supreme Court that imposed damages of almost $US10 Billion[70] against the company, blatant disregard of their responsibilities is clearly manifest even on their website that states: “Chevron is defending itself against false allegations that it is responsible for alleged environmental and social harms in the Amazon region of Ecuador.”[71]

Whilst I have tried to elucidate in different sections of this blog post relating to what type of enforcement mechanisms could be used for human rights violations, including domestic laws and better approaches between MNCs and NGOs that negotiate sustainable frameworks that safeguard human rights principles as applicable in international law, therein nevertheless exists obstacles to these enforcements. It is clear that the United Nations and other national and international bodies are focusing on more effective methods to reduce MNC crime, whereby in 2003 the U.N Sub-Commission on the Promotion and Protection of Human Rights implemented the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights that detailed business obligations and to a degree ensured clarity that businesses must ensure their obligations to human rights has been met. Prior to that, Kofi Annan whilst addressing the World Economic Forum proclaimed the Global Compact initiative that encouraged businesses to ensure the adoption of internal policies and procedures that ensured a sustainable approach to human rights. Combined efforts developed the draft norms that attempts to solidify business compliance in a legally binding set of principles and avoid MNCs from being complicit to human rights violations. Nevertheless, whilst these norms begin the process of developing into a binding treaty, organisations such as the International Organization of Employers opposed the draft norms.[72] In fact, hostilities to the framework as a remedy were rejected even by States including Australia, UK and the United States.[73] The guidelines themselves, as stated in the preface, “encourage the positive contributions that multinational enterprises can make to economic, environmental and social progress and to minimise the difficulties to which their various operations may give rise.” Whilst voluntary in character, the general principles and policies with a context of their global application, ensure not just sustainable development and supply chain responsibility, but also calls for the establishment of local capacity building procedures. Such encouragement could certainly have a long-term, normative impact particularly as a preventative measure against any social or environmental risks via the encouragement of ensuring they are combating any adverse practices that motivate corruption, violence and other abuses that impact on society and the environment. It is therefore foreseeable that the guiding principles may have a normative effect in resulting behavioural changes. This is followed with the recent adoption of resolution 26/9 on the 26th of June, 2014 that sought to develop working group on MNEs and other businesses to mandate internationally legally binding instrument that will officially regulate corporations inclusive of States and non- State and private actors. These negotiations are underway and it is clear that internationally enforceable mechanisms to ensure compliance to human rights norms – whilst yet to be achieved – nevertheless is certainly developing toward processes that places duties directly on not only States but also private, non- State entities and multinational corporations.

There are also other tactical advantages that can be utilised against MNC’s to place pressure for the adoption of internal policies and procedures that will result in an overall behavioural change that safeguards rights. The demands of consumers themselves are changing, with companies adopting the purchase of ethically sourced products, for instance the multinational company Starbucks who has adopted a sustainable strategy known as C.A.F.E [coffee and farmer equity] for ethically sourced coffee, tea and cocoa.[74] Additionally, the company also has ensured that farming communities linked in any way to their supply chain are managed by working closely with Conservation International, in addition to re-forestation projects.[75] Organisations like Conservation International and Amnesty International are adopting preventative strategies that build or strengthen relationships with MNC’s as well as developing frameworks76 that supplant compliance through collaboration. In addition, the implementation of sanctions to pressure States to ensure compliance to human rights has also been an effective method that promotes change.

“Sanctions imposed in the past, such as those imposed during WWII, the trade and financial sanctions against China, the Iran hostage sanctions, and the ongoing Iraqi sanctions, have been very effective means of achieving well- defined foreign policy objectives. Whether imposed for such broad policy reasons or in response to specific human rights concerns, sanctions usually, and perhaps inevitably, involve an immediate human cost within the target state. Short of abandoning sanctions as foreign policy tools, however, there is probably no practical way to ensure that sanctions both narrowly affect only the targeted state actors and still remain effective.”

However, sanctions can also work in reverse. In 2011, France began a process of approving of a Bill that would recognise the acts committed during the last phase of the Ottoman Empire prior to its dissolution against the ethnic Armenians as ‘genocide’ where more than 1.5 million died during a process of ethnic cleansing, an accusation the Turkish government staunchly opposes.[77] In response to the potential legislation, Turkey applied numerous sanctions particularly relating to trade agreements and reprisals against multinational entities located in Turkey from France that it is assumed the potential law was struck down due to the dwindling relationship between both States.[78] Whatever the case is, it appears that at this very moment, international law is ineffective in controlling the free-reign that multinational corporations enjoy and the only real preventative measure is the effects civil society can employ through boycotting sales of the products that they make or purchase through the international supply chain. This would mean that “hippies” who care about our environment and human rights activists that have fought corrupt companies by exposing such atrocities are in effect the champions of change as in doing so, Fair Trade products have come to fruition among many more. Thus the biggest change possible is by stopping the use of products that are damaging communities and the environment in developing countries by the people spending the money in countries like mine; we all have the blood on our hands and thus it is all our responsibility.

 

1 George Ginsburgs and Vladimir Nikolaevich Kudriavtsev, The Nuremberg Trial and International Law, Martinus Nijhoff Publishers (1990) 62
2 Ibid., 64
3 Nuremberg Trials Final Report Appendix D, Article II of the Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity
4 Juliet Okoth, The Crime of Conspiracy in International Criminal Law, Springer (2014) 94
5 Universal Declaration of Human Rights (1948). Also see Vienna Declaration and Programme of Action (1993).
6 Javaid Rehman and Susan Breau, Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices, Brill (2007) 14. In Article 5 of the Vienna Declaration, it states: “While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
7 §1(1) UN Guiding Principles on Business and Human Rights (2011)
8 Benedetto Conforti and Angelo Labella, Introduction to International Law, Martinus Nijhoff Publishers (2012) 33
9 See GFCC, Judgment of the Second Senate of 18 July 2005 – 2 BvR 2236/04 -paras. (1-203)
10 Organisation For Economic Co-operation and Development, Multinational Enterprises of the Organization for Economic Co-operation and Development (2008)
11 Ibid., 12
12 A/RES/S-6/3201 Declaration on the Establishment of a New International Economic Order. Also   see 3202 (S-VI) Programme of Action on the Establishment of a New International Economic Order (1974)
13   International Labour Organisation, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (2014)
14 United Nations Set of Principles and Rules on Competition: The Set of Multilaterally Agreed Equitable Principles   and Rules for the Control of Restrictive Business Practices TD/RBP/CONF/10/Rev.2 (2000)
15 Ibid.
16 Tax Laws Amendment (Tax Integrity Multinational Anti-Avoidance Law) Bill 2015, Exposure Draft Explanatory Materia. See: http://www.treasury.gov.au/~/media/Treasury/Consultations%20and%20Reviews/Consultations/2015/Tax%20Integrity%20Law/Key%20Documents/PDF/EM_Tax_Integrity_Multinational_Anti-avoidance_Law.ashx
17 It is for this reason that legislation such as Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) was developed.
18 Carissa A. Rarick, “Fighting War and Furthering Slavery: The Alarming Truth About Private Military Firms and the Solution to End Their Involvement in Human Sex Trafficking,” Journal of Global Justice and Public Policy [Vol. 2/65]
19 Human Rights Watch, ‘Bosnia and Herzegovina Hopes Betrayed: Trafficking of Woman and Girls to Bosnia and Herzegovina for Forced Prostitution’ [Vol 14:9] 55
20   In addition, the WTO   Dispute Settlement Body received five primary complaints from Honduras, Indonesia, Cuba, Ukraine and the   Dominican Republic with an excess of 40 third-party complaints, the ruling expected to be finalized later this year.
21   §44 Australia’s Response to the Notice of Arbitration, Under the 2010 Arbitration Rules of the United Nations Commission on International Trade Law
22 Report of the World Commission on Environment and Development: Our Common Future. Document A/42/427
23 Mandy Haggith, Paper Trails: From Trees to Trash: The True Cost of Paper, Random House (2008) 46
24   Michael Yaziji and Jonathan Doh, NGOs and Corporations: Conflict and Collaboration, Cambridge University Press (2009) 151
25   Joseph, Sarah, ‘An Overview of the Human Rights Accountability of Multinational Enterprises’, in Kamminga, Menno T, and Zia-Zarifi Saman (eds), Liability of Multinational Corporations under International Law (Kluwer Law International, The Hague 2000) 78. Also see Menno Kamminga, ‘Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC,’ The EU and Human Rights OUP (2000) 565
26     Muzaffer   Eroglu,   Multinational   Enterprises   and   Tort   Liabilities:   An Interdisciplinary and Comparative Examination, Edward Elgar Publishing, 1 Jan. 2008, 124
27 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
28 Op. Cit., Eroglu 124
29 The United States ratified the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. See Michael Koebele, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law Through US Torts Law, Martinus Nijhoff Publishers (2009) 139.
30 Theodore Harney MacDonald, The Global Human Right to Health: Dream Or Possibility? Radcliff Publishing (2007) 89
31 Jonathan Cohen, Togo, Borderline Slavery: Child Trafficking in Togo Human Rights Watch (2003) 8
32 The Associated Press, Fishermen Slaves: Human Trafficking and the Seafood We Eat, Mango Media Inc., (2016)
33 Ibid.
34 Anna Hutchens, Changing Big Business: The Globalisation of the Fair Trade Movement, Edward Elgar Publishing (2009) 77
35 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
36 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
37 International Code of Marketing of Breast-milk Substitutes, World Health Organization, Geneva, 1981
38 Ibid.
39 K. Aswathappa, International Human Resource Management, Tata McGraw- Hill Education (2007) 293
40 Andrew Delios and Paul W. Beamish, International Business: an Asia Pacific Perspective, Pearson/Prentice Hall (2004) 300
41 Kadic v. Karadžić 70 F.3d 232 (1995).
42 Ibid.
43 John G. Fleming, An Introduction to the Law of Torts, Clarendon Press (1985) 410
44 Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
45 Doe v. Unocal, 395 F.3d 932
46 Op. Cit., Eroglu, 124
47   Sarah Joseph, Corporations and Transnational Human Rights Litigation, Bloomsbury Publishing (2004) 69
48 Daniel Aguirre, The Human Right to Development in a Globalized World, Ashgate Publishing, Ltd., (2008) 259
49 Doe v. Unocal, 963 F.Supp.880 (C.D Cal. 1997)
50 Ibid.
51 William Thomas Allison, My Lai: An American Atrocity in the Vietnam War, JHU Press (2012) 43
52 Carl Boggs, Masters of War: Militarism and Blowback in the Era of American Empire, Routledge (2013) 209
53 Valerie Plaza, American Mass Murderers (2015) 84
54 United States v. Captain Ernest L. Medina (1971)
55 Rule   153,   Customary   International   Humanitarian   Law,   “Command Responsibility for Failure to Prevent, Repress or Report War Crimes”
56 John Cheverie, United States Court Finds Unocal May Be Liable For Aiding and Abetting Human Rights Abuses in Burma, Human Rights Brief (Vol 10:2) 2002
57 Kai Ambos, Treatise on International Criminal Law: Volume 1, OUP Oxford, (2013) 100
58 Beth Walston-Dunham, Introduction to Law, Cengage Learning (2011)
59 §199 Furundžija (IT-95-17/1)
60   John G. Dale, Free Burma: Transnational Legal Action and Corporate Accountability, U of Minnesota Press (2011) 248
61 Rasit Kaya and Baris Cakmur, “Politics and the Mass Media in Turkey,” Turkish Studies, (Vol 11:4) 521-537, December 2010
62 Marylee Stephenson, The Galapagos Islands and Ecuador, 3rd Edition: Your Essential Handbook for Exploring Darwin’s Enchanted Islands, Mountaineers Books, 28 Sep. 2015
63 Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital, Cambridge University Press (2013) 141
64 Aguinda v. Texaco, Inc. 33 ELR 20010
65 Aguinda v. Texaco, Inc. 33 ELR 20010
66 Malcolm J Rogge, Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in Re: Union Carbide, Alfaro, Sequihua, and Aguinda, Texas International Law Journal, Texas International Law Journal [VOL. 36:299] 2001
67 Almut Schilling-Vacaflor, New Constitutionalism in Latin America: Promises and Practices, Routledge (2016)
68 They also held proceedings in a separate case claiming that Ecuador breached the Investment Agreement and the Settlement Agreement between Texaco and the State.
71 https://www.chevron.com/ecuador/
72 Criminal Justice in International Society By Willem de Lint, Marinella Marmo, Nerida Chazal, Routledge (2014) 238
73 Ibid.
74 Cheryl J. Baldwin, The 10 Principles of Food Industry Sustainability, John Wiley& Sons (2015) 29
75 Ibid.
76 Kinley, David; Joseph, Sarah — “Multinational corporations and human rights: questions about their relationship” [2002] AltLawJl 3; (2002) 27(1) Alternative Law Journal 7
77 Note that it is actually illegal in Turkey to claim that there ever was an Armenian Genocide. The Bill itself in France would have made it a criminal offence if one denied that there was a genocide.
78 Evangelia Axiarlis, Political Islam and the Secular State in Turkey: Democracy, Reform and the Justice and Development Party, .B.Tauris, (2014) 126

Moral Parenthood

There are moments where I become so overwhelmed by the injustice that exists in our world, where I find myself sandwiched in the corner of my room trying to breath amidst the tears after reading about Du’a Khalil Aswad, a young Yazidi girl being stoned to death for false suspicions of a relationship with a Sunni boy, the intensity of this subjective pain causing me to crush my fingers deep into the palm of my hands as I think about how witnesses can film rather than fight to stop the injustice. What would possess people to think that murder of a child is justifiable? Then I read about the commercial exploitation of children both sexually and for labour with our most vulnerable including refugee and migrant children, those homeless and impoverished among other demographic and high-risk factors and where the use of internet technology enabling these vicious predators to recruit and sell children. The shocking reality that the Global Report on Trafficking in Persons shows that in some parts of the world, there is a large proportion of women as traffickers.[1] While we often assume that parenthood is absolute in its protection and love toward children, social and environmental conditions as shown by the endemic proportions of global infanticide clearly prove that this is not the case for our vulnerable minors. As I am currently in the process of possibly becoming a permanent carer of a small child here in Australia, where I will become a guardian to a child who would otherwise have no security or stability on a permanent basis due to difficulties with their birth family. When asked how that differs from adoption where a child is legally considered as your child, the only difference is ownership.

The rights of a child is indeed a very complex framework that involves intricate questions relating to ownership, privacy and capacity that challenge the view that children are merely an independent choice within the private sphere of family and thus remain impenetrable from the jurisdiction of the law until they are legally of age. Indeed, privacy regulations are vital to ensure that each person enjoys the right to be protected from engaging in autonomous activities outside of public scrutiny and unauthorised intrusion, within reason. This includes ensuring that the state balances this privacy with security and the protection it largely affords to the public including intervention that safeguards the rights of our most vulnerable. While the rights of a child embodied in the United Nations Convention on the Rights of a Child (CRC) and the fifty-four articles therewith that lay the foundation exemplifying the importance of protecting children from harm and to lead a fulfilling life, it has come under scrutiny for its provisions being brazenly paternalistic that fail to address the autonomy and competence available to children. A necessary balance is required between children being vulnerable and dependent with autonomy and competence, child protection and advocacy with increased appreciation of a child’ ability to make decisions. This can be seen in the judicial system of Victoria (Australia) where children are enabled with the right to testimony in family law as well as other criminal and civil proceedings whereby to determine competency, judges factor in the age[2] and other determinable investigations such as whether the child understands the nature of being under oath[3] or give under special circumstances unsworn evidence.[4] Continued advocacy in Victoria to grant children stronger rights by taking a more flexible approach on a case-by-case basis that instead presumes a child as being capable until competency itself is questioned (rather than the other way around), which is slowly challenging the traditional, paternalistic approach.

Children being subject to rights imply them to be subjects to the law and an exploration of how the law can ensure the protection of these rights without abandoning their entitlement to play an active role viz., the assumption that they lack the autonomy needed to claim such rights must be reconsidered. Rather, their rights are parallel to that of an adult, but distinguished by a more sophisticated application. It is clear that competency and rights clearly differ and though a child according the UN Convention is a person who is under the age of 18 unless national laws state otherwise,[5] competency to provide evidence is fast becoming obtainable that challenges the socially constructed view that capacity is age related. It also challenges the theoretical approach. When an adult legally signs a contract, they are considered capable of understanding the binding nature that would enable them to adhere to the obligations set out within the contract. Social contract theorists such as John Locke argued that “children were in a temporary state of inequality because of their irrationality.”[6] As such, children cannot have rights because they lack the cognitive capacity that enables them to make rational choices. John Rawls states that, “it is sometimes thought that basic rights and liberties should vary with capacity, but justice as fairness denies this: provided the minimum for moral personality is satisfied, a person is owed all the guarantees of justice.”[7]

The largely incorrect opinion that children lack capacity deprives them of the chance to develop the intrinsic quality that is a natural part of human cognition, and having witnessed some parents and teachers fail to contribute to the development of reflective abilities by simply telling children how they should behave and what to think clearly is a pedagogical error, and in response children fail to ever learn to recognise their own ableness in decision making leading them to rely on the opinions of others even into adulthood.

What is this capacity for a moral personality? Jeremy Bentham has purported that people can only be afforded legal rights but moral rights is ‘nonsense on stilts’[8] and though it is true that there may be a complex theoretical underpinning to the concept, rights and freedoms have nevertheless become imbedded in our contemporary response to the external world. Rawls makes it clear that all human beings – save for a very distinct few who either from birth or accident have been deprived of this quality – contain the necessary attributes that would enable them with the quality of a moral personality, even if capacities vary. That is, though all people have varying capacities that enable an understanding and exercise of justice, they are still entitled to equal liberties. The exploration of children’ rights are indeed linked closely to the subject of capacity, where they are assumed unable and incompetent despite the presence of the faculty that is merely in its developmental stage. This immediate denial of self-determination reduces an adequate understanding of the broader responsibilities that influence and shape the pre-existing ability that enables capacity itself or as Rawls continues with, “[o]nly scattered individuals are without this capacity, or its realization to a minimum degree, and the failure to realize it is the consequence of unjust and impoverished social circumstances, or fortuitous contingencies.”[9] Capacity as a socially constructed and age-related concept could simply shut them off from the realisation of their own ability for self-determination.

When I find myself having conversations with some of the young children at the various primary schools I work in, their dispositions and attention immediately change when they realise that I am treating them as an individual, whereby they suddenly become conscious of their behaviour and of what they are saying. They are being heard. The largely incorrect opinion that children lack capacity deprives them of the chance to develop the intrinsic quality that is a natural part of human cognition, and having witnessed some parents and teachers fail to contribute to the development of reflective abilities by simply telling children how they should behave and what to think clearly is a pedagogical error, and in response children fail to epistemically ever learn to recognise their own ableness in decision making leading them to relying on the opinions of others even into adulthood.

While it is clear that we must ensure that we protect children from any violation of their rights, there is a shifting trend that children can be recognised as rights-holders and that the assessment of competency is leaning toward a better understanding of the nature of childhood and development. It is complex to say the least that there exists a problem of parental rights and ownership that can either undermine the rights of children or could depreciate the ability for a family to raise a child, but a balance itself needs to be reached that condones any act that will inhibit the development and education of a child while at the same time promote reflective practices and education that will give children the capacity to understand how to make decisions for themselves. It is what has been referred to as moral parenthood (rather than biological).[10] It is a recognition that challenges both the idea that a child is afforded rights solely by their biological parents that could quite easily been neglected or abused and by seeing children as having these rights would enforce both legally and socially moral attitudes that would shift the predisposition of thinking for a child rather than listening to a child. With adequate mechanisms in place, listening to them and speaking in their language to work out what they find important, to both consider and enable them the opportunity to express their point of view will provide them with the capacity to think independently, consciously and morally.

[1] UN Office on Drugs and Crime (UNODC), Global Report on Trafficking in Persons, 2014, available at: http://www.refworld.org/docid/5492a3d94.html %5Baccessed 10 June 2017]
[2] Evidence Act 1958 (Vic) – in Victoria, it is under the age of 14.
[3]  R v Braiser (1779) 1 Leach 199; Omychund v Barker (1744) 1 Atk 21.
[4] Evidence Act 1958 (Vic) s 23.
[5] Article 1 CRC
[6] Mhiari Cowden, Children’s Rights: From Philosophy to Policy, Springer (2016) 26
[7] John Rawls, A Theory of Justice, Harvard University Press (2009) 77
[8] See Jeremy Bentham, ‘Anarchical fallacies; being an examination of the Declaration of Rights issued during the French Revolution’ (1791)
[9] Op. Cit., Rawls.
[10] David Archard, Children: Rights and Childhood, Routledge, London (1993) 109

 

 

Exploitation of Syrian Women and Children: Refugee Law In Lebanon and Jordan

As of March 2017, key figures from the United Nations Office for the Coordination of Humanitarian Affairs estimates that more than 5 million refugees have fled Syria, with 6.3 million internally displaced and a total of over 13 million in need of urgent humanitarian assistance.[1] Turkey has accepted a large number of the refugees, hosting over 2.8 million refugees, comparably with Europe where less than 900,000 applicants since 2011 have applied for asylum, data retrieved from 37 European countries that provide UNHCR with monthly figures.[2] Additionally, countries such as Lebanon has taken in over 1 million and over 650,000 have fled to Jordan, two countries that have not signed the United Nations Convention Relating to the Status of Refugees adopted in 1951 and further still, the 1967 Protocol Relating to the Status of Refugees that extended the former boundaries that were initially limited to Europe so as to enable universal coverage. Article 1 of the 1951 Convention nevertheless transformed the international status and human rights of refugees by providing a single definition:

“As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[3]

Like many instruments that developed at the time, the convention strengthened principles particularly relating to the fundamental rights of refugees such as non-discrimination and particularly non-refoulement,[4] the latter where asylum seekers are forced to return back to a country where they there may be a strong likelihood of experiencing persecution in a number of various ways. It also reinforced the universality of international human rights law without exception to State provisions as well as prejudice toward race, religion or country of origin.

Nevertheless, there have been a number of concerns relating to the effectiveness of the Refugee Convention and its Protocol in managing the influx of refugees and demonstrated by the huge number of asylum seekers displaced from the Syrian War. Some of these failures have enabled discussions on reforming the instruments to deal with the crises of asylum seekers to suit the current economic and social conditions and to satisfactorily manage a system fraught with problems. One of these includes the convention’ failure to ameliorate new global changes to social, demographic and national environments that render it ineffective to adequately deal with the logistical, financial and humanitarian aspects of the influx of refugees. While taking a rights-based approach, both the refugee convention and the protocol fail to address the complexities of man-made catastrophes and the unique regional differences that causally play a role in these catastrophes. As such, it has been argued that a holistic approach is required to enable better considerations of regional and cultural attitudes that enhance a decisive clarity of the causes in order to measure, prevent and manage man-made disasters. It is clear, for instance, the dynamics of ISIS in the Middle East, the ramifications of the gulf-war, oil and water politics and the post-colonial economic hardships that have enabled destabilising political regimes demonstrate the necessity for a holistic approach specific to the Middle East.

In order to compare the possible effectiveness of a holistic approach to the concerns raised by the recent influx of Syrian refugees, development of a number of additional instruments that attempt to define the legal confusion on the status of a refugee in other regions have been adopted. In 1999, the Tampere Council – a special European Council meeting held in Tampere – attempted to improve changes to immigration as well as consolidate foreign and security policies through the opportunities that the Treaty of Amsterdam afforded. The Treaty of Amsterdam altered the former Treaty of Maastricht [where the development of supranational institutions such as the European Court of Justice was initiated] and includes a number of protocols and declarations that empowered the European Union to develop legislation that would effectively coordinate policies and procedures more effectively, along with strategies that would strengthen intergovernmental cooperation subject to protecting its own interests. Since then, there has been an ongoing development to improve legislative frameworks that recognise, for instance, the importance of the financial output during an influx of those seeking asylum and thus established the European Refugee Fund [ERF] that administers financial support to member countries to manage and resettle refugees and displaced persons.

Syrian children who have fled into Jordan and Lebanon are being illegally exploited and due to their status are forced into labour rather than schools; despite countries like Jordan being a signatory to the International Convention on the Rights of the Child. 

lebanon_over_70x_of_syrian_refugee_children_forced_into_labor.jpg_1718483346

Representatives that drafted the 1951 Convention also desired signatories to exceed the demands set out in the convention, thus it was not long after that the European Union developed The Qualification Directive.[5] This followed the Temporary Protection Directive[6] that was developed due to the poor management vis-à-vis violence in the former Yugoslavia that resulted in large numbers of displaced persons in the region and thus, under exceptional circumstances such as war, became a process to provide temporary protection. It sought to exemplify minimum standards for refugees, stateless persons or third-country nationals that required international protection and develop a common policy on asylum by advancing the Common European Asylum System Agency (EASO), as well as facilitate better cooperation between member states by improving protection and “affirming the principle of non-refoulement and ensuring that nobody is sent back to persecution.”[7] The Common European Asylum System guaranteed standards of protection where asylum seekers are treated fairly and with dignity. The Qualification Directive established a criterion that would qualify the minimum standards that confirms the status of a refugee and thus regulating the process that determines the granting of international protection. An act of persecution must be sufficiently serious that would violate human rights including act of physical, sexual and psychological or any disproportionate legal prosecution that would result in discriminatory prosecution.

And yet, with what appears to be a small number of refugees from Syria seeking asylum in Europe comparably to other States, none of these instruments have been put to use, on the contrary, it appears that there may either be a hesitation as the limited timeframe for providing asylum for a maximum of up to two years to Syrian refugees is not realistic in relation to the ongoing length of the war, or there is a hidden exclusivity to these instruments limited to the possibility of use in the event of a European catastrophe. UN High Commissioner for Refugees determined that the needs of the refugees require hefty financial support and pledged nine billion at the conference in London.[8] While financial support would enable countries experiencing an influx of refugees to manage the economic strain, it is clear that the ERF may still struggle to manage, whereby OCHA estimates that a total of $3.4billion dollars is required to fund a humanitarian response plan for the life-saving assistance to 13 million Syrians in need of urgent humanitarian support, funding that has only reached 11.3% of this required target.[9]

Other failures also include no guarantee that unaccompanied children will have access to legal representation, along with the absence of provisions that deal with Internally Displaced Persons (IDP), knowing that within in Syria there are 6.3million IDP’s that require urgent assistance. That is, the Convention does not “apply to those refugees who have a status equivalent to nationals in their country of asylum.”[10] It has been argued that the Convention should be reformulated to address these issues however the potential problem to removing and establishing a new convention is that it would still fail to address continuous regional changes that may impact on the development of even more disputes. For instance, the United Nations Committee on the Rights of the Child stated that States “shall not return to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child,”[11] and while they clarified the responsibilities of States to ensure how the assessment of this risk should be conducted, this risk is nevertheless open to interpretation. For instance, Suresh v Canada[12] questioned procedural fairness whereby even if a refugee is at risk being tortured, they can be deported to their homeland if they conversely a serious risk to Canadian security. Procedural fairness without the inclusion of assessing unaccompanied minors or other vulnerable groups including women who are pregnant or survivors of serious trauma that have developed serious mental health issues may lead to prejudicial outcomes.

Other global and regional instruments enacted to ensure adequate support for asylum seekers are effectively taking place can act as a catalyst to developing changes to the Middle East. In Africa, for instance, where a number of political and social instabilities have resulted in an influx of refugees, established the Organisation of African Unity and the Convention Governing the Specific Aspects of Refugee Problems in Africa[13] that attempted to ameliorate a stronger understanding of the legal or political aspects to refugee protection but specific to Africa. Together with the Cartagena Declaration on Refugees[14] in Latin-American, the protection of refugees within the instruments were extended to include a more demographically and culturally appropriate – thus holistic – approach to regional affairs that the Convention and its Protocol were unable to adequately compliment, thus enabling better responses to mass displacement. For instance, while the convention and the protocol are rights-based instruments, OAU Convention seeks to address humanitarian responses to mass influx of refugees by enabling its member States to legislate domestically in order to address and protect all those seeking asylum. It additionally clarified the differences between groups of refugees as a result of a disaster with individual refugees seeking protection.

The United Nations estimates Lebanon is housing 1.14 million Syrian refugees and not being party to the Refugee Convention and Protocol, Lebanese domestic laws that purport any person without legal documentation within its boundaries are considered illegal have left Syrian refugees without legal status. In fact, while Lebanon is constitutionally bound by customary law and other human rights obligations being a signatory to a number of human rights conventions,[15] not becoming party to the 1951 Convention or its following Protocol has left only a Memorandum of Understanding (MOU) with the UNHCR[16] as the only instrument to assist refugees coming from Syria. UNHCR has noted that even with the MOU protection remains notoriously difficult.[17] Domestic legislation in Lebanon governing refugees is extremely limited whereby Law of 1962 regulating the Entry and Stay of Foreigners in Lebanon and their Exit from the Country[18] fails to provide legal protection and other important human rights services for Syrian refugees. Unlike OAU Convention that treats individual and group assessments based on contingent situations such as fleeing war or other man made violence, the provisions of the 1962 law treat individual cases. “Any foreigners who is subject of pursuit or has been convicted for a political crime by a non-Lebanese authority or whose life or freedom is threatened because of political considerations may ask for political asylum.”[19] As such, Syrian refugees in Lebanon are without any legal protection and according to Article 32 of the 1962 Law, can be fined and even imprisoned as illegal entrants.[20] While the MOU signed between Lebanon and UNCHR enables the latter to ensure temporary residence permits are provided as a solution – albeit temporary – to the problem with Syrian refugees, the limited time (of a maximum of nine months) may not be estimative of the realistic timeframes necessary to support them pending the continued violence in Syria. Clarification of renewing residency permits remains ambiguous and any rights including seeking employment are extremely limited, if not non-existent and leaving refugees in an incredibly vulnerable position. This was further delayed when the Lebanese government requested that UNHCR suspend registrations of Syrian refugees in 2015.[21]

The image below exposes the horror of what happened to almost 75 Syrian women who fled the war and were tortured and forced into sexual slavery within ‘Chez Maurice’ in the Lebanese town of Jounieh. Notwithstanding the horrible men involved in this disgusting trafficking incident, it also shows the failure of the government to protect asylum seekers and why it is so important.

LEBANON-SYRIA-CONFLICT-PROSTITUTION-SOCIETY

While Lebanon has recently enacted changes to domestic legislation amid continued discussions relating to the status of refugees, in particular waiving fees for Syrian refugees fleeing the war [a charge of US$200 that was introduced in 2015], this unfortunately excludes a large number who were unable to register with UNHCR, almost half a million.[22] The impact of these failures in Lebanon can have devastating effects to the rights and protection of Syrian refugees since by having no legal status and being at risk of imprisonment, movements become restricted and in order to survive many refugees are becoming victims to exploitation. According to the final report on Syrian refugees in Lebanon by Freedom Fund, incidence of slavery and human trafficking is growing including child labour and marriage, sexual exploitation and forced labour[23] that clearly exemplifies why ratification of the 1951 Convention and its 1967 Protocol is necessary. In addition, children from families without residency permits in Lebanon are unable to obtain a formal education as well as access to healthcare for families including pregnant women whose children are at risk of statelessness. It is also clear that existing regulatory frameworks are modified along with domestic legislation protecting Syrian refugees from harm including exploitation and trafficking is afforded. Although Lebanon is constitutionally bound by the customary law principle of non-refoulement, recent talks between Lebanon and the Syrian opposition to return those seeking asylum – whereby Hezbollah stated that they have been mediating the possible return of refugees from the Arsal border to the Qalamoun region in Syria[24] – that begs the question of whether non- refoulement procedures are adequately adhered.

According to Amnesty International, while Jordan is hosting over 650,000 refugees, in mid-2016 it closed its borders that stranded over 75,000 Syrian refugees between the Syrian-Jordanian borders in the horrific al-Rukban and Hadalat refugee camps within desert conditions.[25] This is not a problem with Jordan alone, whereby Human Rights Watch has also reported shootings against Syrian refugees attempting to enter the country at Turkish borders. Whilst citing security concerns amid threats from ISIS, the strain that Jordan has experienced economically due to the lack of international aid has pressured the government to regulate occupation that only Jordanian citizens are allowed to work in, forcing asylum seekers toward illegal working conditions.[26] Jordan also signed an MOU with UNHCR that enabled recognition of refugee status for a duration of up to six to twelve months[27] but consideration of the massive influx of Syrian refugees was not adequately deliberated as domestic law similarly observe a case-by-case basis.[28] In addition to this, each of the individuals fleeing are required to have documentation, something that clearly may not always be possible considering the situation. Constitutionally, Jordan must adhere to international customary law on non-refoulment, where extradition of political refugees is prohibited.

With the surmounting difficulties along the borders of Lebanon and Jordan, the clarity and necessity of including internally displaced persons within the international framework becomes clear as millions of Syrian refugees are unable to flee. The United Nations– along with reaffirming – has called upon States such as Jordan and Lebanon to become party to the Convention.[29] Regarding the problem of stranded refugees along the Jordanian-Syrian border, comparatively the OAU Convention explicitly reaffirms that in the even where a member state may find it difficult to continue granting asylum it will appeal to other Member States of the OAU to assist in supporting them.[30] As such, the development of a similar regional instrument amongst Middle Eastern States that touch on relevant concerns specific to the demographics and culture would be an important step forward to strengthen a cohesive process for Syrian refugees to adequately manage man-made disasters as well as improve processes for countries such as Jordan and Lebanon to better protect asylum seekers. It will also ensure that compliance to the States’ ratification of the relevant instruments along with a complementarity between the regional and international refugee protection frameworks are adequately observed. Other improvements and regulations would be the consistent pressure to ensure Lebanon and Jordan ratify the 1951 Status of Refugees Convention and its 1967 Protocol, as well as honing down on better domestic legislation that will ensure legal protections are provided to refugees and asylum seekers. With stronger mutual cooperation in the Middle East, the distribution of services to victims of mad-made disasters specific to regional affairs may protect women and children from becoming victims of exploitation.

 

[1] http://www.unocha.org/syrian-arab-republic/syria-country-profile/about-crisis
[2] http://data.unhcr.org/syrianrefugees/asylum.php
[3] Article 1 (a)(2) The Convention Relating to the Status of Refugees, 1951
[4] Ibid., Article 33(1)
[5] Qualification Directive 2004/83/EC
[6] Temporary Protection Directive 2001/55/EC
[7] Directive 2011/95/EU of the European Parliament and of the Council, 13 December 2011
[8] Supporting Syria & the Region Conference in London on 4th February, 2016
[9] http://www.unocha.org/top-stories/all-stories/syria-us-34-billion-needed-provide-life-saving-assistance-13-million-people
[10] Op. Cit., 1951 Refugee Convention
[11] General Comment No 6 – Treatment of unaccompanied and separated children outside their country of origin, UN Doc CRC/GC/2006/6 (2005)
[12] Suresh v Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3
[13] OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, September 10, 1969.
[14] Cartagena Declaration on Refugees, November 22, 1984.
[15] Section B of the preamble of the Lebanese Constitution, Lebanese Constitution (1926), as amended to 1995
[16] UNHCR Regional Office in Lebanon, Country Operations Plan 1 (2004)
[17] UNHCR, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: The Republic of Lebanon 2 (Apr. 2010)
[18] Order No. 319 Regulating the Status of Foreign Nationals In Lebanon, Date of Entry into Force: August 2, 1962 (19620802)
[19] Ibid., Article 26.
[20] 1962 Law, Pursuant to article 32 foreigners who enter Lebanon illegally can be imprisoned for one month to 3 years and/or fined.
[21] Human Rights Watch Country Report, Lebanon: https://www.hrw.org/world-report/2016/country-chapters/lebanon#4694c7
[22] Human Rights Watch, Lebanon: New Refugee Policy a Step Forward: Open the Door to Legal Status for All Syrian Refugees, February 14, 2017: https://www.hrw.org/news/2017/02/14/lebanon-new-refugee-policy-step-forward
[23] Freedom Fund, Struggling to Survive: Slavery and Exploitation of Syrian Refugees in Lebanon, http://freedomfund.org/wp-content/uploads/Lebanon-Report-FINAL-8April16.pdf
[24] http://www.dailystar.com.lb/News/Lebanon-News/2017/Feb-11/393177-hezbollah-mediating-safe-return-of-syrian-refugees.ashx
[25] https://www.amnesty.org/en/latest/news/2016/09/syria-jordan-border-75000-refugees-trapped-in-desert-no-mans-land-in-dire-conditions/?utm_content=bufferdbc2e&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer
[26] List of Professions Not Allowed to Foreign Workers, Ministry of Labor, http://www.mol.gov.jo/Portals/ 0/Decisions/closed.pdf
[27] UNHCR Global Appeal 2013 Update: Jordan, UNHCR, http://www.unhcr.org/4ec231020.pdf
[28] Law No. 24 of 1973, art. 12, Al-Jarida Al-Rasmiyya, 16 June 1973, at 1112, http://www.lob.gov.jo/ui/laws/ search_no.jsp?year=1973&no=24 (official website of the Jordanian Council of Ministers)
[29] Declaration of States parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of States Parties, Geneva, Switzerland, 12-13 December 2001, UN Doc. HCR/MMSP/2001/09, 16 January 2002. The Declaration was welcomed by the UN General Assembly in resolution A/RES/57/187, para. 4, adopted on 18 December 2001.
[30] UNHCR, Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group)Persons covered by the OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and by the Cartagena Declaration on Refugees (Submitted by the African Group and the Latin American Group) EC/1992/SCP/CRP.6 (6 April 1992)

 

Love and the Ethics of Emotions

Bullying is an ambiguous term and can be understood as a low-level form of violence.[1] This includes a continuum of aggressive and inappropriate behaviour such as denigrating comments on appearance, intellect or lifestyle choices, ostracising or alienating, covert threats and harassment, deliberately enforcing meaningless or impossible tasks, or deliberately making competent persons appear incompetent, etc &c.[2] Bullying is commonly found in schools, online and in the workplace and it “may be the most prevalent form of violence in schools and the form that is likely to affect the greatest number of students.”[3] As a critical public health issue,[4] bullying can be either covert such as ostracising and slandering, or clearly perceptible and serious such as stalking. “A growing body of research has indicated that both bullying and being bullied can have extensive physical, social and mental health consequences, with a notable impact on academic achievement and social development.”[5] §55A (1)(a) of the Occupation Health, Safety and Welfare Act 1986 states that bullying behaviour is, “repeated and systematic, and that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten”[6] that ultimately creates a risk to health and safety.[7] This risk can include physical, emotional and psychological harm leading to deterioration in health and wellbeing. A negative culture often purports the individual or individuals as “lacking a sense of humour”, being “too sensitive”, or “lacking the talent or intelligence” [which often results in their dismissal] rather than focusing on resolving the problems being raised.[8] Reflection is an important cognitive feature that elevates critically the analytical structure of the emotions and the contribution it may have to moral and ethical wellbeing. Martha Nussbaum discusses emotions, or in particular emotional-thoughts, as contributing toward a better understanding of the subjective human qualities that reconstruct a conception of moral virtue.[9] One aspect of her work that I appreciated was her ability to reflect on her own personal experiences as part of her seminal study of human emotions of which I will attempt to replicate, in doing so knowing that this is all merely a study and process of reflection for my own personal advancement and healing.

I myself was a victim of bullying from multiple sources at the same time and over an extended period and I can assure you that the impact emotionally and psychologically was quite profound. The violence ranged from one man who made comments that I was going bald and other vicious remarks about my appearance that attempted to make me feel very ugly, indirect threats such as stating that ‘women deserve to get bashed’ and recommending that I watch a movie Irreversible about a woman who is brutally raped. The same man involved others by slandering me as a way to protect himself from being caught in the act and wanting – at the time – desperately for him to just stop hurting me, I gave him justifications for his slanderous remarks so that he could feel satisfied enough to leave me alone as I was afraid that he was waiting for a moment to physically hurt me. At the same time I was being harassed by family members [including verbal abuse and threats] that eventually required police intervention due to the serious nature of some of the threats made against me. I never felt so alone and afraid. The bullying and my emotional state raised the past and my childhood to the surface, further adding to the emotional confusion and all this was topped by a loss of my savings and a severe car accident; to protect myself from the onslaught of hatred, I felt it necessary to fabricate strength out of the fear that my vulnerability would be used advantageously that added stress to my already dismal state of mind. The harassment continued online through cyber-bullying and involving others I was again tricked and deceived; my emotional disbelief at that point allowed me to paradoxically pity my subjugator and admittingly even developed feelings for him, feelings I now understand were a result of my vulnerability and confusion. I began to appeal to his conscience, illuminating my personal history to him where I informed him that I did not have a mother or a father as my father was exceedingly violent and my mother emotionally disassociated due to the mental health effects of the trauma he inflicted. I explained that I had never been in a relationship because I was so afraid of being hurt as I was continuously harassed – being the youngest child – by my siblings who consistently told me that I was worthless and ugly likely as a consequence from the upbringing we endured. I even went so far as to admit that I have been alone most of my life and since I was a child would stare out at the stars wishing I would meet someone who actually cared about me.

I used methods of writing that would compel him to read particular topics of moral interest either theologically such as the Book of Proverbs or philosophically, particularly of existential themes to try and motivate a sense of compassion and wisdom. What I really wanted was for him to find the means to acknowledge his previously committed wrongdoing, to apologise to me and allow me to move on from the pain. That an apology and friendship would make him more of a man by truly representing moral strength. I knew that such an apology from my family was impossible as with each attempt at reconciliation they would instead search for and justify their actions by attacking me, usually through psychological manipulation and claim that the fault lies within me. The greatest difficulty was seeing past that, that bullies often blame the victim and make it seem as though it was their fault or that something was wrong with them. And that was how he finalised our encounter by stating that it was me who was ‘crazy’ and that the only reason he was communicating with me was due his sexual desire, words that became the very bullet in my heart knowing that his denial of any wrongdoing was the source of my hurt along with the added humiliation that sharing with him my personal story fell on deaf ears. I had no choice but to abandon the hope that he cared more for the life of an innocent human being over himself and his own ego, that the social ‘show’ he performs is of more importance than the honesty of obtaining a moral heart.

As the sciences define categories to distinguish and relate as part of a process that schematically represent key analytical labels in order to rationally approach and advance a particular topic, the human mind and our experiences function in the same manner. The only flaw in this process is that it is individually up to ourselves to traverse this cognitive dominion and any identification is dependant on a range of factors, more importantly the honesty that we study the biological, environmental, social and a range of other features including emotional and psychological responses with critical evaluation. This is not an easy feat, for instance whether one is an atheist or religious, both are beliefs and to question the nature of that belief and the certainty of conviction often entails a broad epistemic and phenomenological analysis; a mature mind is able to transcend ‘belief’ – broaden their horizon – and ascertain the subjective ingredients that reflect the causal nature prompting emotional responses and moral considerations, or the lack thereof. According to Kant, a moral agent is one who acts on maxims that attune moral judgements toward guiding and motivating virtuous principles and values: “[t]he moral law is for itself the motivation in reason’s judgement and those who make it their maxim are morally good.”[10] This is under the basis of a law of autonomy, the capacity to reflect and identify information, decisions and experiences accessible only to an individual separate from any dispensation to others whether it is institutionally, socially, religiously or even personally including family and friends; one capable to self-govern as an authority over his or her own existence. While many people believe themselves capable of such authority, it is clear that this individualism merely cloaks what is a strict adherence to social constructs that provide the falsification of an ‘individual’ – like in the United States there exists rhetoric that loudly speaks of individualism when a majority blindly follow in masses.

One particular element I found intriguing in Nussbaum’ argument is the nature of emotions being subject to a world that we cannot control, that our emotional responses become the impetus that compels a better understanding of value and of well-being. “Nussbaum argues that an emotion is constituted by judgements that we make in relation to objects that are of importance to our world and wellbeing. Commonly these evaluations pertain to things we cannot fully control.”[11] An important aspect to this argument is the impact this lack of control or separateness has on the individual – perhaps causally the reason for someone to become the ‘bully’ – as this separateness from the world around us provokes an emotional disarray, leading to such confusion and anxiety that one is compelled to repress or act in a manner that is damaging to others or themselves, becoming dishonest or deceitful in nature and incapable of confronting their own wrongdoing. As Nussbaum shows, the loss of a family member confirms that we lack any control. When I say separateness, I take the Frommian approach to the term:

“Man is gifted with reason; he is life being aware of itself; he has awareness of himself, of his fellow men, of his past, and of the possibilities of his future. This awareness of himself as a separate entity, the awareness of his own short lifespan, of the fact that without his will he is born and against his will he dies, that he will die before those whom he loves, or they before him, the awareness of his aloneness and separateness, of his helplessness before the forces of nature and of society, all this makes his separate, disunited existence an unbearable prison… the experience of separateness arouses anxiety; it is, indeed, the source of all anxiety.”[12]

The anxiety stems from the fact that we are alone and separate from the world around us that we create symbiotic attachments at personal and social levels to falsify a fictional connection, sometimes being brutal in our attempt to control our environment due to this unbearable anxiety. My emotional collapse following the extremity of the preceding experience enabled me the capacity to study and reflect on my own existential position in a world where aloneness became clearly perceptible that – slowly but surely – I became aware of the importance of my own health and body, my mind and my capacity to achieve that I suddenly realised my own significance; I transformed from a miserable, hollow person to a Kantian moral agent standing fearlessly in an eternal and universal form of love. I now find myself in the Maslow sense meta-motivated where I am strengthened by a motivation to consistently improve my state of mind and wellbeing and that I choose who I have in my life and who I refuse in addition to fortifying my professional and ethical position. Love and developing my moral stance has become the substance that fills the void, the universal and eternal sense of wholeness that nothing else, no fleeting or pleasurable feeling or relations with others could substantiate. Viktor Frankl discusses this deep emotional challenge following his experience during the holocaust where he transcended the suffering to illustrate the importance of finding meaning in his life. “Life is never made unbearable by circumstances, but only by lack of meaning and purpose.”[13] That the underlying and unbearable truth is that we lack a purpose.

I came to see that what we have developed to overcome this is the distraction of a consumer, perhaps a sociopathic society – that is a society with an impaired understanding of morality – characterised by egotistical traits under the fraud of material and fleeting physical considerations where meaning is merely the social position that one replicates for approval that only rapidly disintegrates the possibility of attaining individual autonomy. Imagine it like this; a person is listening to headphones and singing along to “Happy” by Pharrell Williams while dancing down the street, completely oblivious to a war going on around them, hopping over dead bodies and patting the heads of crying children. There are terrible things going on in this world, what are you doing? People have become worried about their bodies and appearances, afraid of what other people may think as though this neuroticism now coerces people to participate, enticed with sexual pleasures rather than intellectual pursuits and viewing people – even themselves – as a commodity. Lacking the capacity to reason with compassion is an exposure of what I stated once before – that society has become sociopathic – namely that moral virtue and wisdom is the basis for a genuine or honest individual and that acting according to an image is living in a state of delusion that disconnects one from their own emotions and thus from attaining any genuine sense of moral well-being. If the anxiety of being alone provokes such intense feelings of subjective anxiety, people mould themselves to environments and adapt to people that they are not genuinely happy with as though they would rather have noxious people in their lives than be alone [for instance, women who stay in relationships that involve domestic violence].

It is by being alone that one can embrace and retain the integrity that could define the conditions of an ‘individual’ and the strength to survive the anxiety is only possible by embracing love, whereby I interpret ‘love’ as being moral consciousness. While the pain occasionally arises where I do hope that I receive a genuine apology or as said by Aaron Lazare, “[a]pologies have the power to heal humiliations and grudges; remove the desire for vengeance, and generate forgiveness on the part of the offended parties,” I have come to accept my circumstances and no longer have the same intense emotions as I slowly advance toward a better understanding and appreciation of myself. An apology is taking responsibility for a mistake and as such reflects the same causal response or emotional reaction a victim would experience; that is, repentance allows one become aware of themselves. Emotions and being vulnerable are not a reflection of weakness, on the contrary they play an evaluative role that exposes an incompleteness that we feel but are yet to understand. The nature and role intuition – the oft elusive tool that I believe utilises an emotional reaction to an unconscious belief such as feelings of doubt, fear, or confusion arouses a reactionary response without conscious awareness – becomes an epiphenomena or by-product of an experience and the very stimulus that develops a perceptual examination of a moral or ethical quandary. That is, we may have experienced something we do not consciously understand or even remember objectively and thus when we encounter a situation that prompts an intuitive reaction, it is as though an epistemic mental representation without an explicit logical structure is speaking to us something that we already know but that we do not yet understand at conscious level. I have come to view my emotions as my strength as the heartache I endured enabled me to reflect on my past experiences with objectivity, to attempt to find forgiveness despite the consistent opposition.

Although I have been alone for most of my life, I now have the capacity to choose to find and commit myself to a mature love, one that distinguishes itself from symbiotic attachments and that involves honesty, genuine care and humility. That as a little girl, I looked up at the stars wanting to be cared for only to now see that I am still that little girl and was right all along. All we need to do is remove the mess of everything that happens from childhood until now and remember that innocence and that love within ourselves.

As said by Frankl: “For the first time in my life I saw the truth as it is set into song by so many poets, proclaimed as the final wisdom by so many thinkers. The truth – that Love is the ultimate and highest goal to which man can aspire. Then I grasped the meaning of the greatest secret that human poetry and human thought and belief have to impart: The salvation of man is through love and in love.”

[1] Glennis Hanley, “Don’t Do What I Do – Just Bloody Well Do What I Say! The Workplace Bullying Experiences of Australian Academics” Monash University Working Paper 63/03, September 2003.

[2] Clare Mayhew and Duncan Chappel, “’Internal’ Violence or Bullying and the Health Workforce” NSW Department of Health, Taskforce on the Prevention and Management of Violence in the Health Workplace.

[3] George M. Batsche & Howard M. Knoff, “Bullies and their Victims: Understanding a Pervasive Problem in the Schools,” School Psychology Review, 23 (1994), 165 – 175.

[4] John Blosnich and Robert Bossarte, “Low-Level Violence in Schools: Is There an Association between School Safety Measures and Peer Victimization?” Journal of School Health, 81:2 (Feb 2011), 107-113. The Mental Health Reforms through the Gillard Government has provided hundreds of millions of dollars to better mental health care to Australians due to the rising problem of mental health issues such as depression and suicide.

[5]Australian Covert Bullying Prevalence Study, “Covert bullying: A Review of National and International Research” Department of Education, Employment and Workplace Relations, Australia, pp12-62

[6] §55A (1)(a) of the Occupation Health, Safety and Welfare Act 1986

[7] §55A (1)(b) of the Occupation Health, Safety and Welfare Act 1986

[8] Op.Cit., Glennis Hanley

[9] Please see Martha C. Nussbaum, Upheavals of Thought: The Intelligence of Emotions, Cambridge University Press, (2003)

[10] G. Felicitas Munzel, Kant’s Conception of Moral Character: The “Critical” Link of Morality, Anthropology, and Reflective Judgment, University of Chicago Press, (1999) 68-69

[11] Chris Barker, Emma A. Jane, Cultural Studies: Theory and Practice

[12] Erich Fromm, The Art of Loving: The Centennial Edition, A&C Black (2000) 8

[13] Itai Ivtzan, Tim Lomas, Mindfulness in Positive Psychology: The Science of Meditation and Wellbeing, Routledge (2016) 228