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Multi-Dimensional Challenges, Multi-Sectoral Innovations: The Resilience of Common Forest Management in Japan

June 22, 2020
By 26719

Yance Arizona[1] is a 2011 Sylff fellow from the University of Indonesia and currently a PhD candidate at Leiden University in the Netherlands. Using an SRA award, he visited the Osaka University of Tourism in Japan and the University of New South Wales in Australia to sharpen the comparative elements of his research on customary land recognition in Indonesia. In this article, he focuses on lessons learned about the resilience of common forest management in Japan by discussing the challenges and innovations of state and nonstate actors.

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Community-based forest management has a long history in rural Japan. Since the Edo period (1603–1868), rural communities have shared their collective land and labor to maintain forest and other natural resources for self-sufficiency. This model of natural resource practice is known as common forest management. The common forest, called iriai in Japanese, became integrated into the traditional village system.[2] The membership of iriai common forest groups is embedded in that of traditional Japanese villages (mura). However, common forest management has slowly changed over time due to internal and external factors since Japan entered the industrial revolution. This article discusses several challenges concerning the current practice of common forest management in Japan. I also reveal several initiatives by the government and citizens to restore collaborative forest management and to renew interest in rural development. The analysis in this article is based on interviews, literature studies, and observations conducted in two rural areas in Japan during my Sylff Research Abroad (SRA) fellowship in November and December 2019.

 

What Is the Common Forest in Japan?

Many scholars have used the iriai forest or common forest in Japan as an illustrative example of potential community-based management as an alternative to private property ownership and an extractive model of natural resource management (Mitsumata and Murata 2007; Berge and McKean 2015). For a long time, the rural population in Japan has collectively engaged in agricultural activities in shared communal land by planting trees, especially sugi and pine, to meet their daily needs. Iriai groups have collectively cleared, planted, maintained, and harvested forest products to provide mutual benefits among the members. The membership of the common forest group was initially based on the membership of a village. Since the Japanese government installed modern development programs, primarily through the Meiji Restoration (1868), many traditional concepts, laws, and activities have slightly changed. In the following section, I will discuss five concerns about recent developments in common forest management in Japan.

Five Challenges of Common Forest Management

The common forest practice in Japan faces multidimensional challenges. Here I will briefly discuss five major challenges of the common forest in Japan, including demographic, economic, environmental, institutional, and regulatory factors.[3] Firstly, legal uncertainty leads to misrecognition and disputes among iriai rights holders (regulatory factor). During the Meiji era (1868–1912), Japan’s Civil Code began to take effect. The Civil Code is a mark that Japan began incorporating a modern legal system inspired by the German and French legal traditions (Kanamori, 1999). Regarding the property right regime, the modern Civil Code strictly divides land property into private and public properties (Suzuki, 2013: 67–86). In short, private property is in the ownership of individual citizens, whereas public property belongs to the state or other public bodies. This dichotomy leads to uncertainty regarding the legal status of iriai forests because the iriai model cannot be categorized as either private or public property. As a result, Article 263 of the Civil Code considers the common forest to be in the co-ownership of a group of citizens. By contrast, Article 294 stipulates iriai as the right of the local population to use state land or forest. Neither of these articles represents the original model of iriai forest rights, which combine communal and individual land ownership.

Misrecognition of the legal status of the common forest in the Civil Code generates ambiguity in land registration practices. Iriai rights holders have to register their common land and forest under “nominal names” on behalf of other legal entities. Gakuto Takumura (2019) demonstrates six models of how iriai rights holders register their communal land rights. These six models of adaptation to the modern land administration system appear in the registration of a common forest on behalf of other legal entities, such as (a) a leader of a village, (b) several leaders of a village, (c) all household heads in a village, (d) a shrine or temple of a village, (e) a new municipality, or (f) a district, a cooperative, or an authorized community association. Registering the iriai right under nominal names has occasionally caused legal disputes among the iriai rights holders. One case that received much attention in Japan was the Kotsunagi case, which took decades for the courts to settle (Inoue and Shivakoti 2015).

 

The author gives a guest lecture on customary forests and tourism in Japan and Indonesia at the Osaka University of Tourism. Detailed information can be found at https://www.tourism.ac.jp/news/cat3/5810.html.

The second concern is government imposition of the modernization of iriai forest management (institutional factor). Besides the legal status, another institutional challenge to the iriai forest is the modernization of the rural administrative system. In the early period of the Meiji era, the Japanese government announced a policy to modernize village governments. The modernization of village government affects iriai forest management because iriai group membership was traditionally based on membership in a traditional Japanese village. This challenge parallels the general trend in rural Japan to merge villages rather than splitting them into several smaller villages. When two or more villages are merged, a question arises regarding the ownership and membership of iriai rights, whether it still belongs to the initial village that has merged or it becomes the co-ownership of the new village union.

Another striking policy by the Japanese government to modernize iriai forest management is the Modernization of the Common Forest Act of 1966 (Takahashi and Matsushita 2015). This act intended to transform traditional common forest practices into modern forest management. However, the implementation of this act did not result in a uniform model of forest management; instead, the act has been adopted in different models of forest management depending on the social conditions of iriai rights holders. Research by Daisaku Shimada (2014) revealed how rural communities in the Yamaguni district in Kyoto adapted to the Modernization of Common Forest Act and other external influences, such as population change and the timber liberalization policy in securing common forest management. Rural communities modify their common forest institution to allow migrants to be members of new forest management boards.

The third challenge is depopulation and urbanization (demographic factor). In contemporary Japan, depopulation and urbanization are central issues in the debate on rural development. Japanese society is experiencing depopulation because of a low birthrate and an aging population. At the same time, the urbanization level is dramatically high. Many young people move away to live in urban areas, leaving the rural areas mainly inhabited by older generations. Depopulation and urbanization affect the membership and decision-making process in common forest management. The membership of iriai forest groups shrinks as some of the members move to the city or elsewhere, causing a reduction of the workforce in the management of the common forest. In the past, iriai rights holders lived permanently in a village. When someone moved to other villages, his or her rights to the iriai forest vanished. Today, some people consider their rights to remain valid even when they have moved to other villages. Another problem in terms of people’s mobility concerns the decision-making process in common forest management. Traditionally, iriai rights holders decide on common forest management through a consensual agreement among the group members (Goto 2007). If a member of the iriai group is not involved or disagrees with the majority opinion, it means that the group has not reached a consensual decision. Currently, some iriai groups apply flexible categorization to their common forest membership by including newcomers to the board and involving them in the decision-making process. The lack of a clear decision-making process and a shrinking workforce have led to the underuse of iriai forests in several places in rural Japan.

The fourth problem is the timber liberalization policy (economic factor). In the 1960s, the Japanese government introduced a timber trade liberalization policy to support industrial development. This policy increased timber import from other countries, mainly from the United States, Russia, and Southeast Asian countries. As a result, this strategy decreased the competitiveness of domestic timber production and the economic value of wood, which has been the core commodity of common forests. Before the timber liberalization policy, the common forest supplied wood for building houses, offices, castles, and temples, as well as for making furniture, and provided firewood for cooking and heating. From the 1960s onward, as the country entered a period of rapid economic growth, Japan replaced the use of wood with other resources. The use of concrete and steel is more dominant for residential buildings and offices, and the use of fossil fuels in place of firewood is increasingly widespread. In addition, to meet domestic wood demand, the Japanese government no longer relies on domestic supplies and relies instead on imported wood. This timber import policy devastated Japan’s domestic timber production and market. Consequently, the core business of iriai forests, that of meeting domestic wood demand, has gradually declined. Lack of productive activities in rural areas also became one of the drivers for rural people to move to big cities.

 

Together with a group of postgraduate students from Kyoto University, the author visits a private forest in Kawakami Mura, Nara Prefecture. This forest site is the oldest planted forest in Japan.

The final concern relates to land degradation (environmental factor). Iriai rights holders maintain the common forest by growing supporting plants around the main trees. These plants support soil fertility and provide economic benefits to farmers. However, due to the shortage of labor to maintain the common forest, conifer plantations are left unmaintained. At first glance, this condition looks good for conservation, because forests are left green and trees grow for long periods. But apparently, this is not suitable for the healthy growth of the main trees because they are in competition with the shrubbery. Moreover, unmanaged conifer plantations cause frequent landslides in rural areas. These disasters are compounded by the typhoon and earthquake catastrophes that often occur in Japan. This environmental vulnerability is not only the cause but also the result of underutilization of the common forests.

Revitalization Movements

The revitalization of common forest management in Japan corresponds with an attempt to improve rural livelihoods. The Japanese government and nongovernmental organizations engage in rural development, including the revival of common forest management. The Japanese government, through the Ministry of Internal Affairs and Communications, implements a program to increase the interest of urban residents, either Japanese citizens or immigrants, in living in rural areas. These people from different locations assist rural community members in meeting their basic needs, especially related to health and livelihood. Moreover, the Japanese government promotes a “forest volunteer program” to attract people’s interest in getting involved in forest restoration activities. Forest volunteers are individuals other than forest owners or those with a direct interest, who participate in on-site work necessary for forest management in response to the critical state of the forests. Shinji Yamamoto (2003) found that the forest volunteer program has been generating a positive impact on drawing urban people’s interest in forestry activities. This program began in the 1970s and has since spread across the country. According to Japan’s Forestry Agency, the number of citizens’ organisations that have participated in forest volunteer activities was 2,677 as of 2010 (Yamamoto 2003). 

Nonprofit organizations and universities also run several programs to enhance the interest of young generations regarding rural livelihood and environmental management. A crucial example is the kikigaki program. Literally, kikigaki consists of the words kiki (“listening”) and gaki (“writing”). The kikigaki program encourages young people to take an interest in the stories of local people. Kikigaki is a learning method for understanding someone’s life story through direct dialogue. Since 2002, high schools in Japan have adopted the kikigaki method to raise students’ awareness of societal problems faced by rural communities (Effendi 2019). Due to the increase in global attention toward environmental issues, the kikigaki program also covers environmental education for children. Environmental issues allow students to get involved in the revitalization of common forest management. The kikigaki program initially developed in Japan and spread out to other countries, such as Indonesia. I interviewed Motoko Shimagami, who is developing kikigaki programs in both Japan and Indonesia. According to Shimagami, youth involvement is an essential factor in improving rural livelihood and sustainable environmental management. Several years ago, Shimagami conducted a comparative study of common forest management between Indonesia and Japan (Shimagami 2009) and found that similar methods of revitalization of the common forest through the education of high school students are pivotal in both countries.

 

Matsutake Crusaders, a voluntary group dominated by elders who gather every week to maintain a hill landscape, creating a suitable condition for matsutake mushrooms to grow.

Another initiative that I have seen in Japan is the ecovillage network. An ecovillage is an intentional, traditional, or urban community that is consciously designed through locally owned participatory processes encompassing social, cultural, ecological, and economic dimensions to regenerate social and natural environments.[4] In 2013, I visited the Konohana Family ecovillage in Shizuoka Prefecture. This ecovillage is part of a worldwide ecovillage network. The Konohana Family, though it calls itself a family, consists of 100 members who are not of the same blood. They live in rural areas and cultivate collective agricultural land. With the spirit of “togetherness” as a family, they fulfill basic needs through collective land management. During my visit to Japan with the support of the SRA fellowship program, I visited the Matsutake Crusaders in the northern part of Kyoto. This group consists of more than 30 retirees who gather once a week to engage in collaborative natural resource management. They nurture matsutake, a wild mushroom typical of Japan that has high economic and cultural values (Tsing 2015). They voluntarily cut some pine wood as a precondition to creating a suitable environment for matsutake to grow. Professor Fumihiko Yoshimura, the leader of this group, said that although this initiative is different from the iriai rights model, they called it a satoyama movement. The satoyama concept in landscape management combines forest and agricultural activities, mainly in hill areas. Currently, many rural communities in Japan are involved in satoyama movements (Satsuka 2014). In another location, a study by Haruo Saito and Gaku Mitsumata (2008) shows the integration of matsutake production with traditional iriai land use in Oka Village, Kyoto Prefecture.

This article has illustrated five major challenges of common forest management in Japan. These challenges are responded to with a variety of innovations by the government and nongovernment organizations to help the common forest practices survive in supporting rural livelihood. These innovations to revitalize community-based natural resource management have been developed with various narratives such as environmental movements, rural livelihood supports, family and community orientation projects, and voluntary civic education. Although rural communities have encountered serious challenges since Japan entered industrial development, villagers continue to maintain the common forest with some modifications. Villagers demonstrate the resilience of common forest management by taking an inclusive approach that includes migrants in the board membership of common forest management and by involving themselves in broader networks of community-based natural resource movements. Community resilience is the crucial factor in common forest management in Japan.

 

References

Berge, Erling, and Margaret Mckean. 2015. “On the Commons of Developed Industrialized Countries.” International Journal of the Commons 9, no. 2 (September 2015): 469–85.

Effendi, Tonny Dian. 2019. “Local Wisdom-based Environmental Education through Kikigaki Method: Japan Experience and Lesson for Indonesia.” IOP Conference Series: Earth and Environmental Science 239: 012038. https://doi.org/10.1088/1755-1315/239/1/012038.

Goto, Kokki. 2007. “‘Iriai Forests Have Sustained the Livelihood and Autonomy of Villagers’: Experience of Commons in Ishimushiro Hamlet in Northeastern Japan.” Working Paper Series No. 30. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Inoue, Makoto, and Ganesha P. Shivakoti. 2015. Multi-level Forest Governance in Asia: Concepts, Challenges and the Way Forward. India: Sage Publication.

Kanamori, Shigenari. 1999. “German Influences on Japanese Pre-War Constitution and Civil Code.” European Journal of Law and Economics 7, no. 93–95. https://doi.org/10.1023/A:1008688209052.

Mitsumata, Gaku, and Takeshi Murata. 2007. “Overview and Current Status of the Iriai (Commons) System in the Three Regions of Japan: From the Edo Era through the Beginning of the 21st Century.” Discussion Paper No. 07-04. Kyoto: Multilevel Environmental Governance for Sustainable Development Project.

Miyanaga, Kentaro, and Daisaku Shimada. 2018. “‘The Tragedy of the Commons’ by Underuse: Toward a Conceptual Framework Based on Ecosystem Services and Satoyama Perspective.” International Journal of the Commons 12, no. 1: 332–51.

Saito, Haruo, and Gaku Mitsumata. 2008. “Bidding Customs and Habitat Improvement for Matsutake (Tricholoma matsutake) in Japan.” Economic Botany 62, no. 3: 257–68.

Satsuka, Shiho. 2014. “The Satoyama Movement: Envisioning Multispecies Commons in Postindustrial Japan.” In Asian Environments: Connections across Borders, Landscapes, and Times, RCC Perspectives, no. 3: 87–94.

Shimagami, Motoko. 2009. “An Iriai Interchange Linking Japan and Indonesia: An Experiment in Interactive Learning and Action Leading toward Community-Based Forest Management.” Working Paper Series No. 46. Afrasian Centre for Peace and Development Studies, Ryukoku University.

Suzuki, Tatsuya. 2013 “The Custom and Legal Theory of Iriai in Japan: A History of the Discourse on the Position of the Rights of Common in the Modern Legal System.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo-New York-Paris: United Nations University Press.

Takahashi, Takuya, and Koji Matsushita. 2015. “How Did Policy Intervention Work Out for Commons Forests in Japan? An Analysis of Time-Series Prefectural Data.” Paper in the IASC Conference 2015 Edmonton W23 (2015-5-27).

Takamura, Gakuto. 2019. “The Bundle of Rights Model to Explain the Underuse of Japanese Common Forest from History.” Presentation in Asian Law and Society Association (ALSA) Conference, Osaka Univesity, December 12–15, 2019.

Tsing, Anna L. 2015. The Mushroom at the End of the World: On the Possibility of Life in Capitalist Ruin. Princeton: Princeton University Press.

Yamamoto, Shinji. 2003. “Forest Volunteer Activity in Japan.” In Local Commons and Democratic Environmental Governance, edited by Takeshi Murota and Ken Takeshita. Tokyo–New York–Paris: United Nations University Press. 287–302.

 

 

 

[1] I would like to express my gratitude to Professor Sozaburo Mitamayama (Osaka University of Tourism) for his hospitality and assistance during my research visit in Japan. I am also thankful for a series of insightful discussions that I have had with Motoko Shimagami (Ehime University), Gaku Mitsumata (Hyogo University), Gakuto Takamura (Ritsumeikan University), and Mamoru Kanzaki and Daisuke Naito (Kyoto University), and for the fruitful comments by Hoko Horri (Leiden University) for this article.

[2] In this article, the terms “common forest” and “iriai forest” are used interchangeably.

[3] See also Kentaro Miyanaga and Daisaku Shimada (2018), who identify three main driving factors that lead to the underuse of common forests in Japan: demographic drivers, socioeconomic drivers, and institutional drivers.

[4] See. https://ecovillage.org/projects/what-is-an-ecovillage/

On Principles in Japanese Law

May 12, 2020
By 24601

Using an SRA award, Miloš Marković, a 2017 Sylff fellow from the University of Belgrade, visited Japan between November 2019 and January 2020. His main goal was to explore and assess the application of legal principles in the modern sense as constitutional rights in Japan by interviewing legal scholars as well as lawyers and judges there.

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Historical and Motivational Background

The distinction between legal rules and legal principles has been in the center of much theoretical thought in the past few decades. The beginning of a broad discussion was marked by Dworkin’s major challenge of legal positivism.[1] Eight years later, Alexy brought the topic to a whole new level by developing a theory of constitutional rights as principles.[2] The principles theory even evolved into a full-fledged theory of law.

The main difference between these rules and principles is how to resolve their conflict. When two legal rules come into conflict, one of them is abolished or excepted. Only one of two norms prescribing different deadlines for the same complaint may be valid, not both. When two legal principles come into conflict, both remain valid and neither is declared an exception, yet one overweighs the other under the specific circumstances of the case. Freedom of trade and the protection of customers may intersect and conflict and determine the outcome of the case, yet neither has absolute priority in application over the other.

The author, left, with one of the interviewees at a law firm in Tokyo.


When I first approached the topic of legal principles in the course of doctoral studies, it was clear from the start that the comparative dimension would play a major role in the research. Legal systems to be taken into consideration were as usual French, Austrian, German, and American. However, the major legal systems in the Far East has always inspired curiosity among European lawyers. Unfamiliar customs, different religions, exotic dishes, and undecipherable scripts keep China, Japan, and Korea mostly under a veil of unknown for people in Serbia and other European countries. Legal transplants from the West in the cultural environment of East Asia seemed to drift farther away from their original meaning than elsewhere. After completing two research stays in Austria and Germany, the main reason for my choice of Japan as a host country to investigate legal principles in a comparative perspective was the historical influence of German law.

The modernization process in Japan began in 1868 with the fall of the Tokugawa Shogunate, which had ruled the country for two and a half centuries.[3] Faced with the threat of being colonized by Western countries, the Meiji government set out to establish a modern legal system in conformity with European tradition and renegotiate unfair commerce treaties.[4] France was believed a leading European country with comprehensive legal codes, and French scholars were invited to draft codes for Japan. For the first time, Japanese words had to be invented for the concepts of right, freedom, and liberty, as well as property over land. However, the French drafts triggered strong criticism for violating the traditions of Japan, so the government decided to rely more on German scholars. Ultimately, the whole legal system was modeled on German law. The first Constitution of Japan was enacted in 1889, and the first Civil Code in 1898. Japan thus became a civil law country.

Having in mind that German law exercised influence in Japan in ages past, I reckoned that the modern principles theory as developed by the German Federal Constitutional Court might have already been accepted independently by the courts in Japan due to the shared legal tradition. A comparison of statutory norms and judicial decisions should point out differences and similarities between major legal systems and thus prove the universality of the principles theory. That hypothesis motivated me to set sail for the land of the rising sun.

Original copy of the Constitution of Japan enacted on May 3, 1947, as the new constitution for a post–World War II Japan.

Choice of Methodology

My primary method consisted of interviews with Japanese scholars and judges to learn what they know and what importance they assign to the principles theory. However, things did not go completely as planned for two reasons. First, the language barrier made online communication with both courts and faculties practically impossible. Since contact e-mails turned out to be unavailable on official websites and some letters remained unanswered, plans to arrange a meeting on my own were thwarted. Second, the physical barriers at the entrances of law faculties prevented access without invitation and thus hindered me from seeking assistance independently.

Consequently, meetings were exclusively arranged on the recommendation of an acquaintance or the supervisor himself.[5] Such recommendations prompted better preparation and substantial interest on the part of the interviewees. Everyone put much effort into disentangling complex questions and discussing them on a practical level. All in all, I had fewer yet longer, better, and more insightful discussions with lawyers in Japan than originally envisioned.

My secondary method was supposed to be to gather data via computer analysis of judgments based on the word “principle.” However, it turned out that decisions of Japanese courts are rarely translated into English. In addition, fieldwork showed that a reliable translation of a judicial decision requires long work, rich legal knowledge, and mastery of both languages, and thus much money. As a result, the original proposal ran ashore. To overcome the obstacle, I turned to books on Japanese case law and searched myself for principles hidden within the reasons adduced.

 

Research Findings

My research in Japan confirmed the hypothesis that every legal system necessarily includes principles besides rules. At the outset of each interview, Japanese judges tended to understand principles as unwritten legal norms and were majorly averse to the idea that they play a role in the decision-making process. The only reasons for a judgment should be rules as prescriptions. However, when confronted with hard cases, judges usually admitted that rules are insufficient to justify a decision. They must then reach out for more general rules or the purpose of a rule. When asked to solve a conflict between such abstract norms, judges agreed that such conflicts cannot be solved by abolishing one of them or declaring one an exception.

Interviewed judges keenly defended the position that a solution to each case can be found in rules by means of an adequate interpretation. The meaning of each norm can be narrowed or broadened in order to exclude or include different cases and provide a solution. An interesting detail from the conducted interviews was the opinion that the first and foremost norm in the Japanese Civil Code, “good faith,” represents a rule. Such reasoning shows that judges tend to regard every case from the standpoint of only one norm. However, it is inevitable that norms sometimes overlap or intersect, in which case only a cluster of norms may provide a basis for decision. Principles come into play when such a conflict is irresolvable by means of abolition and exception.

An illustrative example is the “After the Banquet case,” in which the Tokyo District Court had to decide about an alleged violation of privacy.[6] A novel was published by the famous Japanese author Yukio Mishima. Although the names were altered, practically everyone could recognize that the model in the book was Foreign Minister Hachiro Arita. The court obviously had to balance between right to privacy and freedom of speech, or freedom of artistic expression, as Japanese lawyers like to put it. In 1964 Japan obtained its first judicial recognition of the right to privacy. Mishima lost the case and tried to bring the case to a higher court, but the foreign minister died, and a settlement was reached between the two sides. From the standpoint of principles theory, it is important that no right was abolished or declared an exception. The discussed judgment is clear evidence that in Japanese law some norms function as principles, and those are primarily constitutional norms awarding rights.

The author in front of the Akamon gate built during the Tokugawa Shogunate. The gate is located at one of the entrances of the University of Tokyo’s Hongo campus, where he was based during his research in Japan.


It was remarkable to find an analogous case in Europe. Photographs of Princess Caroline of Monaco were published in several magazines. The case was brought before the German Federal Constitutional Court. In order to reach a decision, the court had to balance two constitutional rights: freedom of speech and right to privacy.[7] For the majority of photos the freedom of speech was given priority due to the status of the complainant as a public personality. However, three photos where the complainant was with her children were deemed to infringe disproportionally on their privacy, which is why priority switched to the right of privacy. The main point is that the first principle overweighed the second and vice versa under respective specific circumstances, yet both principles remained valid and no absolute hierarchy was introduced. Had the court abolished one of the conflicting norms or declared one to be an exception of the other, those norms would have been treated as rules.


Related news on the Sylff website:
https://www.sylff.org/news_voices/27360/ 

[1] Ronald Dworkin, “A model of Rules I,” Taking Rights Seriously (Cambridge: Harvard University Press, 1978), 14–45.

[2] Robert Alexy, Theorie der Grundrechte (Berlin: Suhrkamp, 1986), 71–154.

[3] James L. McClain, Japan: A Modern History (New York: W.W. Norton & Company, 2002), 119–207.

[4] Shigenori Matsui, The Constitution of Japan: A Contextual Analysis (Portland, OR: Hart Publishing, 2011), 7–13.

[5] In that regard, I am much indebted to Professor Yasunori Kasai and Professor Masayuki Tamaruya, as well as the Sylff Association.

[6] Judgment of Tokyo District Court, 1964, Kaminshu 15-9-2317. There is no translation of the sentence available online. I am much obliged to Professor Hitoshi Nishitani for the particulars of the case.

[7] https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/1999/12/rs19991215_1bvr065396en.html

The State and the Rights of Individuals: Pursuing Research at the Graduate Institute Geneva

April 16, 2020
By 25314

Using an SRA grant, Benedikt Behlert spent four months from September 2019 to January 2020 as a junior visiting fellow at the Graduate Institute of International and Development Studies in Geneva, Switzerland, which proved to be highly beneficial for his PhD project on the administrative procedures required to protect human rights. 

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My PhD project on “The Necessity of a Conversation between the Administration and the Individual: The Relevance of Procedure to International Human Rights” asks the question whether international human rights law requires states to have in place structured decision-making procedures for their administrative bodies. Such procedures are often perceived as a nuisance by the two sides involved—the administration and the individual confronted with it—and as an unwelcome hurdle in reaching their objectives.

The Maison de la Paix, home of the Graduate Institute Geneva.

This perception clouds the value of administrative procedure, however, which can protect individual rights against arbitrary state action. This protective potential is realized first and foremost by involving the individual in the decision-making process, such as by granting them a right to be heard and requiring reasons for a negative decision. This is the insight from which my normative analysis of international human rights law commences.

The different ways in which individuals are potentially confronted by administrative bodies are numerous. Beyond “everyday encounters,” such as when an individual applies for a permit, there are complex and sensitive human-rights issues like the ongoing “migration crisis” that highlight the relevance of this inquiry.

What does international human rights law say about the relevance of procedures for the protection of the rights of migrants and refugees? Does it require institutionalized procedures to examine whether a person’s claim for asylum is well-founded? What should such procedures look like? A thorough understanding of the general relationship between the laws governing international human rights and administrative procedures should help answer such questions about specific encounters between state administrations and individuals.

Comparison with Constitutional Rights

One chapter of my thesis draws inspiration from German constitutional law, in particular, the German doctrine of constitutional rights. The connection between administrative procedure and German constitutional rights has been discussed for more than 40 years. The ideas and arguments found in this discourse are by now well-developed, and given the striking structural and substantial similarities, they might provide valuable insights for human-rights-based arguments.

The goal of this comparative exercise was to learn something about the structure and nature of international human rights law, which will inform the subsequent part of my thesis where I try to construct an international-human-rights-law-based argument in favor of procedural rights and obligations.

However, looking for inspiration from one’s own jurisdiction carries a certain risk for the international lawyer. The outcome of research may be too heavily influenced by one’s own background and thus irrelevant to the international legal discourse. In order to avoid falling into this trap, I decided to write the part of my thesis focusing on the similarities and differences between constitutional rights and international human rights in a highly international research environment.

I had the great honor of spending four months at the Graduate Institute of International and Development Studies in Geneva as a junior visiting fellow. With its very diverse faculty and even more diverse student body, the Graduate Institute Geneva—also a Sylff institution—was just the right place for me to get the inspiration and critical feedback I needed.

The view from my workplace at the Graduate Institute Geneva.

The Benefits of an International Research Environment

I reviewed pertinent German constitutional law literature and international human rights law literature during my stay. The vast number of resources available at the Graduate Institute and its library were a great help. Most importantly, however, I had the chance to talk to researchers at various levels—PhDs, postdocs, and professors—from different disciplinary and national backgrounds, both informally and in more formal settings. Everyone at the International Law Department was extremely welcoming and helpful. In numerous talks with members of the world-renowned faculty and fellow PhD students, I received valuable input.

Furthermore, I gave a presentation in a roundtable session at the International Law Department, which was followed by an engaging and stimulating discussion. Not only did all these talks enable me to think about the German ideas more critically, but they also helped me to find more effective ways to present my findings to an international audience, which is the eventual target of my thesis.

Beyond the direct benefits for my research, my time as a junior visiting fellow at the Graduate Institute helped to broaden my horizon more generally. Almost every day, a high-level event with leading figures of international politics took place in the grand auditorium, exposing me to many interesting and informed analyses of current issues and crises. The junior visiting fellowship thus enabled me to better perceive my research within the bigger picture of international studies. Finally, the support which the International Law Department and the visiting fellows office provided was outstanding, very personal, and made my stay comfortable and easy.

Being a junior visiting fellow at the Graduate Institute Geneva was a splendid experience. I am certain that my thesis will reflect the inspiration and input I received during my stay. I am immensely grateful to the Sylff Association for funding my stay in Geneva with a generous SRA award, and I can only encourage other fellows who have not done so to make use of the extraordinary opportunities the Sylff Association provides!

Jonction, the place in Geneva where the Rhône and the Arve meet.

Behlert's related article "Forced Migration in Transition: Perspectives from Social Science and Law" can be read at www.sylff.org/news_voices/27466/.

Forced Migration in Transition: Perspectives from Social Science and Law

February 6, 2020

In November 2019, we, members of the Sylff Mikrokolleg on Forced Migration at Ruhr University Bochum (RUB), hosted the conference “Forced Migration in Transition: Perspectives from Social Science and Law” at our home university in Bochum, Germany. The conference brought together researchers and practitioners from different disciplines to tackle pressing issues revolving around forced migration.

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The Sylff Mikrokolleg on Forced Migration

Our three-member organizing committee consisted of Benedikt Behlert, Corinna Land, and Robin Ramsahye. Benedikt and Robin are PhD students in international law at RUB’s Institute for International Law of Peace and Armed Conflict (IFHV). Corinna is a PhD student at the Social Science Faculty. All of us are current or former fellows of the Sylff Mikrokolleg on Forced Migration at RUB. The Mikrokolleg was established in 2017 as an interdisciplinary group of four PhD students contributing to the field of forced migration studies from different angles through their individual PhD projects and through common projects like our conference. By now, it has assembled a network of eighteen members around itself, consisting of seven professors, three current Sylff fellows, and eight associates, two of whom are former fellows. Following the aim of Sylff to “nurture leaders who will initiate action to transcend differences and address issues confronting contemporary society,” the theme for this micro assembly of young researchers at the doctoral level was quickly found: forced migration, one of the greatest challenges facing the international community today.

An Interdisciplinary Conference Bringing Together Academia and Practice

Given the contemporary dynamics of human mobility, scholarly debates on “forced migration” gained new momentum over the last year. Controversial discussions often revealed a set of highly important challenges concerning theoretical, conceptual, and methodological approaches. They also confirmed that it was impossible to truly understand this multidimensional issue without intense cooperation between various disciplines.

Against this backdrop, our conference provided a highly necessary platform to discuss recent research findings and theoretical approaches. The fruitful academic exchange was enriched by perspectives of experts from the human rights and development practice who assured the real-world relevance of the debate.

Experts from humanities and law as well as representatives from civil society met in four consecutive workshops and raised yet unanswered questions at the heart of the matter: What is forced migration after all? How do we define it? How useful is distinguishing between legal and other categories? What is the role of affected individuals in forced migration studies? How can we mitigate the pressure to migrate? And what are our possibilities and responsibilities as academics and citizens to defend public discourse from ever more xenophobic and exclusionary voices?


Transitions of Concepts, Perspectives, Law and Space

Panel 1 chaired by Corinna Land, far right, examined the concept of forced migration in the present context.

Panel 1, titled “Transition of Concepts” and chaired by Corinna Land, reflected our interdisciplinary discussions as Kolleg fellows as to what our common project should focus on. It showed that the definitional clarity that a lawyer is trained to seek cannot be conjured out of thin air when it concerns such a contentious and complex term as forced migration. The contributions of all four panelists highlighted that forced migration is conceptualized today as an integral part of global social inequalities that continuously produce forced mobility. Focusing on the African continent, Serge Palasie, a practitioner with the nongovernmental organization Eine Welt Netz, presented a macrohistorical overview of reasons for such inequalities, drawing a link from European colonialist exploitation to contemporary hegemonic practices of states underpinning the global economic order. Christopher Boyd, a doctoral candidate at the University of Glasgow’s School of Law, built on this approach with a critique of the international legal system. As “part of the problem,” international law cements hegemonic political projects as law and is thus inherently limited in providing solutions. Dr. Isabella Risini, an international law researcher at Ruhr University Bochum, equally emphasized the complexity of forced migration in a globalized world in which political, economic, and social questions are tightly interwoven and argued for a moderate role of international lawyers. Dennis Dijkzeul, professor of organization and conflict research at the IFHV, reminded the audience of the importance of gaining a wider understanding of forced migration processes through the actors involved, including states and, increasingly, networks of international organizations and NGOs.

Benedikt Behlert, right, moderates Panel 2, which provided insights for protecting individual migrants’ human rights.

Panel 2, called “Transition of Perspectives” and chaired by Benedikt Behlert, moved the focus from the broader notion of forced migration to individual forced migrants. It explored the rise of actor-oriented theories in law and social sciences transcending the longstanding image of migrants and refugees as passive beneficiaries of humanitarian assistance. The panel acted as a forum to discuss what agency these groups have in defending their interests. Legal scholars Dr. Itamar Mann from the University of Haifa and Dr. Ekaterina Yahyaoui from the University of Ireland, Galway, presented their approaches. Taking writer Behrouz Boochani’s account of life in an Australian refugee detention center on Manus Island in the Pacific as a starting point, Dr. Mann illustrated cases of judicial activism in favor of refugees’ human rights. Having himself brought a claim regarding detention practices against Australian authorities before the International Criminal Court, he provided insights on ways in which international law may be used to further migrants’ rights. Dr. Yahyaoui explored theoretical approaches to circumscribing actors in need of international support, based on the “turn to vulnerability” in refugee and forced migration studies. Criticizing this approach for its lack of nuance, she argued for increased consideration of substantive equality as part of the established human rights framework, coupled with the theory of intersectionality, which allows for engagement with individual experiences instead of schematic categorizations.

Panel 3 chaired by Robin Ramsahye, far right, discussed relations between disputes of land rights and forced migrations.


Panel 3, themed on “Transition of Law” and chaired by Robin Ramsahye, zoomed in on the specific scenario of land allocation within populations and ensuing conflicts as an important driver of forced migration. International litigator Lucy Claridge of Amnesty International provided insights into the Endorois case before the African Commission on Human and Peoples’ Rights. As counsel, she represented members of the Endorois community, who had been displaced by the Kenyan government, in their quest for restoration of their historic land and compensation. Professor Jochen von Bernstorff from the University of Tübingen assessed current efforts to recognize the right to land in international law and examined the structural implications of land rights for the broader framework of international law. Dr. Kei Otsuki of Utrecht University explored the notion of infrastructural violence, pointing to problematic aspects of progressive legal frameworks in reaction to modernization and resettlement, which ultimately contributed to legitimizing and formalizing displacement. Mariana de Martos from the Max Planck Institute for Social Anthropology in Halle concluded the panel by analyzing the discrepancies between the law and its implementation through a case study of indigenous peoples’ land rights in the Brazilian Amazon rainforest.

Panel 4 chaired by Carolin Funke, far right, looked at the issue of migrants’ integration into their host communities.

Lastly, Panel 4, “Transition of Space” chaired by Carolin Funke, a post-doctoral researcher at the IFHV, opened the conference lens to the wider societal discourse. Both the findings of academic research and practical work on the issue of migration often seem to be drowned out by highly emotional and shrill debates, increasingly dominated by adherents of extreme positions. The panel contextualized these observations from the perspectives of academia, practice, and the media. Professor Ludger Pries of Ruhr University Bochum stressed that refugees and migrants are often either maligned or paternalized. He stressed that narrow views labeling them as intruders or target groups for transnational solidarity miss the mark, since migrants are actors in their own right, shaping their destinies. Building on this, journalist Isabel Schayani provided an account of her daily work covering the fates of migrants stranded on the European outposts that many of them first arrive at, as well as the lives of migrants who make it to Germany and endeavor to create a life for themselves. Complementing these perspectives, Claudia Jerzak from the University of Applied Sciences for Social Work, Education, and Care in Dresden presented examples of the process of integrating migrants into host communities through highly structured spaces, such as integration courses, and interchangeable, prestructured spaces, such as meeting cafés and self-organized spaces where refugees act as hosts and organizers.

Invaluable Experiences and Much Gratitude

The conference has afforded us a number of lasting experiences and benefits. Securing the funds for and organizing the conference sequence enabled us to familiarize ourselves with many tasks that are of crucial importance in the academic world. Having conceptualized several panels in form and content under an overarching theme, reached out to people and secured commitments of participation, organized international travel, and coped with several last-minute cancellations, we feel we have gained insights that can only be achieved through action. The interdisciplinary character of the conference, merging social scientific and legal approaches to forced migration, was initially challenging to conceive but turned out to be very beneficial. Throughout the phase of substantial preparation, we had to transcend our own disciplinary boundaries in delimiting the panels in a way that worked from the perspectives of both law and social sciences. We were glad to see that the conference participants did the same by engaging in fruitful discussions. Beyond the immediate exchange in the panel discussions, the conference enabled us to expand our professional networks and make valuable contacts through numerous occasions for informal discussions with our guests, many of whom we have arranged to stay in touch with for future cooperation.

We are indebted and very grateful to a number of people and organizations for the conference’s success. First, we would like to express our gratitude to the Sylff Association and the Tokyo Foundation for setting up the Sylff Mikrokolleg on Forced Migration and giving us the opportunity to research and express our ideas through their generous financial and administrative support. A special thank you to Sylff director Yoko Kaburagi is in order for attending our conference and encouraging follow-up exchange.

We also very much appreciate the help of RUB’s Research School, which sponsored the conference and continuously supported us with logistics and procedures, most importantly in the person of Dr. Sarah Gemicioglu.

We would also like to warmly thank all associate fellows and researchers involved with the Sylff Mikrokolleg on Forced Migration and who made valuable contributions to the development of the conference. We are glad to see that there is a lot of interest in our Kolleg and that many promising young researchers stand ready to take over and move it forward still.


Behlert's related article "The State and the Rights of Individuals: Pursuing Research at the Graduate Institute Geneva" can be read at www.sylff.org/news_voices/27786/.

Celebrating the International Labor Organization Centenary with a Conversation about Labor Standards, Health, and Safety at Work

December 11, 2019
By 26658

Using an SRA award, Olívia de Quintana Figueiredo Pasqualeto, a 2019 Sylff fellow from the University of São Paulo, visited the International Labor Organization (ILO) in Geneva to discuss aspects of her doctoral thesis with specialists in international labor standards and collect bibliographical references on the subject that are not accessible from Brazil. In this article, she describes what motivated her to study the influence of international law on the protection of health and safety of workers and the application of Convention No. 155 of the ILO by labor courts in Brazil; the importance of the ILO visit and its contributions to her research; and the next steps to take after visiting the ILO.

* * *

Background and Motivations

The desire to understand how domestic law dialogues with international law originates in reflections on some of the results found in studies prior to my PhD research, especially during the conclusion of my master’s dissertation,[1] which showed that the programs, goals, and concepts set forth by the International Labor Organization on green jobs[2] are rarely observed by member states of the organization, as well as by institutions that handle the subject. Moreover, in my master’s research, I was able to find that occupational health and safety standards are most often breached in green jobs. From these conclusions came the question of the extent to which international law is applied in Brazil and influences the protection of health and safety at work.

In front of ILO building entrance.


To answer this proposed question, the object of study had to be delimited. I decided to study a specific international standard—ILO Convention No. 155 (C155), the first ILO convention that addressed health and safety at work generally, holistically, and preventively (ITCILO, 2018, p. 2)—and its application by the Brazilian labor courts (who exercise judicial power over labor subjects), since jurisdictional activity is one of the most concrete ways of giving effectiveness to international law (Valticos, 1955; Valticos, 1977; Potobsky, 2004). The idea is to analyze whether this international standard offers greater protection to worker health and safety and what the benefits are of applying it.

Considering the theme to be studied, it occurred to me to visit the ILO, the international body that prepared the C155, is responsible for monitoring its effectiveness, brings together great experts, and has the most specific bibliographic collection on the subject.

 

Visiting the ILO: An Opportunity to Dialogue with Experts and Deepen the Theoretical Framework

The proposed SRA project had two main objectives: to discuss with ILO experts the preliminary results of my research and to complement the bibliographic references of my thesis.

With ILO experts from NORMES, after our conversation.

To achieve the first objective, a conversation was scheduled with some of the ILO’s legal officers from the International Labor Standards Department (NORMES). In this dialogue, I had the opportunity to ask the following questions: How can we make international labor standards more effective? Is judicial activity an important form to make it (more) effective? In Brazil, I perceive a certain lack of awareness about international labor standards (C155), including among judges; do you have the same impression, and does that make sense to you? This may not be exclusive to Brazil; what do you see in other countries? What are the advantages of using international labor standards (C155) in judicial decisions? How does the ILO plan to increase the use of Convention No. 155, what are the ways of bringing labor standards of the ILO closer to domestic law, and is there any strategy focused on jurisdictional activity?

My conversation with these experts was very productive. I was welcomed by three legal officers, and we debated the issues I had proposed for over two hours. Some of their answers reinforced and complemented some of the conclusions of my thesis, and an observation made by one of them helped me rework one of my research hypotheses. From this conversation, I structured and wrote the last chapter of the thesis, which is under review.


In addition, at the end of the conversation, one of the legal officers put me in contact with another important ILO department called the Labor Administration, Labor Inspection and Occupational Safety and Health Branch (LABADMIN/OSH), specializing in occupational health and safety, with which I was able to schedule another meeting that I had not initially foreseen. This second meeting was also very helpful, as we talked about the possibility of occupational health and safety being included in core labor rights.

It was highly important for the research to have this dialogue with people from outside my academic circle and have the opportunity to “test” the results that I have been finding. This helped me rethink some categorical statements I had made and indicated that the path I am tracing for the investigation is coherent.

Seeking to reach the second objective of my SRA project, I requested access to the ILO library, which allowed me not only to consult the library’s physical collection but also to use its space to study and write the thesis everyday while I was in Geneva. I was able to make a systematic collection of bibliographic material, having found works that are not available in Brazil. Being able to turn to these theoretical references—especially older books by Nicolas Valticos, Wilfred Jenks, and Georges Scelle—allowed me to complement the foundation of some ideas developed throughout the first and second chapters of the thesis, especially with regard to judicial use of ILO conventions. In addition to the theoretical framework, I had access to various historical documents regarding the approval of Convention No. 155 and ILO publications on occupational health and safety in general.

Artwork from India in the ILO garden.

 

Next Steps

With the end of research abroad, I am finalizing the writing and review of the thesis, with the submission of my dissertation scheduled for December 2019 and graduation in March 2020.

In addition to completing the research, the ILO visit allowed me to structure two future projects: one originating from the meeting with LABADMIN/OSH, which opened a channel for material exchange and the possibility of developing a joint article in the future about “health and safety at work as a fundamental right and principle at work”; another directed to the publication of reviews (in Portuguese) of the works I consulted that are not accessible from Brazil, aiming to share with the Brazilian academic community this content not yet available in the country.

 

Conclusion

Finally, I point out that, besides the activities performed and described above, my visit to the ILO building full of artwork related to human labor, especially in the year of its centenary, gave me even more inspiration and motivation to complete the doctorate, think about new research objects, and plan future projects.

 

References

ITCILO (International Training Center of the International Labor Organization). 2018. International labour law and domestic law. Turin: ITCILO.

Valticos, N. 1955. Conventions internationales du travail et droit interne. Revue critique de droit internationale privé, vol. 2, 251–288.

Valticos, N. 1977. Droit international du travail et droit interne français. Travaux du comité français de droit international privé, vol. 34, no. 1973, 11–37.

Potobsky, G. V. 2004. Eficacia jurídica de los convenios de la OIT en el plano nacional. In Les normes internationales du travail: un patrimoine pour l’avenir—mélanges en l’honneur de Nicolas Valticos, by J.C. Javillier, B. Gernigon, and G.P. Politakis. Genève: Bureau International Du Travail, 287–305.

 [1] This master’s dissertation is titled “Worker protection in green works,” defended at the Faculty of Law of the University of São Paulo on November 7, 2016.

[2] “Green jobs” is an expression created by the ILO to designate decent forms of work dedicated to the continuous and efficient protection and repair of the environment (natural, artificial, cultural, and labor) in the most varied economic activities, regardless of the worker’s hierarchical position and legal relationships. These jobs must be socially, environmentally, and economically sustainable.

Insights into the Economic and Legal Dimensions of Public Contractual Relationships in Europe

December 5, 2019
By 27004

The aim of my doctoral dissertation research—carried out with the support of a Sylff fellowship—is the examination of contracts concluded by the state and other public bodies in Europe. Particular attention is given to concessions and the interplay between various national legal traditions and the law of the European Union. My work focuses on the legal specificities of these contracts and seeks to understand important socioeconomic connections of this field of law, such as the different modes of the state’s involvement in the economy and the different ways public services are organized, and where the boundaries between the state and market are set. In the following, I would like to give a brief introduction to this topic.

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In the evolution of the law of public contracts at the national and European level, the organization of public services has always played an important part.

Many services that are now considered public services first appeared as private initiatives. As capitalism developed, urbanization and population growth resulted in an ever-increasing number of tasks that public administrations needed to organize for the smooth functioning of society. The state’s involvement in the economy became more active in the first half of the twentieth century owing to two world wars, economic crises, the growing need for public services, and the bankruptcy of private-sector service providers. As welfare states flourished in Europe in the 1960s and the first half of the 1970s, the provision of public services came to be carried out mainly in the public sphere, either by state bodies, local authorities, or by organizations closely related to them.[1]

The Chain Bridge, one of the iconic monuments of Budapest, Hungary, is an example of a private initiative taking the lead in building public infrastructure in the nineteenth century. Its construction was funded and carried out by the Chain Bridge Joint Stock Company, owned by private shareholders. (Photo by Gyurika, CC-BY-SA-2.5, https://commons.wikimedia.org/wiki/File:Lanchid-budaipiller.jpg)

Challenges to the concept of the European welfare state emerged in the 1970s, as the oil crises of 1973 and 1979 triggered a new way of thinking about economic policy. The organization of public services according to market principles, outsourcing, and the involvement of the private sector became widespread, accompanied, in certain cases, by the privatization of assets serving as the basis of a public service. An important factor encouraging these processes was the law of the European Union. The most intensive period of regulation in the European Union to build up an internal market of undistorted competition started in the early the 1990s. An important part of this was the liberalization of network-based public services and the regulation of public procurement, which became more detailed and effective through the adoption of new directives.[2]

The reform of public services and the growing importance of contracting out became a general trend in Europe, but they unfolded differently in the individual member states of the EU, influenced by the respective traditional approaches to delivering public services.

In Germany, public services of an economic nature are traditionally provided by so-called Stadtwerke. These are companies of local authorities (earlier organized also by public law) that provide the population of a geographical area with different utilities. In the field of social services, cooperations of charitable organizations were a traditional form of service provision. The trend of privatization has affected these long-established structures, and private operators now play an important role in the delivery of public services. As a result of EU-led liberalization, these markets also had to be opened up to competition—or at least adjusted to a competition-driven legal system. However, certain sensitive areas, such as water supply and ambulance services, were protected by public policy from the encroachment of market forces by the EU.

Unlike Germany, France did not develop a strong utilities’ sector at the local level. The system of French local authorities was very fragmented, and their scarce resources encouraged the delegation of public services—mainly in the form of concessions—to private providers from as early as the middle of the nineteenth century.[3] The French state’s interference in the economy was particularly strong after World War II; extensive nationalization took place ,which largely affected the utilities, but state involvement was significant even in the competitive parts of industry and in the banking and insurance sectors.[4] Due to this composition of public property and the historic guiding theory of service public in public administration, the privatization of the 1980s and 1990s affected primarily the competitive sectors of the economy, not the utilities. The French constitution of 1946 expressly stated that monopolies and companies providing national public services and the assets necessary to run these services must remain state property.[5] A characteristic of the French model is that the utilities market is dominated by a few large companies, which are also important participants in the EU-wide market of service concessions.

The Channel Tunnel links Great Britain with continental Europe. The infrastructure project, negotiated in the middle of the 1980s, was a pioneer of large-scale, concession-type contracts using the project finance technique relying on the proceeds of the project. (Photo by Florian Févre from Mobilys, CC BY-SA 4.0, https://en.wikipedia.org/wiki/File:TGV_TMST_3011-2_-_Sortie_Tunnel_sous_la_Manche_%C3%A0_Coquelles.jpg)

In Britain, the common law legal system (which follows a different concept than the legal systems of continental Europe) evolved in parallel with another type of economic development. From the outset, capitalism developed with much less state involvement than in Germany or France. Margaret Thatcher, who became prime minister in 1979, was a pioneer of a neoliberal economic policy. She implemented reforms to achieve a more economic and effective public sector, encouraging contracting-out, private-sector involvement in public projects, privatization, and the liberalization of monopolies in utilities. The British administration also developed innovative legal concepts like unbundling and public-private partnerships (PPPs) that later spread to the rest of Europe and beyond.

Nowadays, EU law has a decisive impact on how member states can organize public services. Although there is undoubtedly a push toward more competition and privatization, there are also elements of EU law that try to seek a balance between the principle of undistorted competition and the will of member states to preserve their ability to decide on the most appropriate way to provide public services with different degrees of state involvement and to protect certain traditional elements of their systems.

The Law of Public Contracts

The law governing the contracts of public bodies is also shaped by changing economic circumstances, the increasing recourse to contracting-out, and the impact of EU law. There is a general trend towards unification, mainly deriving from EU public procurement law, whose focus is to sustain undistorted competition in public purchases through transparent procedural rules. But this process also accommodates different legal traditions in national laws.

PPP contracts were widely used from the 1990s to develop different types of public infrastructure, such as motorways. However, there were always concerns whether PPPs could deliver value for money for the public sector. (Photo by Kroock74, CC BY-SA 3.0, https://commons.wikimedia.org/wiki/File:Toll_booths_in_the_UK.jpg)

The most developed legal tradition relating to public contracts can be found in the French legal system in the concept of administrative contracts. What sets this legal regime apart is that contract rules of public authorities must also reflect the public interest and guarantee the proper functioning of public services. Administrative contracts form a distinct category apart from private law contracts, and legal disputes relating to them fall within the jurisdiction of administrative courts. Special rules are applicable to these contracts besides the underlying law of the French Civil Code. The main feature of administrative contracts is that the parties to the contract are not in an equal position and that the law acknowledges certain prerogatives for public authorities (e.g., a unilateral power of modification in case it is so required in the light of the public interest). However, the rules of administrative contracts must also fairly protect the interests of the contracting party by sustaining the economic balance in case of unforeseen circumstances and by compensating the private party in case the administration exercises its special rights.

The German legal system has traditionally been based on a strict distinction between private and public law. Its main approach to the contracts of public authorities is that public administration is also subject to private law when it takes part in economic relationships. This way of thinking has not impeded the acknowledgement of certain specificities of public contracts in connection with the public interest. The emphasis in German law is on the requirement that public authorities give due consideration to human rights even if they are acting under contract. In order to apply public law requirements to private law contracts, German courts incorporated these public law principles into general private law clauses. This solution of taking into account public principles in the interpretation of private law is called Verwaltungsprivatrecht in legal literature.[6]

One difference we can observe in English law is that its evolution is much more based on the needs arising from private economic activity than in continental contract laws. In the system of common law, it follows from the principle of the rule of law that the same law applies to both the state and private parties when they take part in economic relationships. As a result, even the existence of administrative law was recognized much later in England than in Germany or France. The specificities of public contracts appear in the principles elaborated by the courts and in codified laws, but there is no general legal concept or theory on how the public interest is considered in relation to public contracts.  

In spite of the conceptual divergences, common features can also be observed in the main European legal systems.[7] These elements all relate to the public interest and represent two main aspects of public contracts. On the one hand, public bodies need more freedom to act in order to decide on public matters and keep their competence to act as the public interest requires. However, when public interest warrants a derogation from contractual obligations, the private party must be compensated fairly. On the other hand, the administration cannot circumvent its public law obligations—such as respect for human rights—even if it acts in accordance with contractual provisions.

EU law also affects significantly how the traditional principles of public contracts can be applied in the member states. It is possible to maintain different approaches to public contracts in individual legal systems, but their special points of view can only apply within the boundaries set by EU law.

 

[1] Hellmut Wollmann and Gérard Marcou, “Introduction,” in Wollmann and Marcou (eds), The Provision of Public Services in Europe: Between State, Local Government and Market, Edward Elgar Publishing, Cheltenham, 2010, p. 5.

[2] Council Directive 89/440/EEC of July 18, 1989, amending Directive 71/305/EEC concerning the coordination of procedures for the award of public works contracts; Council Directive 88/295/EEC of March 22, 1988, amending Directive 77/62/EEC relating to the coordination of procedures on the award of public supply contracts and repealing certain provisions of Directive 80/767/EEC; Council Directive 92/50/EEC of June 18, 1992, relating to the coordination of procedures for the award of public service contracts; Council Directive 93/36/EEC of June 14, 1993, coordinating procedures for the award of public supply contracts; Council Directive 93/37/EEC of June 14, 1993, concerning the coordination of procedures for the award of public works contracts; Council Directive 93/38/EEC of June 14, 1993, coordinating the procurement procedures of entities operating in the water, energy, transport, and telecommunications sectors.

[3] Attila Harmathy, Szerződés, közigazgatás, gazdaságirányítás, Akadémiai Kiadó, Budapest, 1983, p. 29.

[4] For a detailed account of the different approaches to public ownership in the economy after 1945, see Leigh Hancher, “The Public Sector as Object and Instrument of Economic Policy,” in Terence Daintith (ed), Law as an Instrument of Economic Policy: Comparative and Critical Approaches, Walter de Gruyter, Berlin, 1987, pp. 165–236. 

[5] Ninth paragraph in the preamble of the Constitution of 1946: “Tout bien, toute entreprise, dont l’exploitation a ou acquiert les caractères d’un service public national ou d’un monopole de fait, doit devenir la propriété de la collectivité.”

[6] For a comprehensive analysis of Verwaltungsprivatrecht, see Ulrich Stelkens, Verwaltungsprivatrecht—Zur Privatrechtsbindung der Verwaltung, deren Reichweite und Konsequenzen, Duncker & Humblot, 2005.

[7] See also Rozen Noguellou and Ulrich Stelkens (eds), Droit Comparé des Contrats Publics / Comparative Law on Public Contracts, Bruylant, 2010.

Gender-Based Violence: Rethinking Social, Legal, and Healthcare Services in Jordan

November 1, 2019
By 25271

In Jordan, legal reforms have been promoted to achieve gender equality, which have led to improvements in female participation in education. However, there is still a big gap to achieving women’s empowerment in a practical sense, as cultural and religious norms encouraging gender inequality prevail in the society. The norms prevent women from social and political participation and even justify gender-based violence toward women. Dr. Tayseer Abu Odeh, a 2007 Sylff fellow at the University of Jordan, held a conference on July 16, 2019, at the University of Jordan to tackle the social issue by rethinking social, legal, and healthcare services. The conference was funded by Sylff Leadership Initiatives (SLI).

*     *     *

Background and Objectives

It is my great pleasure to say that this conference was the first one organized in the Middle East by Sylff Leadership Initiatives, as one of the substantial and key conferences that seek to point to future directions in the field of gender studies and gender-based violence in Jordan. The conference is intended to address and examine the very implications of the term gender-based violence, which is defined in Guidelines for Integrating Gender-Based Violence Interventions in Humanitarian Actions (Inter Agency Standing Committee, 2015) as follows: “any harmful act that is perpetrated against a person’s will and that is based on socially ascribed (i.e. gender) differences between males and females. It includes acts that inflict physical, sexual or mental harm or suffering, threats of such acts, coercion, and other deprivations of liberty. These acts occur in public and in private.” With that in mind, this conference aims at addressing gender-based violence by assessing and rethinking social, legal, and healthcare services in Jordan.

The conference was held on July 16, 2019, at the University of Jordan.


According to a study conducted in 2015 and published in 2016 by United Nations Women titled “Strengthening the Jordanian Justice Sector’s Response to Cases of Violence against Women,” only 3% of victims of gender-based violence in Jordan seek official support from the police after being traumatized by any act of violence. Similarly, National Council for Family Affairs conducted an important report titled “Status of Violence against Women in Jordan” in 2008. It indicates that National Forensic Medicine Center in Jordan “deals with an average of 700 cases of sexual assault against women annually” and that “the number of murdered women recorded was 120 in 2006, including 18 cases classified as crimes of honor.” Ironically, the actual cases of physical and emotional abuse outnumber these statistics for many sociopolitical and cultural reasons. As a tribal and conservative society, many Jordanian families do not report these cases to protect their superego and collective image at the expense of the victim’s individual trauma.

 

The audience consisted of people from all walks of life.


Opening Remarks

Dr. Abeer Dababneh, director of the Center for Women’s Studies at the University of Jordan, opened the conference by stressing the significance of the event in raising the bar of social and gender consciousness in Jordan in terms of the available services offered by the three major sectors in Jordan: law, justice, and social development.

The president of the University of Jordan, Dr. Abdul-Karim Al Qudah, delivered a speech on how the University of Jordan plays a crucial role in empowering women and giving them a space for sociopolitical representation. He argued that the university is meant to be a feminist and intellectual hub for women’s equality, justice, and creativity, where many female students and teachers have a local and global reach and outshine their counterparts in every field of knowledge.

Moreover, Justice Minister Bassam Talhouni placed an emphasis on the significant role being played by the Ministry of Justice to fight a number of structural obstacles that confine and hinder gender equality. Although Jordan has witnessed some degree of local progress on gender issues, gender-based violence in Jordan is still a serious issue that should be resisted by national institutions at all levels.

Opening remarks.


Conference

The conference held on July 16, 2019, at the University of Jordan sought to develop and implement a more dynamic and practical strategy and method to protect Jordanian survivors who have been repeatedly traumatized by gender-based violence. Accordingly, the conference consisted of four panels:
Panel 1. Legal and Justice Services in Jordan
Panel 2. The Role of National, International, and Civil Society in Jordan
Panel 3. Gender-Based Violence in the Healthcare Sector
Panel 4. Gender-Based Violence in the Social Development Sector

In the first panel, all panelists stressed the way in which the sociocultural and legal contexts impact the whole process of gender-based prosecution in Jordan. The panelists also addressed how the Family Protection Program and other government institutions facilitate legal services for gender-based violence survivors. Meanwhile, they also underscored the limitations of these institutions and how such limitations should be treated locally.

The second panel was premised on the role of national, international, and civil society in Jordan. The panelists highlighted the significant role played by the National Council for Family Affairs and other government and nongovernment institutions vis-à-vis the multiple family protection projects in Jordan. They also emphasized the urgent need to revise the legal system and the alternative ways that this could be carried out to strengthen cooperation between these institutions toward fighting gender-based-violence in Jordan. In a similar vein, the third panel examined the multiple healthcare services offered by the Ministry of Health for victimized women in Jordan. Furthermore, the panelists concretely addressed the cultural and institutional flaws that hinder the process of fighting violence against women in Jordan. The panelists of the last session attempted to explore the way in which the social development sector engages in several rehabilitative counseling programs by training legal employees who are in charge of gender-based violence cases in Jordan. The panelists shed light on the psychological and professional competence of public employees.

 

The second panel, “The Role of National, International, and Civil Society in Jordan Legal and Justice Services in Jordan.”


Open Discussion

Each panel had an open discussion, in which many members of the audience gave compelling and engaging questions and remarks on gender-based violence in Jordan. For instance, an Egyptian activist attempted to challenge the dominant cultural paradigms of gender duties and roles that have been dogmatized and maintained by religion, government, and culture in Jordan. Another graduate student of gender studies was curious to understand the cultural and institutional circumstances that have shaped gender trouble in Jordan. Dr. Tayseer Abu Odeh, the organizer of the conference, responded to this question by arguing that gender trouble emanates from the cultural and social dogma of stereotypes and some religious misinterpretations that deem gender roles as being fixed and unchangeable. Thus, these dogmatic gender roles should be dismantled and challenged by reforming educational pedagogy, incorporating the most up-to-date research findings on gender studies into educational curricula in terms of the cultural and political context of gender-based violence in Jordan, gender equality, and statistical cases.


Final Recommendations Suggested by Participants

The participants agreed on a set of feasible and compelling recommendations that meet the most pressing issues of gender-based violence in Jordan. The media, for instance, should play a crucial role in sustaining and disseminating a profound discourse that offers a counternarrative to gender-based violence that should include updated statistics on all acts of gender-based violence in Jordan, hosting influential feminists to discuss major issues of gender-based violence, and evaluating the kinds of services offered by the three sectors of healthcare, justice and police, and social development. Similarly, the Ministry of Higher Education should be obliged to incorporate a new course on gender-based violence through which university students will be exposed to a wealth of legal, cultural, and epistemological knowledge on gender-based violence in Jordan regarding the discursive quantitative and qualitative circumstances that motivate any act of violence against women in Jordan. Moreover, the panelists stressed the significance of creating a professional national monitoring system through which the risk of gender-based violence in Jordan could be identified and assessed. Several panelists suggested a vibrant institutional and legal collaboration among all government and nongovernmental organizations that are in charge of survivors and victimizers of gender-based violence.

Dr. Tayseer Abu Odeh also stressed the importance of establishing a research database that would function as a professional research platform encompassing all reports, documents, and stories that address and document gender-based violence and assess national services in Jordan. A number of panelists argued that founding a national counseling office for gender-based violence at all universities should be a national priority. Drawing on the agenda of this conference, some of the scholars recommended outlining and endorsing a national manifesto agreed upon by all governmental and nongovernmental institutions that are in charge of fighting gender-based violence in Jordan. It would be a national and academic manifesto that legislates and outlines the national and humanitarian roles, duties, authorities, and agendas among various national partners that are concerned with gender-based violence.


Conclusion

It has been noticed that the vision of gender-based violence held by the government and bureaucracy in Jordan is somewhat limited and dogmatic. Several participants standing for government institutions were obsessed with a discourse of denial in which their findings seemed to underestimate the serious risk of gender-based violence in Jordan. Conversely, independent scholars and gender activists and leaders expressed an opposing view that challenges the one suggested by government representatives. With that in mind, a number of panelists suggested putting forward and organizing another forum in the near future that would reexamine gender-based violence in Jordan from a radical sociopolitical perspective. Drawing on Lila Abu-Lughod’s feminist paradigm, our anticipated conference would be mainly premised on the intersections between globalism, gender politics, and the political economy.

The conference caught the attention of many international and national feminists, scholars, lawyers, activists, senators, officials, policy makers, and academics. It also drew considerable interest from the media in Jordan. The conference was covered by the most influential and popular Jordanian media outlets that include, but are not limited to, the Jordan Times, Petra News Agency, Alrai, Addustour, Alghad, and the University of Jordan’s website. All media reports released on the conference noted the significance of the conference in fighting all forms of gender-based violence in Jordan.

Taking the major proceedings and recommendations of the conference into account, I would argue that gender-based violence in Jordan is still a serious sociopolitical and cultural problem that should be faced and resisted by all levels of the private and public sectors. In a nutshell, there should be a substantial strategic collaboration between all government and nongovernmental institutions. With that in mind, in my capacity as a Jordanian writer, activist, and intellectual, I am determined to keep fighting this crisis in every possible way and exert tremendous efforts to raise cultural and social consciousness about gender-based violence in Jordan. 

 

Dr. Tayseer Abu Odeh, an organizer of the conference.


References

“Strengthening the Jordanian Justice Sector’s Response to Cases of Violence against Women,” United Nations Women, 2016.


　　　　　　　　　　　　　　　　　　　*     *     *


Detailed arguments made in the panels are summarized below.

Panel 1: Legal and Justice Services in Jordan

The first panel of the conference was titled “Legal and Justice Services in Jordan.” Asma Khader, a leading human rights lawyer and former minister of culture, addressed the way in which gender-based prosecution is carried out in Jordan. Khader shed light on the social, cultural, and legal contexts of juridical prosecution in Jordan. Khader argued that many prosecutors who are in charge of gender-based violence cases and the implementation of the legal system lack sufficient legal, sociopolitical, and cultural literacy and professional training.

The second speaker, Reem Abu Hassan, a leading human rights lawyer and former minister of social development, discussed gender violence from a legal perspective. Drawing on her perspective, Abu Hassan also contended that cultural and social stereotypes are considered to be one of the most pressing issues that have shaped the various structures of gender trouble in Jordan.

The third speaker of this panel was Fakhri al Qatarneh, director of the Family Protection Program. Qatarneh examined the role of the program in facilitating the multiple services that are offered for gender-based violence survivors in Jordan. Unlike Khader and Abu Hassan, Qatarneh argued that the increasing number of complaints that have been recently reported to the Family Protection Program is an indicator of people’s awareness of gender-based violence in Jordan. Qatarneh’s argument sounded somewhat contradictory, as it confirmed an ideological discourse of denial that has been sustained by government officials whenever they address gender-based violence in Jordan.

Panel 2: The Role of National, International, and Civil Society in Jordan

The second panel addressed the role of national, international, and civil society in reinforcing sufficient and effective services that have to do with gender-based violence in Jordan. The first speaker was Yara Al Deer, a researcher at the Arab State Regional Office of the United Nations Population Fund. Al Deer pointed out that national and local institutions of healthcare, justice, and social development sectors should collaborate and cooperate more effectively to implement a range of feasible procedures of social, psychological, and legal support for survivors.

The second speaker, Dr. Mohammad Fakhri Meqdady, secretary general of the National Council for Family Affairs in Amman, highlighted the role of the NCFA in fighting gender-based violence in Jordan in light of various social and political transformations. Meqdady noted that a family protection project was initiated to protect a large number of survivors in Jordan. He also stressed the importance of collaboration among government and nongovernmental institutions that fight gender-based violence in Jordan from statistical, procedural, and legal perspectives.

Dr. Salma Nims was the third speaker of this panel. She is secretary general of the Jordanian National Commission for Women in Jordan. She addressed the dynamic and vital way in which the political and social roles of the Jordanian National Commission for Women are played. According to Al Nims, the commission is in charge of the following responsibilities: ensuring a convenient and applicable environment, revising the legal system, opening up a powerful and face-to-face dialogue with the government, building up an effective dialogue with the civil society in order to agree on specific legal amendments and revisions, and enforcing an active form of cooperation among all government and nongovernmental institutions to fight gender violence in Jordan. Such a dynamic role, however, is diminishing due to lack of institutionalism and bureaucracy.  

Dr. Ibrhim Aqil, director of the Noor Al Hussein Center for Family Health Care, was the last speaker of this panel. Aqil explored how civil society can imagine and offer alternative and feasible services for survivors of gender-based violence in Jordan. Aqil juxtaposed the interplay between data of gender-based violence, getting access to these data, and the right to get adequate and efficient services. He also placed an emphasis on the indispensable nature of multiple services that should be offered for survivors. These services include protective, educational, legal, administrative, social, and psychological procedures.

Panel 3: Gender-Based Violence in the Healthcare Sector

The third panel was titled “Gender-Based Violence in the Healthcare Sector.” Dr. Malak Al Ouri, director of Women’s Healthcare in the Ministry of Health, examined the role of the Ministry of Health in the reinforcement of health services for traumatized women in Jordan. Al Ouri discussed how the family violence department plays a vital role in handling gender-based violence issues in Jordan. In addition, a number of professional committees have been initiated by the ministry to follow up on all cases of gender violence in Jordan and make sure that each case is reported and documented immediately and rigorously. However, there is a built-in flaw in the institutionalized and scholarly documentation of such kind of cases arising from governmental bureaucracy, cultural stigmatization, and lack of cooperation between government and nongovernmental institutions regarding gender-based violence.

Dr. Maha Darwish, an expert on gender-based violence with the United States Agency for International Development, also addressed alternative and feasible services to rehabilitate gender-based victimizers from a psychosocial perspective. Darwish suggested psychological procedures to rehabilitate victimizers and ensure a professional training program designated by the Ministry of Health and other local institutions. 

Panel 4: Gender-Based Violence in the Social Development Sector

Panel four was concerned with gender-based violence in the social development sector. Amer Hiasat, director of the Social Development Program in Amman, discussed the multiple ways in which social protection for gender-based victims is maintained and carried out by the Ministry of Social Development. Hiasat asserted that the ministry has a crucial role in offering beneficial services for survivors of gender-based violence in Jordan. Nevertheless, this role is still flawed due to multiple bureaucratic and institutional inconsistencies.

Meanwhile, Eva Abu Halawa, director of Mizan Organization for Women’s Rights, put forward a number of suggested methods that civil society should use to protect survivors of gender-based violence. She contended that raising gender consciousness among people is a national priority that should be taken into account in fighting gender-based violence in Jordan. She also suggested creating more specialized counseling departments for training legal prosecutors and employees who handle cases of gender-based violence.

The last speaker of this panel was Dr. Amal Al Awawdeh, a professor of gender studies at the Center for Women’s Studies, University of Jordan. She interrogated the professional and technical competence of government social specialists who are in charge of handling gender-based violence in Jordan. Her findings are premised on the lack of effective professionalism among government social specialists and how such a flaw impacts social and counseling intervention and protective programs that have been employed by the Ministry of Social Development.

To Unmake a Victim: Criteria for the Successful Social Reintegration of Human Trafficking Victims

April 3, 2018
By 24051

Rui Caria is a Sylff fellow currently enrolled in a master’s program at the University of Coimbra in Portugal. He is currently addressing research in the field of criminology, specifically victimization and social reintegration of human trafficking victims, which should be a legitimate policy to protect victims and prevent retrafficking.

***

Introduction

I am currently doing my dissertation for a master’s in criminal law. The title is “The social reintegration of human trafficking victims,” a theme that deals not only with international and European criminal law, criminology, and victimology, but also shines the light on how criminal policy should be carried out in order to find a balance between victim protection and criminal prosecution.

The goal of my research is to advance a criminal law policy oriented by the idea of social reintegration of the victims, capable of harmonizing and bettering the different mechanisms of victim protection, while at the same time helping the fight against trafficking.

To reach this goal, I explore the current international legislation on human trafficking and compare policies from various countries to see which are most effective and which to avoid. I also explore the real circumstances of the victims to paint a clear picture of their vulnerability, followed by an examination of the different concepts of vulnerability in various legislations to see which one is the most suitable for policy making. To conclude, a proposal of a concept of social reintegration is advanced, as well as an attempt to justify its purpose in criminal policy, and a study of the various criteria that in my understanding contribute to its success.

 

What Is Human Trafficking?

The isolation of the victim. (Photo courtesy of Pexels.com)

Human trafficking is one of the most devastating crimes occurring in the international landscape, not only for the gravity of its offenses but also for the way it exploits the victims through their vulnerability. It is considered a crime against personal liberty, transforming human beings into things and using them as such.

According to international and European law—Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol) of 2000, and Article 2 of the Directive 2011/36/EU—trafficking in human beings refers to the recruitment, transportation, transfer, harboring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power, or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person for the purpose of exploitation.

This exploitation includes the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, including begging, slavery or practices similar to slavery, servitude, exploitation of criminal activities, or the removal of organs.

The definition of what constitutes human trafficking is important to determine what actions fall under the scope of the crime, as well as which victims.

 

Victims and Their Vulnerability

The despair of the victim. (Photo courtesy of Pexels.com)

According to the European directive and the Palermo Protocol, a position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved. What, then, are some of the factors that contribute to the special vulnerability of human trafficking victims?

A brief criminological analysis will help us reach an understanding. By and large, human trafficking victims are people in situations of great economic struggle and social unbalance, originating from countries or regions that are both economically and socially debilitated. In the face of these circumstances, these people seek countries with better conditions where they might improve their lives, and it is with this idea that they fall in the trap of human trafficking.

Their being in a strange country or region is another factor of their vulnerability, for they lack knowledge of this new territory and suffer from geographical disorientation. Also, traffickers make them afraid of violence on themselves and their families. Another fear is that their community might find out about their activities in prostitution. Finally, a distrust of the local police and judicial authorities is fed by the traffickers that, along with the previous factors, leaves these people extremely dependent on them, which helps reinforce the control of their captors.

Various personal circumstances can contribute to the acceptance of their situation. Victims might have developed drug dependency during their stay in a foreign country, which makes them crave income so that they can satisfy their needs. They might also be economically indebted to their traffickers for having brought them to a new country, so that they need to work and suffer the exploitation to pay off that debt; this is a common stratagem among traffickers. Studies have shown that there are very reduced percentages of voluntary exercise of prostitution, indicating dark figures of exploitation in this area.

In light of these factors, Article 3 of the Palermo Protocol deems the consent of the victims irrelevant to excuse the criminal action when it is used in the context of this special vulnerability.

 

Social Reintegration as a Criminal Policy Goal

The shame of the victim. (Photo courtesy of Pexels.com)

It is this special vulnerability of the victims of human trafficking that, in our understanding, justifies the need for social reintegration, given the potential for prevention through this process. Before developing these justifications, we must define social reintegration: it is a process by which secondary victimization is maximally reduced throughout the victim’s journey before, during, and after criminal procedure, with the goal that they are not further victimized and, especially, that they are not retrafficked.

Secondary victimization, which social reintegration works to avoid, is a process by which, through complex selection and stigmatization by—but not only by—the judicial process and its entities, a person assumes the stereotype of a victim, suffering further victimization as a consequence of the way she regards her own identity. Human trafficking victims are very susceptible to this kind of process due to the stigmatization they suffer from their sexual work, the constant abuse from their traffickers, and their placement in the illegal market.

So, to sum up, the special vulnerability of the victims, whose factors we previously referred to, make victims more prone to stigmatization and mistreatment, which results in secondary victimization, therefore justifying the need for social reintegration. This is the humanistic or human rights approach aspect present in this process. The criminal law approach aspect, on the other hand, may manifest itself by justifying this minimization of secondary victimization as a form of prevention of future crimes. The logic we put behind this is the following: if social reintegration prevents secondary victimization, it prevents victims from being revictimized, mainly and ideally in the form of retrafficking; if it prevents them from being retrafficked, it prevents the crime of trafficking, for the object of this crime is the person itself.

We made the effort of emphasizing the two aspects of the process—the human rights approach and the criminal law approach—because these are the two opposing approaches represented in the policy making of human trafficking today: the first oriented towards the protection of victims and the recognition of their rights and the second towards border or migration control and criminal prosecution of the traffickers. We believe that by incorporating both these approaches in its goals, social reintegration can be a balanced criminal policy, taking into account the protection of vulnerable victims and the fight against the crime that exploits them.

We perceive this social reintegration not as a mere post-interventive response to crime, as it is often thought, but as a holistic process that is present before, during, and after criminal procedure and therefore dependent on various criteria for its success. For it to be successful, we believe there must be: a well-defined and useful concept of trafficking of human beings, mainly with regard to the position of vulnerability; a successful identification of the victims so they can benefit from the protection allowed to them by criminal procedure; mechanisms of protection integrated into criminal procedure that reduce the degrading effect it tends to have on the victims, allowing for their protection, legal assistance, and support, without demanding their cooperation in the prosecution; realistic and well-adjusted criteria in regard to the return, or not, of the victims to their country of origin, as well as defined obligations for the states regarding the matter of repatriation.

It is a difficult process, with many variables dependent on making it successful and many in need of improvement. However, I believe that through a good understanding of the real circumstances of the victims and effort on the improvement of international criminal policy to humanistic ideas of protection, there is way to unmake trafficking by unmaking the victims.

 

Own Fate: Self-Managing the Future―How to Link Academic Knowledge and Local Practice

January 5, 2018
By 19685

On September 8 and 9, 2017, five Sylff fellows organized an event aimed at promoting sustainable development in Hungary: Professor Eva Kiss, Dr. Andrea Kunsagi, Dr. Viktoria Ferenc, Dr. Viktor Oliver Lorincz, and Dr. Loretta Huszak. Mari Suzuki, director for leadership development of the Tokyo Foundation, attended the two-day event as a representative of the Sylff Association secretariat to support the fellows’ initiatives. The event was significant in that many participants as well as speakers consisted of past and current Sylff fellows. This opportunity served not only to encourage cooperation between academics and local practitioners in Hungary but also to strengthen the bonds among Sylff fellows in Hungary.

***

The Role of Bottom-Up Local Initiatives in Sustainable Development

A round-table discussion during the event, titled “Sustainability Initiated ‘Bottom-Up’: Is It Possible?” The participants are (from left to right): Zsolt Molnar, Andras Jakab, Balazs Hamori, Eva Deak, and Andras Takacs-Santa.

A round-table discussion during the event, titled “Sustainability Initiated ‘Bottom-Up’: Is It Possible?” The participants are (from left to right): Zsolt Molnar, Andras Jakab, Balazs Hamori, Eva Deak, and Andras Takacs-Santa.

Economically and ecologically sustainable development has become a universal concern. It merits the attention and action of all of us. Hungarian fellows of the Ryoichi Sasakawa Young Leaders Fellowship Fund (Sylff) have realized that efforts are needed on a variety of fronts to promote sustainable development. Local and bottom-up initiatives have significant impact and are indispensable for sustainable development. Accordingly, more attention should be paid to them.

Post-communist civil societies, like the one in Hungary, are characterized by a lower level of participation in bottom-up initiatives by ordinary citizens.[1] Nonetheless, recent academic literature indicates that an increasing number of municipalities in Hungary possess local strategies for sustainable development or support initiatives related to sustainability.[2] These initiatives are designed to use and develop the municipalities’ own resources and internal potential to change society for the better.

The focus of the two-day Sylff event was on analyzing how imperative local bottom-up initiatives are to the economic, social, cultural, political, and legal development of modern societies and understanding how their sustainable development can be ensured and observed in Hungary. The first day was dedicated to academic analysis of the above themes, and the second day was a field trip to Szigetmonostor—one of the most active municipalities in Hungary, where the local administration is very much engaged in cooperation with grassroots initiatives. The object of the initiative was to facilitate a bottom-up dialogue between academics and local leaders and initiators. The chief patron of the event was Laszlo Lovasz, president of the Hungarian Academy of Sciences.[3]

Conference Day at the Hungarian Academy of Sciences

 The first day of the initiative was an interdisciplinary forum, which took place at the Hungarian Academy of Sciences in Budapest. It was dedicated to the academic analysis of sustainability and to the scientific elaboration of the role of bottom-up local initiatives in sustainable development. After the opening addresses, Andras Takacs-Santa, program director at Eötvös Loránd University Budapest, gave an opening lecture on “The need for a protective science in the light of the ecological crisis.”[4] He pointed out that the imperative of sustainable development is forcing us to think in new ways but that the way to an ecologically sustainable future is not at all yet clear. Human ecology and the sustainable way of thinking about the Earth’s resources should “run out in all directions” and find their path to the Hungarian Academy of Sciences too.

Section 1 of the forum focused on “the spatial dimensions of sustainable development” with five presentations. The well-prepared speakers approached sustainability from different aspects - environmental, economic, and social - and on diverse spatial levels. They dealt with different parts of the world, from the regional to micro level: China, the Carpathian Basin, Visegrad countries, the South-Bekes microregion, and underdeveloped regions of Hungary. Taken as a whole, the presentations significantly contributed to the success of the conference and to a better understanding of the processes of sustainability on different spatial levels. After the presentations, there was a lively discussion in which the audience raised several questions.

Section 2 analyzed “the successes and anomalies in communication and their role in community generating, business, and social life.” These aspects were investigated from psychological, marketing, management, and human-ecological collateral perspectives. The impact of people on their environment also prevails by numerous forms of manifestation in communication. Making public property from successes and anomalies in communication may help initiate more constructive societal, business, and grassroots movements and give these movements sustainability.

“The human dimension of biodiversity” was studied in section 3. Biodiversity can be found in both nature and culture. Our world is a living network made up of the millions of species of plants and animals and thousands of human cultures and languages that have developed over time. Languages, cultures, and ecosystems are interdependent. For humanity at large, the loss of cultural and linguistic diversity represents a drastic reduction of our collective human heritage. In this section, Sylff fellows discussed human communities that have special attributes in ethnic, linguistic, and cultural respects and whose existence is endangered. The topic is highly relevant in Europe as well as in the Hungarian context. The objective of the panel was to shed light on the importance of maintaining these communities and to link the knowledge represented by Sylff fellows to the practice of local actors and decision makers in Hungary.

Topping the presentation part of the forum was the legal section, which focused on “law and equity in a sustainable society.” Beyond environmental law, the question of sustainability also emerges in other domains of legal studies and political sciences, such as constitutional law, the institutional background of the protection of future generations, populism versus long-term policymaking, and the economic aspects of environmental damages and its legal consequences.

The conference day closed with a round-table discussion. Invited participants talked about the question of “sustainability initiated ‘bottom-up’: is it possible?” It was a valuable discussion, not only in that it summarized the main findings of the conference day but also because it brought together academia and municipalities with bottom-up local initiatives, as well as nongovernmental organizations, and raised expectations for the field trip that was to follow the next day. 

A key point of the conference day was that the presentations went beyond the speakers’ own research, adding aspects of sustainable economic development. They encouraged the audience to analyze the theme from broad perspectives and led to a successful forum, as audience members were able to understand the contents without specialized knowledge. The perspectives that were offered helped not only to identify research interests shared by the different disciplines but also to link academic knowledge with local practice.

Workshop Day in the Idyllic Village of Szigetmonostor

Discussion during the workshop in Szigetmonostor.

Discussion during the workshop in Szigetmonostor.

The field trip to Szigetmonostor was aimed at disseminating and applying academic knowledge to the field. To achieve these goals, academics—scientists employed by HAS (research institutions) and people employed by institutions of higher education—went to the field and experienced knowledge spillovers to the locals. Another aim was to heighten the awareness of local initiators about how academics can support and help their initiatives, thereby helping theoretical academic projects take on a more applied and realistic role; in other words, to help academic projects realize themselves in a more practical pragmatic environment.

The main reason for choosing Szigetmonostor was its isolation. Although the village is just 25 km from Budapest, it is difficult to access due to poor infrastructure; because there is no direct motorway, the only ways of reaching it are via a 50-km detour or by ferry.[5] This makes the village unique in its inhabitants’ reliance on one another. Given the natural beauty and environment of the place, which has been underdeveloped to date, it is an ideal spot to develop tourism. There is a need to create job opportunities within Szigetmonostor, as its geographic location makes it difficult for the locals to seek job opportunities in central Budapest.

Activities provided by Sylff fellows included raising awareness of the historical background of Szigetmonostor among the academic participants. Mayor Zsolt Molnar of Szigetmonostor elaborated on the current situation that the half-island was facing.[6] He gave his account at the dam, with the Danube and the city of Budapest visible in the background. This setting enhanced and inspired the visitors’ interest.

After this opening, the focus turned to local initiatives. Local initiators presented their activities and highlighted the key social challenges that they wanted to be tackled. A short group session followed, in which participants were divided into groups and had to identify possible solutions to local issues. These discussions were led by professional mediators as well as local experts. The idea was to find a common ground between the academics and locals to help with Szigetmonostor’s advancement in terms of tourism, education, local job creation, and so forth.

The group work was then followed by participants presenting new ideas and possible solutions to existing difficulties. The group activities provided a great platform for initiating future collaboration between the academics and local initiators.

Discussion during the Workshop in Szigetmonostor.

Hungarian Sylff fellows and locals in Szigetmonstor, with the newly planted Sylff tree in the background. Holding the plaque for the tree at center are Mariann Tarnoczy, who has been working with Sylff at the Hungarian Academy of Sciences since the program’s inception, and Mari Suzuki, director of leadership development at the Tokyo Foundation.

Hungarian Sylff fellows and locals in Szigetmonstor, with the newly planted Sylff tree in the background. Holding the plaque for the tree at center are Mariann Tarnoczy, who has been working with Sylff at the Hungarian Academy of Sciences since the program’s inception, and Mari Suzuki, director of leadership development at the Tokyo Foundation.

To mark Sylff’s contribution and its recognition for future collaboration, the group of workshop participants went out to a beautiful park built by the local volunteers, where they planted a South European flowering ash tree as a symbol for future collaboration. With the help of locals, the academics dug the ground and planted and watered the new tree.

Impact of the Initiative

The two-day event was well attended, which is an objective indicator of success. Eighty-one people attended the conference day, almost half of whom were Hungarian Sylff fellows. The workshop day in Szigetmonostor saw the participation of 45 academics and locals; the number of Sylff fellows was 12.

The initiative aspired to link academic knowledge and local practice. Analyzing sustainable local initiatives and their impact on society was a new activity field for most of the participants. The researchers who gave presentations had been invited to combine their actual research with this important topic. It was an experiment that made great demands of the presenters but led to unforeseen ties between researchers from different disciplines—to real-time interdisciplinary interactions. 

The initiative also had the aim of contributing to society. Understanding basic human ecology principles and the operation of local initiatives can help to map out and evaluate alternatives. The participants identified such principles and recognized new opportunities for cooperation between local initiators and academics. We hope that this future cooperation will lead to positive social change in such forms as increased citizens’ participation in local initiatives, better understanding of the significance of such initiatives among scholars, and more academic projects taking on advanced applied and realistic roles.

A well-informed public is crucial for sustainable development. The media can help reach a wider audience, inform local stakeholders, and direct attention to the role of local initiatives in Hungary’s sustainable economic development. The first report of the initiative has already been published; an article appeared in the local online newspaper of Szigetmonostor, informing local stakeholders about the event..[7]

The organizers of the initiative have prepared a special edition for Magyar Tudomany, the periodical of the Hungarian Academy of Sciences. All manuscripts are completed and should be published in the coming weeks. In addition, a seven-minute video on the initiative will be published soon on social media and Internet channels (YouTube and Facebook).

The main organizers of the event (from left to right): Viktoria Ferenc, Andrea Kunsagi, Eva Kiss, Loretta Huszak, and Viktor Lorincz.

The main organizers of the event (from left to right): Viktoria Ferenc, Andrea Kunsagi, Eva Kiss, Loretta Huszak, and Viktor Lorincz.

[1] Marc Marje Howard, The Weakness of Civil Society in Post-Communist Europe (Cambridge: Cambridge University Press, 2013), p. i.

[2] Henrietta Nagy, Tamas Toth, and Izabella Olah, “The Role of Local Markets in the Sustainable Economic Development of Hungarian Rural Areas,” Visegrad Journal on Bioeconomy and Sustainable Development, vol. 1, no. 1 (2012): pp. 27–31. https://vua.uniag.sk/sites/default/files/27-31.pdf

[3] For a list of elected chief officers of the Hungarian Academy of Sciences see:

 http://mta.hu/english/elected-chief-officers-of-mta-106110

[4] For further information on Andras Takacs-Santa visit: http://tatk.elte.hu/en/staff/TakacsSantaAndras

[5] Official website of the municipality: http://szigetmonostor.hu/ (in Hungarian)

[6] For further information on Zsolt Molnar visit: http://szigetmonostor.hu/index.php/onkormanyzat/polgarmester (in Hungarian)

[7] Loretta Huszak, “Az MTA kutatóinak és ösztöndíjasainak látogatása Szigetmonostoron,” Ujsagolo, vol. 23, no. 10 (October 2017): pp. 1, 10. http://szigetmonostor.hu/images/dokumentumok/ujsagolo/ujsagolo_2017_10.pdf

Internet Policymaking and the Case of Brazil’s Marco Civil

March 7, 2016
By 19622

Guy Hoskins, a Sylff fellow at York University, traveled to Brazil to study the implications of a new civil law on Internet freedoms with huge implications for privacy, freedom of expression, and network neutrality for Internet users around the world.

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When the revelations made by former US government contractor Edward Snowden emerged regarding his country’s practice of dragnet surveillance of global digital communications, the repercussions were manifold. Some of the consequences, such as diplomatic tensions and a heightened public awareness of data privacy issues, could have been foreseen. Others, however, were much less predictable. One such outlier was the passing into law in Brazil of a bill called the Marco Civil da Internet (the Civil Framework for the Internet) enshrining a substantive set of civil rights for the country’s more than 100 million Internet users, built upon the three pillars of privacy, freedom of expression, and network neutrality. Having been subject to abandoned votes on 29 separate occasions in the country’s lower chamber, the success of this partially crowdsourced, multi-stakeholder policy document was far from assured. The public and executive outrage generated by news of the National Security Agency’s practice of intercepting sensitive Brazilian communications proved to be the tipping point. President Dilma Rousseff signed the bill into law on April 24, 2014.1

Within a global media environment marked by almost daily stories of government infiltration of digital communications, threats against the neutrality of the Internet by telecommunications companies seeking to impose a tiered system, and state and corporate suffocation of freedom of expression online, it is little wonder that a bill of online civil rights in one of the most populous countries on earth should attract the interest of the world. That story, at least for English-speaking audiences, has yet to be fully told. It is the purpose of my doctoral dissertation to address that shortfall. By undertaking a detailed analysis of the development of this world-first bill of rights for Internet users, my hope is that a viable framework can be developed for other countries to follow and to safeguard an Internet legislated according to civic logic. It is not enough to hold aloft the bill itself and point only to the provisions contained therein. In isolation they cannot provide a cogent and replicable model for the rest of the world if the means of their resolution are not properly chronicled and understood.

With an undergraduate degree in Latin American studies, fluency in Portuguese, and experience living and working in the region, I had always attempted to integrate developments in Latin America into my graduate research in communication studies. So when I first read reports about the Marco Civil at the outset of my doctoral studies, it was immediately clear that this would make an excellent object of study. I first traveled to Brazil in March 2014 on a preliminary fact-finding mission while the Marco Civil was still in development. I had the immense good fortune not only to establish a network of contacts among civil society organizations that were promoting the bill but also to be granted access to the Brazilian Congress on the evening of March 25, 2014, to bear witness to the historic successful vote.

Buoyed by these experiences, and with financial assistance from SRA, I planned a period of formal field research in Brazil to coincide with the one-year anniversary of that first vote in March 2015. My primary objective was to interview some of the main protagonists who had participated in the open contribution phase of the bill’s development initiated by the Ministry of Justice. These people represented some of the major stakeholders in the Brazilian Internet, including telecommunications corporations, government bureaucrats, members of Congress, civil society leaders, traditional media companies, and web service companies. In gathering firsthand testimony from these individuals, I sought to discover how different groups of social actors were guided by particular logics with regard to the future direction of the Internet—profit, state security, surveillance, civic engagement, innovation, etc.—and how these were tied to the social values of privacy, freedom of expression, and economic freedom that ultimately form the technical and legal operating environment of a national Internet.

Network neutrality has received much media and public attention in recent months as the subject of major regulatory decisions in the United States, India, and the European Union, as well as of course in Brazil. It was fascinating to observe how what might appear at first glance to be a rather arcane technical premise—that all the data that flows on the Internet must be treated equally without any attempt by network administrators to allow data from certain sources to travel faster than any other—was articulated and interpreted by the different stakeholders in the Marco Civil case.

Traditional media companies, dominated in Brazil by the ubiquitous Globo Group, saw net neutrality as a means to ensure mass access to their commercial content. Web companies interpreted it as a safeguard for innovative new online services. Telecommunications companies opposed it on the grounds that it would stifle the potential for new business models. Civil society organizations generally viewed the legislation as essential to both consumers’ rights to digital services and citizens’ rights to freedom of knowledge. Identifying and charting these diverse interpretations of one element of the technical architecture of the Internet can allow us to better understand why these details are so fiercely contested and to appreciate the deeply social process that underpins these apparently neutral technological considerations.

Another essential facet of the Marco Civil process that I was able to appreciate much better after speaking with my interviewees was the way in which the object of the policymaking process—the Internet itself—had influenced how the various groups were able to “operationalize” their agendas or logics. The Brazilian government’s use of an online consultation forum opened the bill to large-scale public scrutiny and input. This made the legislative project much more democratically legitimate—a fact that helped considerably to overcome partisan opposition in Congress. Civil society groups took advantage of the same mechanism to raise public awareness of the substantive issues under discussion while the telecommunications companies, with no little irony, were the group most disadvantaged by the transparency and ready coalition-building facilitated by the Internet and continued to pursue their traditional tactics of backroom lobbying rather than exposing rational arguments to the oxygen of (online) publicity.

I am now in the early phases of data analysis as I translate, transcribe, and codify the hours of interview footage I gathered during my fieldwork in Brazil. As I work, I seek the insights that will allow me to portray as accurately as possible how, in spite of a concentration of forces applying logics of profit and control online, “another Internet is possible” (Franklin, 20132)—one premised on safeguarding freedom of expression, data privacy, and network neutrality.

1http://www.newscientist.com/article/dn25467-brazils-internet-gets-groundbreaking-bill-of-rights.html
2Franklin, M.I. (2013) Digital Dilemmas: Power, Resistance and the Internet, Oxford: Oxford University Press.