Catalan Independence, Spain’s Response and the Hypocrisy of the International Community

Introduction

The recent referendum that took place in Catalonia and the aftermath it caused in Spain and around Europe highlight the inconsistent nature of the ‘right’ to self-determination but more worryingly displays the lack of concern with which the EU tackle human rights infringements within their own borders. Regardless of whether Catalonia’s claims to independence are valid under the international rule of self-determination matters little when viewed in the context of Spain’s response. Spain, and through their inaction the EU, have set a dangerous precedent in international law that allows for central governments to disregard the basic human rights of their citizens. Therefore, the international community should support the freedom of expression and assembly being exercise by the people of Catalonia and oppose any unlawful interference with these rights by the government of Spain.

Background to Catalan independence

To understand the current complex issues at play in Catalonia it is appropriate to give a brief background to the region and how nationalist feeling has developed.

Catalonia has always been a distinct region of Spain, one with its own language, in addition the region was referred to as a nation in its 2006 Constitution (which was declared unlawful by the Spanish Constitutional Court in 2010).

The region first received substantial autonomy in 1931 under the Second Spanish Republic and the region became a key stronghold for the Republic during the Civil War with Francisco Franco. By 1939 the Republic resistance had all but disappeared and the military dictatorship of Franco’s government had seized power. As punishment for their opposition during the civil war, any autonomy gained was revoked and nationalism within the region was suppressed under Franco’s leadership. This went on through almost the entirety of Franco’s reign, however, certain restrictions were eased in the 1970’s in response to international criticism of his authoritarian regime.

While there has certainly always been appetite for autonomy within Catalonia it is difficult to say there has ever been a desire to be independent. It is arguable that there are two major catalysts for independence: firstly, the aforementioned 2010 Court ruling that limited autonomy; and secondly, the global economic crash.

The second point may appear too broad to have stoked nationalist tendency within the region. However, Catalonia is the wealthiest region of Spain but continues to be hit with harsh austerity measures which led to not only an increase in popularity for separatist parties but also an increase in votes for left-wing minded parties in the recent election.

With both of these factors working in conjunction and occurring within just over a year of each other separatist tendencies came to a head in September 2012 with as many as 2 million people taking to the streets peaceably calling for independence. This has now become an annual event on Catalonia’s ‘National Day’.

After the relative success of the 2012 march, the president at the time declared that there would be a symbolic vote on independence held in 2014 to coincide with the Scottish independence vote. This vote went ahead despite defiance from central government in Madrid and the Constitutional Court. 80% of voters opted for Catalan sovereignty, however it is worth noting that turnout stood at 37%; many who disagreed with independence boycotted the vote. Almost three years later a second referendum was held with over 90% of people voting for independence with turnout standing at 43%.

During the second referendum in 2017, 14 Catalan officials were arrested and several million ballots seized. Over 900 people were injured as police attempted to stop the referendum and ensuing protests. Central government in Madrid also dissolved the Catalan parliament thus revoking many autonomous powers. The Spanish Government’s actions during this time effectively infringed the rights to expression, assembly, and self-determination.

Catalan and the right to self-determination

To understand the context of the Catalan independence debate it is essential to understand the nature of the ‘right’ to self-determination itself. Declaration on the Granting of Independence to Colonial Countries and Peoples which was adopted by the UN General Assembly in 1960 (Resolution 1514) declares that ‘all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ The resolution also declares that ‘the end of colonialism in all its manifestations’ is a primary goal.

Academics continue debate over the validity of Catalonia’s claim to self-determination in the aftermath of the referendum. Many academics contend that due to the fact that Catalan is not a ‘colonised’ region it does not qualify for the right to self-determination in the same way that say Western Sahara (a former Spanish colony) does. These academics also highlight that allowing Catalonia the right to choose would open the door for other regions such as Quebec in Canada and Flanders in Belgium. This would fundamentally change the territorial integrity of established states and this is a well-known limitation upon the right to self-determination according to McCorquodale (1994). While some academics, such as Ordeix and Ginesta (2014), point to the summary of the International Court of Justice regarding Kosovan independence which states that no law can prohibit a unilateral declaration of independence.

As Lanovoy highlights in ‘Self-determination in international law: a democratic phenomenon or an abuse of right?’ (2015) many within the UN feel that procedural elements such as multiparty elections and a democratic system is enough for the realisation of self-determination. Therefore, prior to the dissolution of the Catalan parliament it could have been argued that the people of Catalonia were enjoying their right to self-determination during election periods. This aligns with Franck’s (1992) contention that the right to self-determination entitles people to free, fair and open participation in the democratic process. Therefore, regardless of whether or not the Catalan people have a legitimate claim to independence they were legitimately exercising their right to self-determination by participating in the vote and thus, Spain’s reaction to that vote and the ensuing protests was an unnecessary infringement upon the human rights of the people of Catalan.

In the modern world of international law it is clear that the liberalising potential of the right to self-determination has been curtailed in favour of stabilising borders, this can be observed through case studies on regions such as the aforementioned Kosovo or Crimea.

For a greater in-depth analysis of the right to self-determination and how it is inconsistently applied and protected in international law see Professor Stephen Zunes ‘Self-determination, decolonisation and human rights with reference to the Western Sahara’ (2008).

The Dangerous Precedent set by the Spanish Government and Wider International Community

As set out above the Spanish government’s response to the referendum was a hard-line approach. It was out of proportionate and it was not necessary to meet whatever ‘threat’ they thought legitimate voters exercising their rights posed to public order. However, the response from the international community has been weak. Major institutions such as the UN and EU stressed the importance of communication between both sides and that, at least, is commendable. Yet neither criticised Spain’s hard-line response to the referendum. Current UK Foreign Secretary Boris Johnson described Spain as a close-ally and good friend and went on to commend their strength and unity despite recent events. Upon analysing the international response to Spain’s actions it is difficult to disagree with Conservative MP Peter Bone when he stated that the international community would be up in arms if this was a region of Russia and would be branding Russia as ‘anti-democratic’. He went as far to state that the response was effectively hypocritical and that the international community should shun Spain for their dictatorial behaviour.

Due to the Spanish government’s actions and the lack of oversight from the EU and the UN resulting in Spain not being held accountable for its violations of several human rights the precedent has now being set for future infringements upon the freedoms of expression, assembly and the right to self-determination. If Scotland were to hold an ‘IndyRef2’ in line with Nicola Sturgeon’s wishes could Theresa May send police to prevent voters reaching the ballot in independent strongholds such as Glasgow and Dundee? This scenario admittedly sounds extreme but when viewed in the context of the recent events in Catalonia, the precedent has, unfortunately, been set.

Conclusion

The EU has been consistently slow to recognise that human rights abuses take place within Europe and even more so within their own member states. This is primarily displayed by the ‘Spanish Protocol’ which excludes EU citizens from claiming asylum in other member states, given the level of protection of fundamental rights enjoyed within member states, according to the EU. Van Selm (1996) asserts that this presumption flies in the face of evidence such as the substantial number of EU citizens bringing claims to the European Court of Human Rights yearly. The EU’s lack of concern for human rights violations within its own borders is also evidenced by the fact they allowed both Romania and Bulgaria to join the Union despite a worrying human rights record.

Moving forward, the EU must become more responsive to the issues that the ‘right’ to self-determination can raise. They must also be more prepared to hold their member states to account when there has been a violation of fundamental rights. As Ordeix and Ginesta (2014) state the future of the European Union is being challenged by the claim for more sovereignty by different regions of Europe. Therefore, the EU must form a coherent and consistent approach to self-determination in order to prevent a repeat of the Catalan situation.

However, the relative silence from the UN is the most surprising and undoubtedly the most concerning aspect of the current situation ongoing in Catalonia. If the UN allows for these violations to take place and allows for such precedents to be set, then it is arguably failing at its most fundamental of principles. The UN must condemn the actions of the Spanish government and must also clearly define what the ‘right’ to self-determination means in the modern post-colonial world.

Zunes (2008) during his closing remarks in a paper focussed upon self-determination and human rights asked several pertinent questions, chief among these was ‘if the international community cannot uphold the fundamental right of self-determination, how can we successfully defend other human rights?’ And furthermore, ‘how can other provisions of human rights be protected?’ After all that the UN have achieved in over 70 years it would be a great shame for the international community if it were to collapse as The League of Nations once did, merely because it could not be firm enough with the big players in international law.

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Catalans’ Claim to Independence: We don’t do Self-Determination in Democracies!

Introduction

Dear reader, buckle up; we are in for a bumpy ride!  On 1st October 2017 the Catalan people held a referendum on independence that was branded  “illegal” by the Spanish government. Some 2.3 million Catalans, out of 7.5 million took part and around 90% voted in favour of independence. But the Spanish PM declared that “there was no referendum” prior to which he sent special police to prevent the “illegal” vote!  The essence of the Catalans’ claim is the so-called “right to self-determination”, which is “the right of peoples to determine their own political status and to be free of alien domination, including formation of their own independent state” (Hannum, ‘Legal Aspects of Self-Determination’ Encyclopedia Princetoniensis, https://pesd.princeton.edu/?q=node/254 accessed 08/10/2017).

The “Right to Self-Determination: Development and Issues 

The words above describing the essence of the “right” (I hope my quotation marks don’t annoy the reader and I hope the reason for doing that will become clearer towards the end of this brief note) should have magical powers if I may suggest? To be free of “alien domination”! How noble and elevated promise! “We will enable you to exercise the most fundamental right of all, and that is to free you from alien domination, and subjugation as some documents also add”! Who can deny such a right to a suffering and oppressed lot?! But, at the same time those powerful and emotive words are the nemesis and a cause of the very denial of the “right” to many, because they imply that the “right” can only be claimed in certain context and that is oppression. It is precisely this appeal to a higher, noble and universal value that prevented many groups to effectively rely on the “right” throughout the history. The appeal to humanitarianism enabled those who cannot possibly see themselves as “oppressors” with a convenient opportunity to use the so-called right for political purposes, which the Yugoslav crisis, and in particular the Kosovo episode clearly and painfully demonstrated. And it is poignantly appropriate to refer to the latter episode for the sake of the present argument.

Apparent Inconsistencies and Discrepancies 

On 24th March 1999 a Spanish aircraft from the NATO alliance (Noble Anvil termed by the Alliance, naively and inaccurately translated by the victims as “Noble Angel”!) at dusk F/A-18 Hornets of the Spanish Air Force were the first NATO planes to bomb Belgrade for denying the right to self-determination to the Albanian Kosovars. The action was also, for obvious reasons supported by the Catalans, who are making essentially the same claim today as the Kosovars were prior to the bombing. But it came to haunt them both now in the light of the dramatic developments in the region of Catalonia; the Spanish government for enthusiastically supporting the Kosovo’s claim, which they now with the same vigour deny to their own citizens; and the Catalans for naively believing that they would be awarded for their staunch support and benefit from the implementation of a seemingly straightforward right of “self-determination”! Let us look a bit deeper in history and the development of the so-called right in order to discern a pattern or some sense. The very inception of the concept occurred in a specific context, which was the system of mandated territories established by the League of Nations the UN predecessor (See Q. Wright, Mandates under the League of Nations, Chicago: Univ. of Chicago Press, 1930 ; R.N. Chowdhuri, International Mandates and Trusteeship Systems: A Comparative Study, The Hague: Martinus Nijhoff, 1955).  Article 22 of the Covenant of the League of Nations created a system, under which the victorious Allied powers in the wake of the World War I were given mandate to govern the defeated powers’ possessions in Asia and Africa. The mandates were divided into three groups on the basis of their location and their level of political and economic development. According to Hannum the system was wholly dependent on politics, not on law; in other words no discernible legal principle or rule emerged (see supra 1).  It was only with the establishment of the United Nations in the wake of the World War II that a reference was made to an entitlement of a people to freely determine their destiny and only after the decolonisation processes started to take place in early 1960s. The Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN General Assembly in 1960, “[s]olemnly proclaimed the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” and declared that “[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”  But the same document established a respect for another, much older and opposing principle of territorial integrity (uti possidetis – keep what you have!) by determining that: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations” (Paragraph 6 of the Declaration).

One episode in particular contributed to further uncertainties in relation to the exercise of the “right” to self-determination and that was the Yugoslav crisis, which lasted from 1990 to 1999. In order to obtain a legal advice, the European Communities, as the organisation was termed then, established an arbitration commission (Badinter Commission) (Commission set up by the Council of Ministers of the European Economic Community on 27 August 1991 to provide the Conference on Yugoslavia with legal advice)  which in reality functioned in a much wider sense than an arbitration! Anyone expecting any discernible legal principle or rule will be hugely disappointed because the Commission created confusion previously unknown in relation to the “right” of self-determination. But its findings were subsequently used by the European Communities and the West to impose a political settlement in the region. In the shortest possible terms, the Commission created a presumption of statehood for those who declared independence from the former Yugoslavia and then used it as a principle for denying the same right to units wanting to separate from the newly created states! (See also M. Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 B.Y.B.I.L. p. 333). The only constant that emerged from the episode was that those newly created states were favoured by the West in order to help disintegrate the former Yugoslavia, whose continued existence in the wake of the end of the Cold War was perceived a threat. So, all the groups declaring independence were supported by the European Communities and the US: Slovenia, Croatia, Bosnia and Herzegovina, Macedonia, Montenegro, but the group that found itself suddenly as a minority in the newly created states (the Serbs) were denied the same right.  The Commission’s task was to endow purely political considerations with legality, and inevitably its conclusions contained a number of inconsistencies and absurdities, which unnecessarily complicated the position of international law regarding the principles that were at the core of the Yugoslav conflicts. The approach allowed the creation of exclusively ethnic states in the heart of Europe.  This is in direct contrast to the fact that established European states were not themselves created on the basis of ethnicity and also to the fact that Europe is home to strong integrative processes. But legally speaking, the main problem with the Commission’s reasoning is its partial application of the principle of uti possidetis.  It utilised the principle with respect to an entity that, at the time of giving its opinion, was not a state; but it refused to recognise the applicability of the principle of uti possidetis regarding the Yugoslav borders which still had the character of internationally recognised borders.  Uti possidetis implies that the subject to whom the principle applies is already in possession of a right that it claims to be entitled to.  Neither Croatia nor Bosnia and Herzegovina had in their possession the territory that the Commission thought it deserved to be protected by the principle of uti possidetis.  The Commission’s opinion that uti possidetis had to be applied contradicts the principle’s very nature.  The actual beneficiaries of the rights stemming from the principle (in this case breakaway republics) did not enjoy sovereignty over the territory; there was nothing to be protected by uti possidetis; the beneficiary of the principle could have only been the SFRY (the former Yugoslavia).  Being well aware that the breakaway republics, at the time of their applications for recognition, did not satisfy the criteria for statehood, the Commission nevertheless concluded that their “sovereignty” had to be protected.  It went unexplained why there was no room for the same presumption with respect to the SFRY’s borders.  The principle of not having any consistent principle was confirmed in the Kosovo episode, in which a unilateral declaration of independence (declared “illegal” in the same way as the Catalans’!) was supported by a military action against the state denying it to the region, even in spite of lack of authorisation by the United Nations! The episode shows how far we are prepared to go in assisting the realisation of the “right” to self-determination if it is claimed against an unfriendly nation; I am not saying any more on this one! I can’t bring this piece to an end without making reference to the Kurds, the biggest group, who was never allowed to benefit from the “right” to self-determination simply because the implementation of the “right” would have upset the big powers’ closest allies (Turkey, Jordan, Iraq). It is only most recently that their claim may be entertained and supported to some degree by the western democracies due to the complex situation in the region, where a Kurdish state would offset the increasing Russian influence; nothing to do therefore with the people’s fulfilling legal requirements for the “right” to be applied but much to do with a geopolitical strategy. Clearly, the strategy is a politically convenient tool for maintaining dominance; understandable from a political standpoint, but very sad and untenable from a legal perspective.

Conclusion

The only constant and unfortunate feature that emerges from this brief analysis is that the application of the “right” is dependent, not even on politics but on ideology ( I am making the distinction to emphasise that politics, as a process of decision making does not necessarily have to follow an ideology; politics are subject to pragmatism often rather than ideology); that the “right” can only be exercised by units that live in the countries that are deemed “undemocratic” or enemies of the West. But there is no prospect of benefiting from the “right” by groups that claim it in a western, liberal democracy. This is an inevitable conclusion that one can draw from the unfortunate and awkward development of the so-called “right”. More recent politicians’ statements in relation to the Catalans’ claim confirmed this perception.  Although those who voted in favour of Brexit (“Brexiteers” I like!) expected its main proponent to adopt a principled position and to sympathise with the Catalans on the basis that he is enthusiastically implementing UK people’s referendum result to leave the European Union as a definitive and democratic expression of the will of the people, the UK Foreign Secretary denied, essentially the same right to the Catalans – to freely express their democratic right to vote on their own destiny! He stated that the Catalan referendum was “illegal” because Spain, whose government declared the referendum “illegal” is a close ally and a good friend! (Mr Johnson said: “Spain is a close ally and a good friend, whose strength and unity matters to the UK.” https://www.standard.co.uk/news/politics/catalonia-referendum-boris-johnson-rejects-calls-for-government-to-intervene-over-police-crackdown-a3647986.html).   This was echoed by Margaritis Schinas, who on 2nd October 2017, responding to the dramatic events on the previous day stated that the referendum was “illegal”.  Asked to explain the difference between the Kosovo and Catalonia’s episodes European Commission the spokesman said that: “comparisons between Spain and Serbia could not be drawn because “Spain is a member state” (http://europa.eu/rapid/press-release_STATEMENT-17-3626_en.htm).

I am not sure about others, who often claim there are “uncertainties” about the so called “right” to self-determination; to me there are no uncertainties; everything is perfectly clear and precise actually. A principle that emerges I am summarising in my message to the Catalans as well as any other group contemplating to invoke the “right” to self-determination in similar circumstance: you will have to give up because the democratic world cannot afford the luxury of entertaining your claim since it implies that oppression is even theoretically possible in democracies as well; your claim is doomed because you live in a democracy so to speak! In fact, if I am allowed to predict, it seems that the Catalans will settle with a financial deal in this episode in the same way as the Basque people managed in 2011. To conclude: human rights are universal in the sense that their materialisation does not depend on culture, race, religion, political, social, and economic arrangements I have to preach to my students but, as this sad episode painfully demonstrates there is nothing universal about human rights unfortunately. Absurd but very true.

Is British Constitution Hurting the Country: Potential and Real Fallout from an unfortunate Election?

Is British Constitution Hurting the Country: Potential and Real Fallout from an unfortunate Election?

What a relief! That was my first reaction the other day while sipping the first morning coffee and looking at my plasma TV and the inescapable Sky News (the reference to “plasma” TV does not indicate my personal wealth but a higher degree of shock with a huge display of figures demonstrating the government’s miscalculation!):  a new hung parliament! A relief because the episode provided me with a good coursework topic for my students this academic year! And that was all; in all other respects the outcome of the elections I perceived as pretty catastrophic, not only for the party whose leader called the elections but for the country and the character of our democracy.

And then just when I thought I started enjoying my well-deserved summer break a student asked to meet to discuss the snap general election!

OK, I said; “Let’s meet today.”

The student introduced the topic:

“How could she call a general election when the Fixed Term Parliament Act 2011 does not allow for that convenience?”

“Wow”, I thought; my teaching strategy is working!

“Yes”, I said, “she could”.

And then this: “You told us that the very essence of a constitution is to implement the Rule of Law and prevent discretion; as you put it on a slide: ‘A society in which government officers have a great deal of discretion has a low degree of “rule of law”, whereas a society in which government officers have little discretion has a high degree of “rule of law (M. Stephenson, ‘Rule of Law as a Goal of Development Policy’). At this stage I regretted meeting the student!

“Yeah” I said, “A constitution is all about implementing the Rule of Law, preventing abuse of power and making sure that the main functions of the main institutions are safely separated and properly checked and balanced. That is the whole point of having a law and reference to standards higher and nobler than political convenience or personal gains.”

Then I tried to be as concise as possible referring to the 2011 Act: “The conditions for when a snap election can be called were significantly restricted by the Fixed-term Parliaments Act of 2011. Prior to the Act, the Prime Minister had the de facto power to call an election at will by requesting a dissolution of Parliament from the Monarch. Under the provisions of the Act, parliamentary elections must be held every five years, beginning on the first Thursday in May 2015, then, 2020, 2025 and so on. However, Parliament has the power to call for an early general election, on one of two conditions:

  1. a) Via a motion of no-confidence in the current government. But which prime minister would in their right mind resort to this option, as it would effectively end their career I said to my student; so, forget this one.
  2. b) Via a vote that carries the agreement of two thirds of MPs. So, this one you are focusing on in the current situation” I said.

Then my trouble continued; the student said:

“Let us now examine the Prime Minister’s claim that calling a snap general election was to do with “strengthening Prime Minister’s hand in Brexit negotiations.” (http://www.bbc.co.uk/news/election-2017-40210957) .

The Prime Minister also claimed: “Labour, the SNP and the Lib Dems would try to destabilise and frustrate the process in Parliament.” ( So, the whole idea, we were asked to believe was to provide a stronger and more stable government, allegedly in order to implement what the British people clearly wanted and to prevent other political partners from frustrating that noble goal!”

But then my student said: “Are you aware that our Prime Minister said that she did not want to call a snap election before 2020 because she believed the UK needs stability.”?

“Wow” I said; I wasn’t aware; “where did you get that one please?”

Check this the student said: http://www.bbc.co.uk/news/av/uk-37266627/theresa-may-i-won-t-call-a-snap-election.

“All she wanted was to rely on UK constitutional convention for a personal gain”!

“Watch your language” (for a moment I contemplated to suggest to my student – I didn’t of course!).

Then I tried to suggest that the country needed a strong and stable government for Brexit negotiations.

“Brexit”! The student snapped at me.

“What are your concerns about the Brexit”? I asked.

“My main concern is a real prospect of taking away, what in the civilised world are deemed constitutional and fundamental rights by administrative action; Henry WIII Clause; repealing the European Communities Act 1972, which is according to many commentators a proper constitutional act, requiring more that executive action to amend it”.

“Do you know who and why voted for all this”? The student then asked. “Yes” I said; “the British people”. “Have you checked Lord Ashcroft Report”? http://lordashcroftpolls.com/2016/06/how-the-united-kingdom-voted-and-why/ . “Nearly three quarters (73%) of 18-24 year olds voted to remain while more than 60% of 65 year olds voted to leave! “A majority of those working full-time or part-time voted to remain in the EU; most of those not working voted to leave. More than half of those retired on a private pension voted to leave, as did two thirds of those retired on a state pension. A majority (57%) of those with a university degree voted to remain, as did 64% of those with a higher degree and more than four in five (81%) of those still in full time education. Among those whose formal education ended at secondary school or earlier, a large majority voted to leave. Don’t tell me it was what the British people wanted. Why would we pay for their mistake”? My student asked. This outcome may actually harm our negotiations with the EU without “strong and stable government” since a hard Brexit, meaning no free trade deal is going to be more likely as time goes by. What happens if the EU prefers a hard Brexit, but our new Prime Minister doesn’t have sufficient support for that option from Parliament? “. I scratched my head at that stage for a second or third time during the conversation!

“It’s not only Brexit that the British people are concerned about, but the threat of terrorism, austerity, protection of basic human rights and freedoms”. What about Article 2 ECHR and a positive duty to protect the right to life?  What about the protection of human rights of minorities based on sexual orientation?” What about the devolution and the government’s ability to remain impartial if it gets support from one side only as the situation seems to be developing? Don’t you think those issues require wider discussion within a more representative setting than a party dominated parliament or by a coalition of dubious legitimacy?” my student started elevating the discussion further!

And then the last straw: “She should have apologised to the country for hurting it by using the constitution for pursuing a personal gain, not to her party only”!

“Have a good summer” I was only able to mutter to my student!

 

Living with Addiction and Recovery

Catrin Andersson and David Best

Helena Kennedy Centre, Department of Law and Criminology, Sheffield Hallam University

There is now clear and consistent evidence that recovery is a process or a journey that lasts around five years before people can sustain their own recovery without help. There is also a growing body of evidence that recovery is intrinsically social and that key individuals in the person’s life are critical to supporting and encouraging and facilitating change. And we know much of how this happens through a survey of recovery experiences conducted by Faces and Voices of Recovery in 2013 in the US which showed the extent of the recovery journey.

Critical to the recovery process is the family and loved ones- not only may they be witnesses to the descent into substance addiction, they may also bear the brunt of much of the chaos that addiction brings. This may take the form of financial loss, disruption to the family home and the heartache of uncertainty of whether their loved one is safe, in control or even alive. In addition to these various burdens, they will also often experience the exclusion, the stigma, the shame and the isolation that addiction can visit on families.

Yet the family journey has not been well documented in research. Similarly, their experiences have not been served as well by an advocacy movement that has focused primarily (although not exclusively) on the experiences of the person in recovery.

From what we do know, the family also have their own recovery road to travel and this may not match, in chronology or in context, that of the person overcoming their own addiction. This journey may involve a complete reconciliation with the addict in recovery or may necessitate that they move on in their lives independently from the person they love.

But we know very little about this process and there has been a limited opportunity to give a voice to this hidden group. From the perspective of society, families will often bear the costs of addiction and buffer the effects on society by picking up the pieces every time the addict falls over. Yet our research endeavours have not attempted to quantify how this happens and what recovery means for family members.

In the UK, a partnership between the Desistance and Recovery Research Group at Sheffield Hallam University and Adfam, the national UK charity for families of addicts, has been funded by Alcohol Research UK to create an amended version of the Life in Recovery survey that specifically targets the family experience. It has been pilot tested in the UK with a range of family support groups and is now available online until the ends of July at

Families Living with Addiction and Recovery survey

If you want to have your say, and have your story told, and at the same time to contribute to a new body of research on family experiences please complete the survey. This will allow the research team to communicate to families not only that they are not alone on the journey, but also to show that there is light at the end of the tunnel and that there is hope – hope for the addict and hope for the family. We will also summarise the findings and let you know what the study finds.

Recovery – strategy and policy: The need for clear pathways to recovery for alcohol and drug users

As we await the new drug strategy for England, it is perhaps a good time to review what went right and what has gone wrong with the last one in terms of building a model of supporting long-term change and reintegration.

When the previous strategy was published in 2010, the then Home Secretary Theresa May announced in the preface, “A fundamental difference between this strategy and those that have gone before is that instead of focusing primarily on reducing the harms caused by drug misuse, our approach will be to go much further and offer every support for people to choose recovery as an achievable way out of dependency” (UK Government, 2010, p.2).

However, this was wrapped in a changing world of the Global Financial Crisis and the Coalition drive to localism; more parochially it was also characterised by the demise of the National Treatment Agency for Substance Misuse and the embedding of alcohol and drug interventions in Public Health England. There was an air of excitement about a recovery strategy that was based on hope and in communities and that was meant to offer something much more innovative and exciting than substitute prescriptions of methadone, disability and sickness benefit and long-term unemployment.

To some extent, and in some parts of the country, that promise has been delivered – the focus on moving out of treatment has brought a raft of innovation and local community successes, and a fundamental transition in the delivery of services and treatment – at much lower cost but at a cost of far fewer safety checks.

One consequence has been a recent growth in drug-related deaths both from overdose and from the chronic diseases that characterise addictive lifestyles. There has also been a huge impact on the consistency and quality of treatment that is available to people needing and seeking help. The decentralising of commissioning has led to a reduction in specialist services in many areas along with localised decision-making which has meant that there is little centralised control over treatment delivery and limited quality assurance.

This has had two fundamental implications that are the core of this piece: a reduction in the accessibility of effective residential treatment, and the implementation of a model that fails to meet most of the key requirements of a recovery-oriented system of care.

  1. The gradual erosion of effective residential treatment

As we will demonstrate at an event in Sheffield on the 16th of January in partnership with Phoenix Futures, there is a clear and consistent evidence base that shows the effectiveness of residential treatment. When compared to community treatment, key outcomes – particularly around substance use and offending – are consistently better for residential treatment in a range of treatment cohort studies from the UK and from other countries.

While definitions of recovery vary, there are common characteristics – abstinence, high quality of life, active participation in society and community, meaningful activities and connection and belonging. These things are most likely to be served by a recovery journey that includes the opportunity for residential treatment – treatment of sufficient duration and with sufficient continuity of care (aftercare) that the benefits persist through reintegration into the community. It is also clear from the evidence base (summarised in guidance from the Substance Abuse and Mental Health Services Administration in the US) that an effective and evidence-based recovery system has to include the most intensive and effective treatments such as residential care.

For most people with entrenched addiction issues, substance dependence is enmeshed in wider life issues around mental and physical health, relationship problems, criminal justice issues and life direction. These are complex, intertwined issues and the research shows clearly that recovery requires major changes in social networks and in identity, fundamental changes in self-esteem and lifestyle. Residential treatment affords the space and time to embed and cement these changes, as shown in outcome studies in Scotland, England, Australia and America.

People have to learn to recover and residential treatment provides the opportunity and the guidance to make the most of it. For a drug and alcohol treatment system to call itself recovery focused, there must be a visible, accessible and high quality range of residential treatment options, with adequate support and continuity of care.

  1. What is a recovery oriented system of care?

While we know that recovery is not a linear process and for many it is a journey that will have diversions and misfortunes, most people will eventually get there. However, high quality US evidence suggests that the average duration of an addiction career is 27 years including around 8 years in and out of treatment.

So a recovery system has to have safety nets that recognise the likelihood of slips and integrated approaches that support people way beyond the point that abstinence is achieved. However, the UK system has rewarded rapid exit from treatment with penalties for providers when clients re-present to treatment or re-offend. This just does not make sense and may well have contributed to the recent spike in deaths.

We need a system that is integrated and populated with both peers and professionals and that supports people to reach the forms of treatment that best support long-term recovery (residential treatments including Therapeutic Communities) and that support ongoing engagement in communities – through linkages to housing, jobs and supportive social networks. The recent Department for Work and Pensions campaign “See Potential” is a great way to challenge stigma and exclusion but this must be linked to a treatment system that reaches far into communities and supports change.

Will the new strategy provide this? Only if it goes way beyond the facsimile of recovery that was delivered in the 2010 strategy and that promotes not only meaningful change but sustainable reintegration.

 

Anders Breivik and Universality of Human Rights

“The rights of every man are diminished when the rights of one man are threatened.”

John F. Kennedy

The above statement, a simplistic but powerful expression reminds us of the most fundamental characteristic of human rights. As unpalatable and undesirable as it may sound on occasion, the concept applies to all human beings at all times and under all circumstances. And the author of this brief article has a rather unenviable task to remind the Norwegian government of this fundamental characteristic in the present case.

In 2011 Anders Breivik killed eight people with a car bomb in the centre of Oslo and then shot 69 political activists at a summer camp on the island of Utoya. He was sentenced to 21 years imprisonment, although he could be detained longer on preventive grounds.

He successfully challenged the conditions of his solitary confinement on human rights grounds in April 2016. Article 3 of the European Convention on Human Rights (ECHR) postulates that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Breivik’s lawyers argued that being held in solitary confinement for up to 23 hours a day and denied any contact with other prisoners, or with staff (other than through a glass barrier) constituted inhuman and degrading treatment. The lawyers also argued that being kept in solitary confinement was worse than the death penalty and that their client’s prolonged isolation was having a damaging effect on the claimant’s mental health. Breivik also complained of being woken up several times during the night, of female officers being present during searches of his person, and of being subject to excessive security when moving around the prison.

The District Court judge, deciding the case said that the right not to be subject to inhuman treatment was a fundamental value in democratic societies which applied to all, including terrorists. The Court found that these deprivations did constitute inhuman and degrading treatment and ordered the state to pay his legal costs.

Under Article 3 ECHR a person has the absolute right not to be torture or subjected to inhuman or degrading treatment or punishment.  An absolute right is one that cannot be infringed under any circumstances. The distinction between “absolute” and non-absolute rights is also visible in the procedures for determination of violation. The more fundamental nature of the right the easier to prove that a violation occurred: if an “absolute” right is claimed the applicant must prove on the balance of probabilities that a violation took place; if it is about non-“absolute” right then the violator has to prove on the balance of probabilities that the violation was justified.

The ECHR also stipulates that no derogation (withdrawal) from Article 3 can be made. The ECtHR reiterated this fundamental point in A v United Kingdom in 1998.

Article 3 ECHR therefore represents one of the most fundamental human rights of all, and the European Court of Human Rights (ECtHR), which interprets the ECHR has, on a number of occasions emphasised that the protective nature of the right may override, what state authorities and people may see as legitimate limitations on individual freedoms in particular circumstances. For example, the ECtHR has stressed that the right not to be subject to torture, inhuman and degrading treatment is of an absolute nature, meaning that it cannot be infringed under any circumstances.  The Grand Chamber of the ECtHR made this reference in relation to articles 2 and 3 ECHR in Ilascu v Moldova and Russia in 2004. The Court also referred to “the absolute character of Article 3” in Chahal v United Kingdom in 1996 and in Al-Adsani v United Kingdom in 2001.

Secondly, the prohibition of torture and inhuman or degrading treatment or punishment applies irrespective of the victim’s conduct; this means that whether the victim or potential victim is an innocent child or a cold-blooded murderer or terrorist, they enjoy the protection of Article 3 in the same way. ln Gaffgen v Germany in 2010 the ECtHR ruled that police cannot torture a suspect even if a life could be saved!

The Norwegian government is arguing that the applicant’s isolation was justified on security grounds, to prevent him influencing other prisoners and from harm from other inmates.

It should be born in mind that isolation, as a method of prevention is extremely difficult to justify. The UN Rapporteur on Torture stressed that isolation should be used only in exceptional circumstances and for not more than two weeks. Therefore, it is highly likely that the duration of the applicant’s isolation and especially its impact on his physical and mental health exceeded what was necessary in order to pursue the legitimate aim and that was to prevent influencing others.

This is another major principle the ECtHR developed. In order for a measure to be “necessary in a democratic society” as required by ECHR, it must respond to a “pressing social need” (The Sunday Times v United Kingdom, 1979). This means that the measure impacting on human rights must be proportionate to the aim pursued; in the present case a less intrusive and devastating means could have been employed by the Norwegian government.

According to psychiatric evaluations the applicant is not an ordinary criminal or terrorist; his crimes were motivated by a delusional perception of the world and his surroundings and he suffered from personality disorder, which implies that his actions were in pursuance of personal fantasies. It is difficult to see how such an individual may “influence” others to commit the same kind of crimes; they just would not have anything in common.

My message to the government is very simple: you are perfectly entitled to pursue a legitimate aim that your society may need, a one that may even compromise human rights; your people may feel revulsion towards the crimes committed in the present case; you may pass legislation potentially violating human rights, but the measure must be proportionate and rationally connected to the aim pursued.

The UK’s response to the Syrian Refugee Crisis: a comparative discussion

Introductory Facts

As of the 20th of June 2016 three countries made up more than half of all refugees worldwide: Syria (4.9 million), Afghanistan (2.7 million), and Somalia (1.1 million).[1] The question is where can they settle? Focusing on the displacement due to the conflict in Syria, the countries surrounding the country have housed significant numbers of refugees, with Turkey and Lebanon resettling nearly 4 million between them.[2]

It has been pointed out by Gina Clayton that those fleeing Syria are generally fearful of being killed because of the religious or political agenda of the attacker,[3] making them refugees under the terms of Article 1(2) of the Refugee Convention.[4]

What I am looking to delve into is whether the UK has provided the most effective and legitimate support to refugees of the Syrian Crisis, how refugees are treated when they arrive, and factors, especially the media, contributing to the treatment and perception of refugees in the UK. The support I mention is, I feel, divided into two categories: humanitarian aid (the UK’s preference) and physical aid (resettling refugees in the UK).

Comparison to other EU Countries

To shine the spotlight on the EU, as is the trend nowadays, in terms of the number of Syrian refugees seeking refuge, Germany is fourth only behind Jordan, Lebanon and Turkey[5] at just under 400,000. Fewer than 10,000 Syrians have sought refuge in the UK – and I will not refer to promises made by politicians, including a former Prime Minister. Does this affirm that the right balance has been struck between financial aid and resettlement? Do Syrians see the UK has an ideal place to resettle? The answers perhaps lie with the now dismantled Calais ‘Jungle’ – as branded by the media. The number of migrants differ from official statistics and those published by local charities.[6] However, the fact remains that a high proportion of the population of the camp wanted to settle in the UK.

A way to view the UK’s response is that due to our natural barrier to mainland Europe, we have chosen to ignore an issue that is naturally separated from us and decided instead to ‘throw money’ at the problem. The Calais Jungle, though not fully consisting of Syrian refugees, perhaps epitomises this view. Having said that, we should not forget other countries these people have passed through, are they not as much to blame – for example why have vulnerable children not been identified and protected by other governments? In terms of the French government, their laws on asylum are strict, with, by the 20th of October 2015, 74% of asylum applications being rejected.[7] This view is, I feel, compacted into a quote, along with the view of the majority in the UK currently, from an article in the Independent:

“Take Brexit as an example: it cannot have helped dampen anti-European, anti-immigration and anti-establishment sentiments in this country when a large, chaotic refugee camp just across the water was plainly visible as an image of European incompetence.”

The situation in Calais was a representation of European incompetence, but also one of the UK’s rejection of European values – that issues should be collectively dealt with as one big nation.

Furthermore, could the situation in Calais have constituted an infringement of Article 3 of the ECHR, “no one shall be subjected to…inhuman or degrading treatment”[8]? Article 1 of the Convention creates a positive obligation to ensure that everyone within French jurisdiction has their rights and freedoms secured – Article 3 included. The scenes at the refugee camp in Calais could display a failure to secure the Article 3 right, for which the French government would be liable.

The UK Home Secretary launched the ‘Syrian Vulnerable Person Resettlement Programme’ in 2014, which followed the government’s refusal to participate in the UNHCR’s Syrian refugee resettlement programme. David Cameron’s promise of resettling 20,000 refugees by 2020 came after criticism of the Programme in its September 2015 extension. However, “the scheme would offer resettlement to Syrian refugees in Turkey, Jordan and Lebanon, rather than to those who had already travelled to Europe”.[9] Was the UK government blind to the fact that there were thousands of refugees on its doorstep? Surely the effectiveness of the UK’s response could have been provided by not only committing financial, humanitarian aid to those in Syria, Turkey, Jordan, and Lebanon as well as surrounding countries, but also physical (resettlement) aid/response to those who have travelled and risked their lives to come to us?

There is no doubt that the UK’s contribution in terms of humanitarian aid has been significant, however, with the sheer numbers who are displaced within Syria and in the surrounding countries – is this response the most legitimate and effective one? The financial aid provided, as of November 2016, by the Department for International Development was £1.8 billion to Syria, Jordan, Lebanon, Turkey, Iraq, Egypt and regional countries – £1.2 billion of which has been spent.[10]

The question that should be posed is whether funnelling this money into a resettlement scheme, and better integration policies, would better protect refugees? The point should be raised that the UK’s integration policies are neither substantial nor effective – this was highlighted in the European Commission against Racism and Intolerance (ECRI) report. The ECRI stated that refugees often live in situations of poverty and social exclusion; the sole state service for integration, the Refugee Integration and Employment Service that tackled key issues for resettled refugees, including housing, welfare and employment, was closed down in 2011.[11] Could this be the answer as to why the government is intent on basing its support for refugees on financial aid? It potentially shows self-awareness of a weakness that the ECRI has clearly picked up on.

Brexit does not affect UK’s legal obligations

Article 14 of the Universal Declaration of Human Rights recognizes the right of persons to seek and enjoy asylum from persecution in other countries[12]; which actually suggests a clear right to ‘enjoy’ asylum. However, the clue is in the title… this is merely a declaration and has no binding effect on the UK – perhaps an ideal picture that was painted but never hung on the wall. Should there be a right to asylum? In light of the devastating scenes of drowning refugees that have occurred because of their desperation to reach safety[13], a right to asylum for refugees defined under the Convention would seem the humane position.

When it comes to the depiction of refugees in the media, commentators have noted that “media coverage was seen as largely negative, with little sympathy for refugees’ lives and problems”.[14] This has been somewhat amplified by Brexit, where immigration was seen as the key issue above all others in the media, and in live debates. Refugees have been deliberately confused with migrants in the media – an example is a piece on the Mail Online: “Another all-male coachload of ‘child’ migrants arrives in Britain”.[15] Brexit is being used as an excuse to cut down immigration; however, this is affecting those genuinely in need of asylum due to the fear of persecution and violence in their home state. This is a potential violation of Article 33 of the Refugee Convention – a contracting state shall not expel a refugee to territories where their life or freedom would be threatened.[16] This was incorporated into UK law by the 1996 Asylum and Immigration Act, much like the ECHR was brought in under the Human Rights Act 1998, Therefore the UK’s obligations towards refugees will not necessarily change following Brexit, as for one the HRA will still be law (unless it is repealed), and the Refugee Convention will still be a part of our system.

Event running at SHU on this topic

I hope this blogpost has highlighted some issues that have arisen in relation to the UK and how it has responded to the refugee crisis, as well as current trends within our region and how they have influenced this response. Whether the UK’s response has been both legitimate and effective or not is something that everyone is entitled to an opinion on – mine is one of thinking we could have done, and should do, more.

If you found this article interesting then an event is running set up by me and a fellow student with the support of the law school at SHU on this topic. The details of date and time will appear at the end of this post. It is a part of the Human Rights Project running at SHU, which involves students independently studying an area of human rights law, and creating an event or promotion relating to the area.

Our event is a mini-conference on the effectiveness of the UK’s response to the refugee crisis. We have 3 confirmed guest speakers, with one more to be confirmed. We have Miroslav Baros, Senior Lecturer at SHU and an author on this blog; Daria Davitti, an Assistant Professor from the University of Nottingham, who has a background in professional human rights work and teaches Refugee Law at Nottingham; and a representative from the British Red Cross Project in Britain which is working to reunite families who have been separated due to conflict.

The conference will have an interactive element with a question and answer session with our guest speakers. We hope to have refreshments subject to budget restrictions – we are students!

The event is on the 8th of March 2017 between 3 and 5 pm in the Peak Lecture Theatre at the City Campus of SHU; just up from Sheffield Station.

 

Footnotes

[1] UNHCR, ‘Global Trends: Forced Displacement in 2015’ (UNHCR 2016) pg 3 https://s3.amazonaws.com/unhcrsharedmedia/2016/2016-06-20-global-trends/2016-06-14-Global-Trends-2015.pdf. Accessed 28/11/16

[2]Jeffrey H. Cohen, ‘Where have 4.8 million Syrian refugees gone?’, The Conversation (Ohio, 18 April 2016) http://theconversation.com/where-have-4-8-million-syrian-refugees-gone-57968

[3] Gina Clayton, ‘Immigration and Asylum Law’ (7th edn, OUP, 2016) pg 439

[4] Convention and Protocol Relating to the Status of Refugees 1951, art 1(2)

[5] National Audit Office, ‘The Syrian Vulnerable Persons Resettlement programme’ (Home Office, 13 September 2016) https://www.nao.org.uk/wp-content/uploads/2016/09/The-Syrian-Vulnerable-Persons-Resettlement-programme.pdf accessed 3 December 2016

[6] Claire Milne, ‘Counting the number of migrants in the Calais ‘jungle”, Full Fact (31 August 2016) https://fullfact.org/immigration/counting-number-migrants-calais-jungle/ accessed 3 December 2016

[7] Cour des Comptes, ‘The reception and accommodation of asylum seekers’ (French Court of Audit, 20 October 2016)  http://www.ccomptes.fr/Actualites/Archives/L-accueil-et-l-hebergement-des-demandeurs-d-asile accessed 3 December 2016

[8] European Convention for the Protection of Human Right and Fundamental Freedoms 1950 art 3

[9] Melanie Gower, Syrian Refugees and the UK response, House of Commons Briefing Paper, Number 06805, 10 June 2016

[10] Department for International Development, ‘Syria Crisis Response Summary’ (DFID, 1 November 2016) https://www.gov.uk/government/publications/factsheet-the-uks-humanitarian-aid-response-to-the-syria-crisis accessed 3rd December 2016

[11] Council of Europe: European Commission Against Racism and Intolerance (ECRI), ECRI Report on the United Kingdom (fifth monitering cycle), 4 October 2016, http://www.refworld.org/docid/5836d07c7.html [accessed 1 December 2016]

[12] The Universal Declaration of Human Rights 1948, art 14(1)

[13] Al Jazeera, ‘UNHCR: 2,500 refugees drowned on way to Europe in 2016’ (Al Jazeera, 31 May 2016) http://www.aljazeera.com/news/2016/05/unhcr-2500-refugees-drowned-europe-2016-160531104504090.html accessed 30/11/16

[14] Greg Philo, ‘Bad News for Refugees’ (Pluto Press, 2013) pg 153

[15] Sam Tonkin, ‘Another all-male coachload of ‘child’ migrants arrives in Britain – but officials won’t say how many people there are and won’t do dental checks to prove they’re really children’ (Mail Online, 19 October 2016) http://www.dailymail.co.uk/news/article-3850840/Third-batch-child-migrants-begin-journey-Calais-Jungle-UK-Home-Office-admit-two-thirds-past-children-lied-age-officials.html accessed 4 December 2016

[16] Ibid, art 33(1)