Carbon (Ac)counting and Division: The Need for a More Balanced and Complete Framework

In the increasingly vernacular anthropocene we have altered our climate and ecosystems to the unprecedented point the changes induced predominantly stem from human activity. As modelling and forecasting is often based on the past (of which, in this case, there is none), it is a virtually insurmountable task to forecast their evolution with solid accuracy. Continue reading “Carbon (Ac)counting and Division: The Need for a More Balanced and Complete Framework”

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The State of Europe

As the EU approaches its 50th anniversary next year, many will be wondering whether the union will make it through the next fifty. In truth, 2016 has not been an easy year for the union; marked by the continuation of economic woes, the issues surrounding migration and refugees, and the shock of the Brexit vote.

There is, however, a sense of opportunity from the more optimistic advocates of the European project as the EU sets out its agenda without its so called ‘reluctant partner’. Indeed, European leaders met recently in September for an informal summit in Bratislava in the UK’s absence. The rallying call came from none other than the European Council President Donald Tusk that leaders “must not let this crisis go to waste”. The shock of the Brexit vote could push EU leaders to solve questions surrounding migration, economic instability, and defence and security to prevent a further populist swell.

On the latter issue, the French are keen to pursue further cooperation on a common defence policy at the EU level, as Brexit presents an opportunity to push ahead without British resistance. In reality, it remains to be seen if Brexit presents an opportunity to bring harmony to the union on such issues. Whilst public support for the union has surged across the continent since the UK referendum, politicians continue to be divided on the exact path forward. The agreed ‘roadmap’ at Bratislava amounts to little more than a vague commitment for each country to do their best for the union as the contentious issues persist; especially surrounding the ongoing migrant crisis.

Despite a mandatory migrant quota plan passed by the EU council of ministers in September, doubts about its prospects for success have emerged with Hungary, Czech Republic, Slovakia and Romania’s opposition to the plan. The scheme to relocate 120,000 migrants from Greece and Italy despite the approval of a majority is set to face legal challenges from Hungary and Slovakia – two of the so called “Visegrad Group” – joined by Poland and Czech Republic who expressed their dissatisfaction with the EU’s handling of migration at Bratislava. Though the plan grants €6000 of EU Aid for each refugee accepted by a state, it seems that populist resistance to migrants trump economic incentives for leaders in Hungary and Slovakia. In Hungary, a referendum on the plan saw 98% of voters reject the EU’s position in favour of the government. The 40% turnout rendered the result invalid with pro-migrant voters tactically staying at home, nonetheless the result is symptomatic of the populist and anti-immigrant sentiment engulfing the continent and beyond.

Perhaps the most recent realisation of this is the shock election of Donald Trump on the back of promises to build a wall and ban Muslims. If few people had expected the Brexit result, almost no one expected Trump to win in an election that is set to have profound implications for the continent. Such is the profound nature of the result that foreign ministers met on Sunday to discuss the effect of a Trump presidency on US commitment to NATO, free trade and the Paris Climate Change Agreement. The meeting was notably snubbed by Boris Johnson in a move indicating that the UK may already be moving away from Europe and towards the US. Certainly, May’s cabinet may be eyeing up a trade deal to vindicate the hard-Brexit that the UK may be heading for if it pursues restrictions on free movement. Trump’s proclamation that the UK would not be “at the back of the queue”, in contradiction to the line touted by Obama, will not have gone unnoticed.

If the UK and USA are going it alone then, perhaps Trump presents not just a challenge but an opportunity for the EU to relinquish its reliance on the USA. Indeed, the French Foreign Minister signalled last week that Trump’s election could be the tipping point for a coordinated European defence force. The chairman of the Conservative bloc in the European parliament, Manfred Weber, even went as far to say that Trump may “force Europe to grow up” on a whole host of issues from climate change to trade policy.

On the contrary, it is possible for EU leaders to view the political environment that saw Trump elected as a threat to their own survival. Many will be concerned by the glee expressed by France’s National Front at Trump’s election. Certainly, Brexit and Trump cast new uncertainty on French and German elections next year with the rise of far-right parties posing a threat to stability.

In light of this, the spotlight will likely turn to the awaited December 4th re-run of the Austrian Presidential election, as the far-right Freedom Party Norbert Hofer narrowly leads Independent left-leaning Alexander Van Der Bellen in the polls. On the same day, and perhaps of greater significance, is the Italian referendum on constitutional reform proposed by Prime Minister Renzi to streamline the policy process. As with Brexit, there is a danger that the referendum will simply be a test of the electorate’s trust in politicians rather than the issue itself. Renzi’s earlier commitment to resign should he lose has done little to help despite the later backtracking. Should Renzi’s proposal be rejected as polls suggest, there are concerns of yet another election in Italy and yet more market instability for the EU should the populist Five Star Movement prosper from Renzi’s downfall. The reality may not be so chaotic, but an uneasiness about the result endures.

Whilst the EU desperately tries to find common ground and unity, perhaps the true current state of Europe is one of division and uncertainty.

Aaron Mile is the Editor of the European Affairs Policy Centre at the King’s Think Tank.

Dublin vs. Dubs And The Lack of Executive Oversight

Since Europe’s migrant crisis began in early 2015 vast swathes of the public, human rights campaigners and politicians alike have been disturbed by the images of the unsafe, unsanitary and punishing conditions in refugee camps across Europe. Thus, the transfer of unaccompanied asylum seeking children from the Calais ‘Jungle’ to the UK in October was, without doubt, a cause for celebration, and signified a milestone in the struggle for a more humane immigration and asylum policy.

Yet, there is an alarming political reality behind the arrival of child refugees in immigration processing centres in the UK, because domestic immigration legislation passed in May 2016 allows for many more children to come to the UK than have actually been permitted. The arrival of unaccompanied minors, which should have provoked a moment of celebration, was simultaneously a bittersweet reminder of the Government’s woefully inadequate response to Europe’s migrant crisis.

Home Secretary Amber Rudd hailed the arrival of 312 unaccompanied asylum seeking children to the UK as “a really good result”. Yet, where the Government congratulates itself on accepting a mere 300 children, it is a fact that domestic legislation does allow for the UK to positively impact the lives of hundreds – even thousands – more children.

To explain, unaccompanied asylum seeking children can be brought to the UK under one of two systems. Firstly, the Family Reunification provisions of the Dublin III Regulations allow for asylum seekers who have family members that have already received international protection in another state to be transferred to join those family members and have their asylum claim determined by that country. This is an existing system rooted in EU asylum policy – meaning the Government have no choice but to comply with the legislation, and there is no limit to the number of children who can be brought to the UK.

On the other hand, the Dubs system of transfer allows for unaccompanied children with or without family in the UK to be transferred into British care, providing that they arrived in Europe before 20th March 2016 and that it is deemed to be in the child’s “best interests” to be relocated. Thus, many children who lack family members in the UK and are thus excluded from coming to the UK under the Dublin Regulations may now fall under the criteria of the Dubs amendment.

The Dubs amendment was tabled and named after Labour peer Lord Alf Dubs, who was himself brought to the UK under the Kindertransport scheme during the Second World War. It is rooted in section 67 of the 2016 Immigration Act which make provisions for the acceptance of an unspecified number of unaccompanied child refugees. The Dubs system is still being established and, crucially, since it is entrenched in domestic law it does not therefore hold any power across the Channel.

As explained, these two systems are not synonymous – however, they are often conflated. In the publication of quarterly immigration statistics and in the Home Secretary’s statements to the House of Commons, it is often unclear whether the children in question are being transferred under the Dubs amendment, or the Dublin III Regulations. Such a failure to properly distinguish between these two systems makes it difficult to judge the extent to which the provisions of the Dubs amendment are being properly fulfilled. This conveniently enables the Government to disguise the number of children actually accepted under the Dubs system. As of 1st November, 312 unaccompanied children have been transferred from Calais. However, 252 of these were Dublin cases – the Government had no choice but to accept them. In short, British authorities have voluntarily accepted only 60 cases under the Dubs amendment.

Putting aside the debate about the number of refugees the UK should be accepting, the delayed response in enacting the provisions of the Dubs amendment is indicative of the disproportionate power of the executive – and therefore the ailing health of British democracy. Despite legislative apparatus being in place since May 2016, it was not until mid-October – a full five months after the passage of the Immigration Act – that the first child was brought to the UK under the Dubs system.

In a statement to the House, the Home Secretary blamed the delay in establishing the Dubs transfers on the fact that the “French Government was requesting we did not transfer children outside of the Dublin Regulation process”. This explanation seems improbable at best – especially considering that the French have, for years, been consistently pressuring the British to take more responsibility for the situation in Calais. Most recently, the French President François Hollande called on the British Government “to take your responsibilities and assume your moral duty by immediately organising their [refugee children’s] arrival”. Therefore, it is plain to see that any delays in arranging the Dubs system are not being caused by the French.

Either way, this does not account for the woeful lack of preparation on this side of the Channel. Whether or not the French allowed for the transfer of persons under the Dubs amendment, the Home Office had five months over the summer to make the necessary preparations. Despite this, the arrival of the first child refugees was surrounded by allegations that the Home Office opted not to act on a plan designed and agreed by councils to ensure vulnerable child refugees were adequately housed. Leaked emails also show the Home Office descending into widespread panic as they had failed to make adequate accommodation provisions for the newly arrived unaccompanied minors.

Meanwhile, in the camp itself there has been a substantial human cost to this sluggish response. According to Help Refugees UK, since partial demolition of the camp began in February this year, 129 minors have gone missing. Countless more have fallen victim to traffickers, smugglers, road accidents and police brutality. This was entirely preventable, had the Home Office established the Dubs system sooner.

Although the Dubs amendment does not provide a definitive time limit on the implementation of its provisions, it does state that the process should be implemented “as soon as possible after the passing of this Act”. Clearly this legislation has not been interpreted and implemented properly. Such failure is emblematic of not just the current Government’s morally unacceptable stance on the humanitarian crisis, but also of the disturbing ease with which the executive is able to indefinitely delay and therefore effectively circumvent requirements set out through Parliament’s full democratic process.

It is yet more troubling to consider the Government’s apparent inability to efficiently organise the transfer of children in light of the speed with which they have supplied funds to the French in order to protect British economic interests. In October £36 million was provided to the French to further strengthen perimeter security around the Euro-tunnel complex, and support the general clearance of the ‘Jungle’. This begs the question, if £36 million can be found to support the demolition of the camp, why can it not be found to support the Government’s commitment under the Dubs amendment – a provision which possesses democratic mandate, unlike the spending of millions of pounds on Eurotunnel security?

Equally disturbing is the reality that it was only with the imminent demolition of the ‘Jungle’ that the Government finally acted. However, that the camp was to be demolished by the end of 2016 has been common knowledge since February. The power to bring children to the UK was granted in May. The children in question should have been identified, registered and transferred long before the demolition began. Instead, over 100 unaccompanied minors were left sleeping rough amongst the ashes and debris of the camp in the immediate aftermath, because British and French authorities failed to remove the children before demolition began.[1]

Had the Home Office acted upon its obligations under the Dubs amendment “as soon as possible” – as the Act stated – the violence and trauma experienced by vulnerable children could have been avoided. It is chilling to consider how much longer British authorities would have dithered before acting under the obligations of Dubs had the demolition of the ‘Jungle’ taken place later.

Just as relevant to the sudden burst of activity on the part of the Home Office, is a legal case brought against the Home Secretary in mid-October. Help Refugees (represented by Leigh Day Solicitors) challenged the Home Secretary’s failure to properly interpret and implement section 67 of the Immigration Act. It would be, I argue, more than conjecture to suggest that this could be a key motivator behind the Government’s subsequent acceleration in implementing the transfer process.

Finally, we must ask ourselves, why did it take the closure of the camp itself and a judicial review of the Home Office to begin the process of transferring children – something which statute stipulated should have begun sooner? Whether or not one agrees with the specific provisions of the Dubs amendment, deliberate delay in the implementation of statute to fulfil the executive’s own agenda reflects not just the current Government’s depraved and immoral stance on Europe’s migrant crisis, but is also emblematic of the worrying lack of effective controls on the power of the executive.

Bradley Albrow is the Head Liaison of the King’s Think Tank.

 

[1] Figures from Help Refugees UK.

In Defence of Diplomacy: A Case for Dialogue

Amidst the reeling shock of Tuesday’s night’s election result, the ‘Trump Doctrine’ is a looming concern for pundits and media alike. Regardless of whether or not he chooses to pursue his more ambitious proposals, Trump’s global ambitions seem certain to herald considerable change. It remains to be seen whether he will ‘rip up’ the Iran Deal, ‘bomb the sh*t out of ISIS’, slap a huge tariff on imports from China, recognise Jerusalem as Israel’s capital and cosy up to Putin, among others. Consistently however, the 45th President has premised his foreign policy position (and campaign more broadly) on the need to “Make America Great Again”. The popular charge, that the United States’ foreign policy reflects decay and weakness, propelled by Trump, has captured the breadth of America’s political compass. Whilst the President-Elect perceives this as symptomatic of bad leadership, for a scholar like Ian Bremmer, Chairman of Eurasia Group (no friend of Trump), an ‘incoherent’ foreign policy doctrine following the end of the Cold War is the culprit.[1]

This article however, seeks to reframe the debate entirely. In the run-up to the 8th of November, a persistent failure to acknowledge the changing nature of international order, which warrants an entirely different benchmark for the success of foreign policy today, has plagued the discourse. It shall thus be argued that the major strategic-diplomatic breakthroughs achieved in President Obama’s second term, particularly with Iran, but also Cuba and Myanmar, have been a resounding success when measured against the changing nature of global power today. These hard-fought gains are, without doubt, under considerable threat.

The Changing Norms of the International Sphere: A Survey

Writing in 1994, Dr. Kissinger, former National Security Advisor and Secretary of State, noted in his seminal Diplomacy, that ‘power has become more diffuse’.[2] Indeed, over twenty years later, President-Elect Trump faces a changing world. With China and India’s rapid growth rates, a revanchist Russia spreading its influence over Crimea and the Levant, and a divided Europe, power seems to have diffused even further. Whilst it may be premature to declare the onset of a multi-polar world, there is ample evidence of growing regionalization and a changing international order. With sluggish economic growth in the Western Hemisphere oft contrasted with rapid growth and advancement in Asia, the question of rising regional influence by China and others is pressing. China’s achievement in reaching regional and even global consensus independently from Washington through the Asian Infrastructure Investment Bank illustrates these changing dynamics in action. As a separate piece recently published by King’s Think Tank focusses in depth on the challenges and opportunities presented by China’s rise, we propose instead to focus on a more pressing and polarizing election issue. Namely the Iranian Nuclear Deal, which Trump has threatened to scrap on day one.

Tehran, Havana and Naypyidaw

The achievement of the Joint Comprehensive Plan of Action (JCPOA) with Iran,[3] alongside the Cuba Thaw and lifting of sanctions on Myanmar, certainly demonstrates a strong willingness towards constructive dialogue and diplomacy. Let us begin with the Iranian case. Whilst the JCPOA offers limited sanctions relief in exchange for compliance with restrictions and monitoring, its significance represents more than a one-time agreement. That Iran represents a country with a growth rate projected to swiftly increase,[4] with a relatively youthful and large population of over 80 million,[5] [6] certainly implies it is one with great economic potential. This, combined with the fact that the country is a significant regional actor, with interests across the Levant and the Gulf, means that the deal was struck by no mere minor player. By seizing the opportunity presented by the election of the reformist-minded Rouhani, and crafting a compromise agreement that steadily ushers Iran back into the international order, the Obama Administration has sought to bring a slowly Rising Power back into its rules based international framework, after years of isolation. This is the typically ignored facet of the agreement with Iran, and the international agreements shelled out by the United States as a whole. Left isolated, the Islamic Republic is arguably more likely to pursue regionally destabilizing policies, or continue its support for terrorist groups unabated, as it remains outside the sphere of international norms. Whilst opponents presume that consistently punishing a growing country like Iran with sanctions alone will eventually force it into submission, Iran has continued its support for said policies in spite of the various sanctions regimes placed on it. Moreover, this neglects the long-run growth potential of such a country, which certainly may not succumb so easily to the coercive force of sanctions in the future, as recent Russian Foreign Policy has demonstrated.

The ‘Cuba Thaw’ and the lifting of sanctions on Myanmar likewise suggest a consistency in the Administration’s policy of constructive dialogue. Cuba, which looks set for a leadership transition in 2018, and Myanmar, which seems poised for greater openness amidst high-level growth,[7] are themselves facing times of great change. Whilst human rights concerns are often cited as reasons to refrain from any form of engagement, the United States’ largest trading partner is China,[8] oft-criticized for its own human rights record. The argument therefore, that human rights concerns justify a continuing trade embargo or sanctions seems hypocritical, from a national standpoint, if inconsistently applied. Instead, this punishes ordinary citizens by preventing access to vital goods, which in the case of Cuba, is a stance which the entire world recently reaffirmed its condemnation of. Taken together, and the three reflect a policy-strategy that seeks to build cooperative relations, that includes these states into the mainstream global economic and political order.

The Future

Nonetheless, we must grapple with the impending change in Administration, which appears poised to undo at least the Iranian process. See Fig.1.

Img.png

(Fig 1.)

As of 2017, it would appear that the Trump pathway, triggering Iranian refusals to proceed further seems the most imminent. Following this course, and it is likely that the opponents of the deal will react to Iran’s refusal to proceed further as underlying evidence that Iran was acting in bad faith all along. Thus, an easy political shot for blaming the Obama Administration’s bad diplomacy. Nonetheless, the possibility that Europe, and probability that Russia and China will indeed perceive this as the US not ‘playing by the rules’ is ever present.[9] Hence it is entirely possible for the deal to remain in force through active Iranian cooperation with the other parties involved in negotiations, and as a result, the United States would be the one perceived as acting in bad faith.

Though some of these factors indeed occur independently today (for instance, support for the various Shi’i factions), it is important to stress how, according to the International Atomic Energy Agency, Iran has met its JCPOA commitments.[10] As a recent Chatham House discussion in fact highlighted, fear of penalties from the Department of Justice have put several major companies off doing business with Iran. Uncertainty surrounding the deal at present therefore, emanates mainly from the US side, and refusal to proceed further will undoubtedly shatter the trust that is steadily building on both sides.[11] Though the fruits of such an agreement would take time to appear, we must be cautious to distinguish the source of any deal collapse, and whether this be down to regional, or American intransigence. At present, the latter appears most viable, and the fruits look poised to spoil.

Conclusion

The Administration’s strategy is thus significant, insofar as it reflects a tacit acknowledgement that power is diffusing, and that America’s relative position will inevitably diminish alongside this. Through crafting far-reaching, and inclusive agreements, thereby encouraging partnership within a rules-based framework, the policy has reflected a long-term recognition of changing global order, and an effort to preserve and develop absolute political and economic influence. These achievements risk being jeopardized by a short-sighted policy position, that fails to acknowledge changing global order.

Whilst it is not necessarily the case that said diplomatic approach will work in every case (nor should it in instances of blatant and aggressive disregard for international order and standards) this post does not seek to advocate for a universal approach. Rather, it calls for a form of diplomatic entrepreneurialism – a combined approach seeking opportunities of dynamic change, and new leadership, and exploiting the chance to work with those who are more open to constructive dialogue, as the Obama Administration has done. Indeed, we have yet to see whether Trump is ‘All Talk, No Action’ or as ambitious as he claims. From his claims however, the next Administration appears poised to pursue an ill-defined slew of befriending revanchists and neglecting rising powers, as per proposals to immediately scupper the Iranian Nuclear Deal, the Trans Pacific Partnership, and a huge tariff on imports from China. Whilst dialogue occasionally requires a simultaneous show of strength and commitment as practiced with the deployment of the stuxnet virus and sanctions against Iran’s nuclear capabilities, dialogue fundamentally provides a forum to increase mutual understanding and empathy, enabling states to refrain from the economic and all too human costs of war.

 Rohan Khanna is editor of the Defence and Diplomacy Policy Centre.

 

[1] Ian Bremmer, Superpower: Three Choices for America’s Role in the World (New York: Penguin, 2015)

[2] Henry Kissinger, Diplomacy (New York: Simon & Schuster, 1994)

[3] “Joint Comprehensive Plan of Action.” European External Action Service. July 2015. Accessed July 2015. Available: https://eeas.europa.eu/statements-eeas/docs/iran_agreement/iran_joint-comprehensive-plan-of-action_en.pdf.

[4] “Iran’s Economic Outlook- Spring 2016.” World Bank. Spring 2016. Accessed October 30, 2016. http://www.worldbank.org/en/country/iran/publication/economic-outlook-spring-2016.

[5] The median age in Iran is 29.4 years. Half of Iran’s population is below this age. By way of comparison, the   United Kingdom’s is 40.5, and the United States’ is 37.9. See “CIA World Factbook.” Central Intelligence Agency. Accessed October 2016. https://www.cia.gov/library/publications/the-world-factbook/fields/2177.html.

[6] “CIA World Factbook – Iran” Central Intelligence Agency. Accessed October 2016. https://www.cia.gov/library/publications/the-world-factbook/geos/ir.html.

[7] “Myanmar: Economy.” Asian Development Bank. September 2016. Accessed October 2016. https://www.adb.org/countries/myanmar/economy.

[8] “Top Trading Partners – August 2016.” United States Census Bureau. August 2016. Accessed October 2016. https://www.census.gov/foreign-trade/statistics/highlights/top/top1608yr.html.

[9] Cornelius Adebahr. “What Would Happen If the U.S. Congress Killed the Iran Deal?” Carnegie Europe. August 6, 2015. Accessed October 2016. http://carnegieeurope.eu/2015/08/06/what-would-happen-if-u.s.-congress-killed-iran-deal-pub-60962.

[10] “Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015).” International Atomic Energy Agency. September 8, 2016. Accessed October 2016. Available: https://www.iaea.org/sites/default/files/16/09/gov2016-46.pdf.

[11] Seyed Hossein Mousavian and Sina Toossi. “U.S. Torpedoing the Nuclear Deal Will Reaffirm Iran’s Distrust.” The Huffington Post. April 29, 2016. Accessed November 2016. http://www.huffingtonpost.com/seyed-hossein-mousavian/us-nuclear-deal-iran-distrust_b_9809758.html.

Sintegration?

Free trade with China has become a populist issue, so much so that the Republican Presidential Candidate has pledged to place a 45% tariff on Chinese goods.[1] It is generous to ascribe any sort of strategic merit to the man, but playing on manufacturing job losses among his voter base to push protectionist trade policies has certainly been effective. However, Trump’s policies are not the only example of US resistance to China’s rise. Obama too has failed to adequately engage with China through global institutions. The Middle Kingdom responded single-mindedly, using its ambitious new institutions and investment policies to establish its own order in the East. If it wants to retain its position, the US must actively accept China into the Western system, choosing cooperation and interdependence over economic and diplomatic conflict.

The U.S: Integration to Isolation

Trump justifies his policies in terms he understands: ‘Our trade deficit with China is like having a business that continues to lose money every single year’[2]. This is not an accurate way to characterise how trade works between countries. Trump talks of absolute wins and losses, presenting trade as a zero-sum game. The reality is that both sides are better off due to comparative advantage, making protectionism irrational. When each side can produce a different good relatively efficiently, both sides benefit overall. Therefore, the fact that the US has a negative trade balance does not mean it is the ‘loser’ in trade. The real explanation for the US trade imbalance is that the US has high levels of consumption that reflects its higher GDP. As a result, its investment is higher than its savings, which is very common and not considered dangerous2.

Trump aims to put tariffs on Chinese goods to make US-made products more appealing. However, a tariff as high as 45% would raise costs significantly on consumer goods and raise production costs in the US, hitting those with low incomes the most. On the international level, it would break WTO rules and international norms, harming the US’s relationship with both China, and its own allies.[3] It is true that, due to the specialisation entailed by comparative advantage, jobs in manufacturing goods are lost to countries that can produce them more efficiently. In a recent article to his successor, Obama insists on the overall benefit from trade: ‘While some communities have suffered from foreign competition, trade has helped our economy much more than it has hurt.’[4] However, the vocal minority who are affected have understandable concerns. Since 2008, many blue collar workers will have endured significant economic hardship; nine million people lost their jobs between 2007 and 2009, while debt remains a burden. With growth remaining slow, many do not feel the effects of the recovery, stoking the idea that the elite works only for itself.

However, Trump’s trade policies are popular for broader reasons. The correlation between blue-collar jobs and traditional, often nationalistic values shows that his voter base is primed to accept isolationist ideas, blaming the outsider for their economic hardships. This is the same cohort that opposed Bill Clinton over NAFTA and trade with China in the 90s and early 2000s. In a country where each child might expect to be better off than its parents, Trump promises to bring back the land of opportunity. In reality, opportunity could be achieved with more practical policies such as retraining schemes and initiatives for worker rights. In comparison, the candidate’s policies would place workers in uncompetitive jobs, becoming redundant once mechanisation quickly catches up.

China: Isolation to integration

This fear of China getting the upper hand is not uncommon. There are compelling reasons to view the two countries as competing powers in the East and West; one diminishing, another rising.  Since the mid-20th Century, the US has held a dominant position in the world order. Its power and liberal ideals have been cemented in the UN, IMF and WTO. Adapting to this paradigm has been crucial for countries that require support from the West to develop.

China’s ‘Middle Kingdom’ mentality is therefore problematic for the US; not only does China pose an economic threat, it is reluctant to act on Western terms. Since market reforms were adopted in 1978, China has seen almost 10 percent growth per year.[6] Considering the US’s short history, it is understandable for them to view this as novel. In contrast, the Chinese view their trajectory as more of a resurgence, and the US as an ‘upstart nation’[7]. Reasonably so: up to 1820, they held 30 percent of the world’s GDP in their own subsistent cycle, and enjoyed an enlightenment around 200 years before the West’s similar version[8]. This success was hampered significantly during the Mongol invasion. Years of political unrest and ideological upheaval – the stagnant Qing Dynasty, the Civil War, life under Mao – have only now given way to a renewed prosperity. However, China’s pride in its history and desire for national stability has remained its priority throughout the fluctuating years, irrespective of ideology. Xi JInping has made ‘the great rejuvenation’7 a central theme of his presidency, demonstrating the importance of understanding this quaisi-nationalist mentality in making diplomatic decisions.

Considering this, it appears that the US is responding unwisely to China’s economic threat, excluding it from its liberal institutions and agreements. For instance, it has refused to give China a greater voting share in the IMF, and effectively blocked it from the Trans-Pacific Partnership [9]. The irony is that the liberal system is the solution to the problem of Chinese hegemony. It was built to create an economic and political interdependence that would ensure peace and prosperity, and preserve free trade and democracy. Encouraging China’s participation would therefore ensure that China continues to develop within liberal norms, and that each could prosper without compromising the other. Instead, the US has merely given China the opportunity to create different institutions and trade links on its own terms.

Unsurprisingly, given its ‘Middle Kingdom’ mentality, China has taken up the opportunity. For instance, it has set up the the Asia Infrastructure Investment Bank, which has a similar role to the World Bank in funding development projects in the region. Since these countries require $800bn annually to reach their development targets, China has a leading role in securing the region’s future. Similarly, the Belt and Road initiative aims to send $4bn of investment in transport and energy infrastructure throughout Asia to central Europe. It will be further supported by the Silk Road Fund and the New Development Bank (formerly the BRICS Development Bank). The US has failed to acknowledge the significance of the B&R in bilateral talks and within Congress, but this does not diminish the project in the slightest. By putting its head in the sand, the US is only distancing itself from the region’s development. This reduces the impetus for not only China, but its neighbours, to engage in Western institutions, compromising the validity of the liberal system10.

The US and China have seemingly swapped roles – populism and economic stagnation in the US has led to isolationism, while China continues to takes advantage of globalisation. If the US feels threatened by the Chinese resurgence, it must change its approach dramatically. For one thing, it must continue to pursue tariff-free trade with China, and handle the consequences of specialisation with intelligent domestic policies. Ideally, it should make room for China in its own liberal order, allowing the economic and political interdependence to prevent conflict and secure mutual prosperity. It could, however, be too late. The US should therefore waste no time in offering diplomatic support for the new eastern institutions, and invest in China’s development initiatives. Otherwise, it risks allowing the emergence of a system to rival its own, incompatible and arguably more likely to succeed.

Charlotte Baker is Editor at the Business and Economics Policy Centre.

[1] ‘The Ugly Truth About Donald Trump’s China Policies’, Sara Hsu, Forbes, 1 September 2016 http://www.forbes.com/sites/sarahsu/2016/09/01/the-ugly-truth-about-donald-trumps-china-policies/#73b577573c9d

[2]  ‘The Truth About Trade’, Douglas A Irwin, Foreign Affairs, July/August 2016

[3] ‘Donald Trump has floated big tariffs: what could the impact be?’, Louis Jacobson, Politifact, 21 June 2016 http://www.politifact.com/truth-o-meter/article/2016/jun/21/donald-trump-has-floated-big-tariffs-what-could-im/

[4] ‘Barack Obama’s open letter to his successor’, The Economist, 6 October 2016 http://www.economist.com/blogs/democracyinamerica/2016/10/preparing-pass-baton?zid=311&ah=308cac674cccf554ce65cf926868bbc2

[5] Burchill, Theories of International Relations (2005), Ch3: ‘Liberalism’

[6] The World Bank http://www.worldbank.org/en/country/china/overview

[7] Rachman, G Easternisation (2016) p2

[8] Jacques, M When China Rules the World (2009)

[9] ‘China’s Infrastructure Play’, Gal Luft, Foreign Affairs, September/October 2016

A Decade of Uncertainty

It has been almost a decade since beginning of the last financial crisis, yet the world economy is in greater uncertainty than ever before. While central banks have decreased interest rates to historically low levels and countries such as US, UK, Japan and more recently the EU have introduced massive Quantitative Easing (QE) programs, none of these policies are working. At the beginning of this year RBS sent a message to its clients, warning them of a ‘cataclysmic year’ and a global deflationary crisis.[1] The IMF said that the global economy is ‘highly vulnerable’ and has decreased its growth forecast. Despite the records on Wall Street and low unemployment, things are not much brighter on the other side of the Atlantic – ‘the US economy is in uncharted waters’ as Nell Kashkari, Minneapolis FED president said this year. The prospects do not seem optimistic.

There are two questions which we need to ask ourselves in order to solve this jigsaw. Firstly – what are the causes of our problems? Depending on our answer to the first question we will be able to tackle the second, crucial issue – what are the solutions to the current difficulties, since our usual tools do not seem to be working?

Of course, the answers depend on whom you ask – left-leaning economists such as Piketty or Harvey blame inequality or even the capitalist system itself, while more orthodox economists point towards high budget deficits during better times and slow global economic integration. Thus, a whole palette of different solutions which are proposed- ranging from greater public spending and higher taxes on the rich to reduce inequality, to greater austerity just like the UK has done, or changes in labour law leading to a more flexible job market, which are currently introduced in France. There is a common point in both schools of economic analysis – uncertainty. The Eurozone is in near deflation and investment is low in nearly all developed economies and this is caused by lack of optimism for the future, both from ordinary citizens and businesses who are afraid to invest.

However, can we be really surprised by these reactions? The voices of modern Cassandras outlined in the first paragraph seem to be accompanied by changes in business models and worrying political developments. Focusing on the first issue it is crucial to note a neologism which we are starting to hear more often with almost every passing day- ‘Uberization’. This new term, inspired by an American start up currently conquering its industry, leaving little room for the traditional taxi corporations, shows a lot about the situation in which many people find themselves in. As is widely known, instead of having a regular contract with fixed working days and times, Uber’s drivers are more like freelance sub-contractors (a trend seen previously in the IT sector) than employees. While this has a number of advantages – lower prices and service on demand for the customer and give the drivers a chance to earn extra money after ‘regular’ work, it creates other problems. People who face the Uberization of their work must be prepared to deal with uncertainty. Their job and wages wholly depend on the dynamics of supply and demand. This is not completely new of course, the labour market has always followed the laws of supply and demand, yet before the current decade having a job meant a relatively stable and secure source of income, giving people a sense of security arguably necessary to making steady investments (eg. buying a house) and spending.

Your opinion on this new trend probably depends on your worldview – while neoliberals hail it as a more effective, cheaper way of providing services, the left sees it as another problem for the working class. In my opinion, this model, if regulated sufficiently, can be used very effectively in certain industries, such as the taxi industry. However, regulators need to make sure that ‘Uberization’ does not go too far, affecting the most vulnerable members of our society or leading to a drop in consumer spending and investment.

While many ordinary people may be affected by the above trend, businesses are also facing significant political uncertainty. Brexit, with all the unknowns about how it will happen, is the most obvious and recent example. It has not only questioned the narrative of a ‘linear progression’ towards integration, which had already been cracked when France and Netherlands decided to reject the EU constitution, it has also made it much harder to put up the EU as a model of regional integration. While in the past faith in an ever growing integration of the world economy – starting with regional cooperation first, going to more global levels later on – was seen as almost (using Marxist rhetoric) a ‘historic necessity’, now it seems just as uncertain as anything else. For example, the Transatlantic Trade and Investment Partnership (TTIP) faces strong opposition and has had little progress with negotiations.

This feeling is also reinforced by other worrying international developments – Russia’s annexation of Crimea and war with Ukraine, South China maritime dispute, tensions in the Middle East to list a few. Furthermore, the rise of political extremism in the developed countries is certainly worrying all liberals and many businesses, where unpredictable individuals are close to winning elections in many countries. There is a sense of irreversible change in liberal democracies. ‘The Economist’ recently described this trend as a divide between the open and the closed.[3] Amongst the most critical issues are immigration (both legal and illegal) and free trade. It seems that the current mainstream economic paradigm- neoliberalism- is being questioned by the voters. This would not be anything extraordinary – economic thinking changes from time to time – but the problem is that while those opposed to neoliberalism are good at criticising it, they are much weaker at coming up with viable alternatives. As a result, businesses are forced to accept the reality of uncertainty – both geopolitical tensions between States and domestic politics, where many political candidates promise to change the current system without stating what that change would look like.

To conclude, it is worth pointing out the irony of the situation we are currently in. Just before the financial crisis, of 2008, many economists and presidents of central banks claimed that we have mastered the economy, learned to manage its cycles, and it seemed as if the economic world entered a new era of stability. Now, experts and investors tell us to expect a new crisis. Perhaps the hubris of some thinkers and policymakers, who seemed to think that we have reached some kind of an economic end of history and found the keys to an everlasting stable development, was a cause of the current situation. While in the past people listened to economists, at least to some degree, many people are ready to support political candidates facing strong opposition from economists. This is not as irrational as it seems, since the public prestige and trust towards economists have decreased since their failure to predict the last financial crisis. People feel cheated, and a growing number of them seem to believe in conspiracy theories about ‘the establishment’ or greedy elites allying keep the power and riches to themselves, exploiting everyone else.

Strong, visionary and brave political leadership is needed in order to reverse that trend. Each country needs different solutions, and it is difficult to generalise about domestic policies, but more cooperation in the international sphere, such as in forging (reasonable) free trade agreements and in eliminating negative phenomena like money laundering and tax evasion should improve the situation for everyone. Only such visionary, but realistic leaders will allow for solutions that will hopefully make our times a little less uncertain than they are currently.

Szymon Daniluk is the President of the Business & Economics Policy Centre.

[1] http://www.cityam.com/232162/rbs-urges-clients-to-sell-everything-except-high-quality-bonds-ahead-of-cataclysmic-year

[2] http://www.marketwatch.com/story/feds-kashkari-says-us-economy-in-uncharted-waters-2016-04-18

[3] http://www.economist.com/news/leaders/21702750-farewell-left-versus-right-contest-matters-now-open-against-closed-new

Could BEIS be the vehicle the low carbon economy has been waiting for?

Climate change was at the centre of a bitter row over Theresa May’s government reshuffle this July. One day into her premiership, it was announced that the Department for Energy and Climate Change (DECC) would be merged with the Department for Business, Innovation and Skills (BIS), to form a new Department for Business, Energy & Industrial Strategy (BEIS). Politicians and campaigners were quick to point out that, in the acronym acrobatics of the new Prime Minister’s departmental restructure, two important letters had been lost: CC.

May’s decision to abolish the department with a named responsibility for tackling climate change provoked a huge backlash. Ed Miliband, DECC’s first ever secretary of state (2008-2010), labelled the move ‘plain stupid’. This negative sentiment was echoed by his two Liberal Democrat successors at the department, Chris Huhne and Ed Davey – the latter describing it as a ‘major setback for the UK’s climate change efforts’. Outside the arena of party politics, critics ranged from Friends of the Earth and Greenpeace to environmental law organisation ClientEarth and The Elders, an international NGO chaired by former UN Secretary-General Kofi Annan.

The main objections to the merger of DECC and BIS, and the omission of ‘Climate Change’ from the new BEIS department’s name, were that it:

  1. was a capitulation to the climate-sceptic wing of the Conservative Party;
  2. would side-line climate change at the cabinet table and within the department;
  3. sent a negative signal about UK climate leadership, hitting low carbon investor confidence.

Although these were legitimate concerns, the evidence suggests that the restructure was neither an attempt to kick climate change into the long grass nor aimed at inhibiting the process of de-carbonising the UK economy. Despite lingering uncertainties, signals from BEIS have mostly been positive and, if this continues, the new department has the potential to be a powerhouse for the low carbon economy.

Appeasing the climate-sceptics?

The Global Warming Policy Foundation, the UK’s foremost climate-sceptic think tank, has previously called for DECC to be abolished. In 2014 and 2015, Conservative backbenchers presented ultimately doomed private members bills to that effect, requesting DECC’s functions be absorbed by BIS. So when Theresa May appeared to do exactly that on her second day as Prime Minister, it was considered to be a hasty implementation of plans laid by the most climate-sceptic of her colleagues. Her decision was seen in the context of the recent vote to leave the EU. May, a Remainer, was thought to be making a ‘concession to the Tory Brexiteers’, in the words of Catherine Bearder MEP; all nine of the MPs who supported the DECC Abolition Bills still in Parliament had campaigned to leave the EU at the time of the referendum.

However, there are important differences between what the climate-sceptics had proposed and what actually happened in the restructure. Rather than DECC being diminished and subsumed by BIS, it has been merged with a reduced BIS. All the previous climate change functions of the old department have been fully transferred to BEIS, which is now run by the permanent secretary from DECC. Although the secretary of state is responsible for a much wider policy portfolio and the minister for climate change also has industry to grapple with, the division of roles and responsibilities within BEIS suggest an attempt to connect energy and climate policy with business and industrial strategy, rather than to side-line the former.

May’s appointments to key BEIS positions appear to confirm this. Greg Clark, the Secretary of State, previously served as shadow DECC secretary (2008-2010) and is widely considered to be an ally of the green movement. In 2010, the man who was expected to succeed Ed Miliband at DECC – pipped to the government post by his Lib Dem coalition partners – argued that sticking to a high carbon path was ‘the biggest threat to our prosperity, social fairness and economy’. Six years later, in his first statement as BEIS secretary, he highlighted ‘delivering affordable, clean energy and tackling climate change’ as priorities for the new department. The minister responsible for delivering the last of these ambitions, Nick Hurd, is also an outspoken advocate for climate change action and was earlier in 2016 named ‘MP of the Year’ at a green awards ceremony.

Side-lining decarbonisation?

Perhaps the strongest argument against the DECC/BIS merger is that it will weaken the status of climate change within government. Ed Miliband, DECC’s first ever secretary of state, argued that losing a dedicated ‘climate change’ department would be a setback for the agenda because ‘dep[artmen]ts shape priorities, shape outcomes’. It is unlikely, however, that the restructure ‘risks dropping climate change from the policy agenda altogether’, as the New Economics Foundation has argued.

The government is legally bound by the UK’s Climate Change Act to meet incrementally increasing emissions reduction targets. Unless this Act is repealed – unlikely given the support it enjoys from Theresa May and Greg Clark – the responsible department, now BEIS, is obligated to produce carbon plans that spell out how these targets will be met. According to Stephen Heidari-Robinson, former advisor to David Cameron on energy and environment policy at No. 10, much of the next carbon plan has already been drawn up by Amber Rudd, the last secretary of state at DECC. If there are to be major changes to this plan following the leadership changes, the question is: which department would be best placed to draw up a credible and ambitious decarbonisation plan?

Sam Fankhauser, a climate change specialist at the London School of Economics, argues that BEIS provides a ‘much better, stronger basis from which to decarbonise the UK economy’ than DECC, as to do so ‘requires the close coordination of climate, energy and industrial policy’. This coordination is vital for decarbonising the heat sector in particular, and for mainstreaming innovative technologies like storage and Demand Side Response – all of which should be at the heart of the carbon plan. Having responsibility for industry and climate change within the same department should lead to new policies for low carbon growth that, as Greg Clark has pointed out in to reference renewable energy infrastructure, will ‘build new industries and create new jobs’.

Moving climate policy to BEIS could also give the low carbon economy a stronger voice within government. According to the Policy Exchange think tank, climate and energy policy has the potential to be ‘elevated to a much higher level politically’ by relocating responsibility for it away from the now defunct DECC, which it described as ‘something of a minnow in departmental terms’.

Sending the wrong signals?

Angus MacNeil MP, chair of the Energy and Climate Change Committee, pointed out that investor confidence in the UK energy sector has been low following the EU referendum and years of uncertainty on climate policy. Environmental lawyers ClientEarth argued that abolishing DECC shortly after the unexpected and destabilising vote to leave the EU sent ‘a terrible signal at the worst possible time’. Of the 50 large business energy users surveyed by Inenco in early August, a majority were worried about a downgrading of the climate change agenda following the merger.

However, this ‘bad’ signal has been followed by series of good ones. The ratings agency S&P Global claimed that, despite uncertainty, the ministerial appointments at BEIS and the government’s decision the pass the 5th Carbon Budget, a requirement of the Climate Change Act which sets the government’s emissions reduction targets (now 57% below 1990 levels), had boosted optimism within the renewable energy sector. Although Amber Rudd had set the carbon budget’s wheels in motion before Theresa May’s ascension to the premiership, one of the first acts of the May government was to see this carbon budget through Parliament. In his short time as BEIS secretary, Greg Clark has already given the green light to the creation of the world’s largest offshore windfarm.

These are important first steps, but the government still needs to do more to reassure investors of its future plans for the low carbon economy. The UK should follow in the footsteps of China and the United States by taking the symbolic, albeit easy, step of ratifying the Paris Agreement. The best thing the government could do, however, is produce an ambitious carbon plan before the end of the year that brings business and industry into its efforts to decarbonise the UK economy – something it is better placed to do now than ever before.

Liam Taggart is president of the Energy & Environment Policy Centre at the King’s Think Tank.
A shorter version of this piece can also be found on the WWF UK blog.

Equality in Law Only: A Case Study of the Rainbow Nation

The Constitution of the Republic of South Africa, adopted in 1996 following the fall of apartheid, is one of the most modern and comprehensive constitutions in the world. Due to the horrors that preceded it, the legal guarantee of equality ‘permeates and defines the very ethos upon which the Constitution is promised.’[1] Equality law in South Africa is more advanced than in many Western countries, with compulsory schemes of affirmative action and a long list of constitutionally protected grounds including; ‘race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.’[2] Even in areas of law normally divorced from social factors in most countries, such as competition law, judges in South Africa are compelled to consider the impact on equality.

Despite these lofty ideals South Africa remains one of the most unequal societies in the world. Racism is still alive and kicking, with a recent report by the Institute for Justice and Reconciliation finding that ‘a majority of respondents (61.4%) feel that race relations since 1994 have either stayed the same or deteriorated. Only 35.6% of the sample indicated that they experience no racism in their daily lives.’[3] Women seem to fare no better; a 2009 study released by the Medical Research Council showed that of 1,738 men interviewed, 27.6% had perpetrated the rape of a woman or girl.[4]

How can these two dimensions be reconciled? Why has a legal system so centred on equality changed so little in the last twenty years? This article seeks to provide a snapshot of both the success and flaws of the South African equality law system, in particular on the question of enforcement, demonstrating how little power the Law has when it is not put into practice. This article will consider affirmative action and hate speech as examples, followed by a look at the state of the institutions safeguarding the law.

Legal Structure

Section 9 of the Constitution provides the guarantee of equality. A transitional clause[5] required the passing of further equality legislation within three years of the Constitution’s commencement. Under great pressure, Parliament finalised and passed the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) merely two days from the given deadline. PEPUDA is the primary act dealing with most types of discrimination, with the exception of inequality in the sphere of employment that falls under the Employment Equity Act (EEA).

Affirmative action

The EEA requires certain employers to engage in schemes of affirmative action, for the sake of inclusion of people from designated vulnerable groups. This is a rather new approach – while many countries around the world authorise affirmative action, few mandate it. To compare, EU law permits affirmative action, but views it more as an exception to the principle of equality, in that it allows for discrimination in a positive sense, rather than as a promoted means to achieve equality.[6]

Nkomo conducted a study of businesses which came under the scope of the EEA, and found that ‘case studies revealed minimal understanding of the importance and value of equality and diversity in organisations. Instead the dominant approach was a compliance-motivated response to the Employment Equity Act. Transformation efforts, for the most part, focused on numerical targets.’[7] She uses this finding to argue that, although affirmative action is needed, the transformation cannot be purely legal. The value of a representative workforce must be taught, not simply imposed.

In the public sector, the problem seems even greater. Louw comments on the case of Naidoo[8], in which the application of an Indian women for a post in the South African Police Service (SAPS) was rejected, on the basis that she was Indian. The shocking aspect of this decision is it was taken under an Employment Equity Plan, a scheme which was created in order to implement the EEA. SAPS had calculated the amount of positions needed for each ethnicity, found that the quota of Indian female positions was 0.1%, and conveniently rounded this down to nought. While the Court found this as unfair discrimination, the very fact that this could occur under enforcement of the mandate of the EEA, as recently as 2013, shows that interpretation of affirmative action under the EEA is flawed, transforming human applicants into numbers. Particularly troubling is the State’s involvement in a situation where it needs to set an example for others. It seems that although the law itself is aimed in the right direction, employers only strive to the fulfil number-based criteria do not appreciate the goal of representation enshrined in the Law. The whole culture of recruitment must be changed and employers educated, in order for the scheme to work its intended purpose.

The Conundrum of Hate Speech

Hate speech is a controversial issue worldwide, as it requires a balancing act between equality and freedom of speech. Because of this balance, nations must choose which value is more fundamental, and different answers are given. In America, where First Amendment freedom of speech is given primacy, hate speech protection is lax.[9] This is due to the underlying philosophy that when all ideas are allowed to be publicly debated and expressed, the right ideas will eventually prevail.[10]

South Africa, on the other hand, comes down firmly on the opposite side of the spectrum. Within the Constitution, hate speech is an express exception to freedom of speech. Section 10 of PEPUDA contains a prohibition which is framed very broadly; speech need only be based on one of the protected grounds, and objectively intended to ‘be hurtful’, in order to be illegal.

There certainly have been some successes under this section. One example is the recent case of Sonke Gender Justice Network v Malema[11], in which Malema, the youth leader of the ruling party African National Congress, responded to accusations of rape directed at Zuma, the President, by commenting that the woman had a “nice time”. The magistrate ordered Malema to make an unconditional public apology within two weeks and pay an amount of 50,000 rand (£4,490) to a centre for abused women, an imaginative remedy central to the approach of South African courts.

This is not to say there are no problems with the enforcement of this provision. One contradictory jurisdictional issue, pointed out by Krüger, is that there is an overlap between PEPUDA and the EEA, in that the EEA is silent on the issue of hate speech in the workplace.[12] As such, many Equality Courts ruling under PEPUDA refuse to accept claims on this issue, given the EEA’s exclusive jurisdiction on labour law. This results in uneven application of the law dependent on where you live in the country – if a person on the street shouts (for example, racial) abuse at you, you can sue them for hate speech; if your boss does the same, you cannot. This unacceptable gap cannot have been intended by Parliament, and must be addressed.

The Equality Courts

The Equality Courts were created under PEPUDA, to rule on all issues of equality law. The primary purpose of the Equality Courts is to allow equal access to the Law, regardless of money, status or education. To ensure this, all proceedings are informal, without need for a lawyer to be present, and trained clerks are there to provide assistance with the case. There is no fee for a case to be brought, unlike most other South African courts.

Yet Kaersvang reports that fewer than 700 Equality Court cases were filed between 2003 and October 2006, and some rural Courts saw no cases brought at all.[13] Furthermore, a study of the Equality Court in Johannesburg between 2003 and 2007 found that of the 34 cases brought during that time, only two judgments were delivered and three matters settled by agreement.[14]

There are a number of reasons for this ineffectiveness. The first is a lack of public awareness; although PEPUDA requires the government to promulgate regulations on promotion of the Courts, it has failed to do so. In fact, inaccurate information as to something as simple as whereabouts is common. The Institute for Democracy in South Africa was able to locate only 43 of the 220 designated Equality Courts when it did a study on the functioning of Equality Courts.[15]

The second is staff training; many clerks receive only two or three hours of training at the beginning of their clerkship. ‘Some are not even aware that they are Equality clerks.’[16] In addition, financial accessibility is in law only; while claimants do not have to pay to bring a claim, respondents, who often have greater resources, hire lawyers to represent them. When a claimant is unaware of the law and is assisted only by a clerk with little training, representation may be a significant advantage.

Finally, Equality Courts do not ‘appear to be used much by the poor and marginalised, but primarily by the wealthy or educated’.[17] Kaersvang gives the example of a case where four white magistrate judges challenged the appointment of two black female judges, on the grounds that they were less qualified than white candidates. The Equality Courts are not functioning for their intended purpose, and in cases such as this they may be detrimental to progress.

The Commissions

To safeguard equality, different institutions have been created, notably the Commission for Gender Equality (CGE) and the Human Rights Commission (HRC). The legal mandate of these institutions is far reaching; they are intended to seek out claimants for whom they can lodge proceedings in court, and as such have wide powers, such as being able to conduct search and seizure operations and inspections. They are also intended to monitor government compliance.

Yet, as we have seen, often the nobility of the law has little reflection in practice. A 2009 report on the functioning of these institutions has the CGE severely criticised as displaying ‘a poor understanding of its legal and constitutional mandate’.[18] The CGE had never assisted anyone in taking a case, reasoning that it ‘has never been approached by prospective litigants’, although it had a duty to seek out those litigants. The powers of search and seizure remained unused, and it had not monitored the government’s commitment to gender equality. Financially, they were also found to be facing issues; ‘the budget process and funding model of the Commission adversely affect its accountability and independence’[19].

The HRC has had more success, with the report describing it as ‘an active and passionate defender of human rights’. It did face similar funding complaints as the CGE, as well as criticism on its lack of focus on rights of children and disabled persons, and the fact that ‘about 50 percent of the requests for information from government departments never receive a response.’[20] However, the message of the report is that the HRC is attempting to fulfil its purpose in the midst of limited resources and outdated legislation, unlike the CGE which has made very little effort to protect women.

Conclusion

This article is not intended as an exhaustive or complete picture of equality law in South Africa; indeed, substantive law has barely been touched upon. However, in each of the sections explored, there is a large gap between the letter of the law and its effect in practice. There is no doubt that the equality law of South Africa has noble goals. We must not forget, however, that law without enforcement is nothing but a written piece of paper. In order to effect societal change, the South African government, the Equality Courts and the Commissions must make efforts to seek out and inform those for whom equality law is intended. Essentially, no matter how well-constructed the law may be, its message must be carried out by the government and society more generally. Until real efforts are made to promote equality on all levels of society, South Africa will not escape the shadow of apartheid.

Jagoda Klimowicz is President of the Law Policy Centre, King’s Think Tank. She is also a 3rd Year Law LLB student at King’s College London.

 

[1] Fraser v Children’s Court, Pretoria North 1997 (2) SA 261 (CC) at [20].

[2] Section 9 of the Constitution of the Republic of South Africa.

[3] Institute for Justice and Reconciliation. “National Reconciliation, Race Relations and Social Inclusion” South African Barometer Briefing Paper 1. 8th December 2015.

[4] Jewkes R et al: Understanding Men’s Health and The Use of Violence: Interface of Rape and HIV in South Africa Medical Research Council Policy Brief (June 2009).

[5] Item 23(1) of Schedule 6 of the Constitution.

[6] Article 157(4) TFEU. For a full comparison of EU equality law to the law of South Africa, see a report by the European Commission, available at http://ec.europa.eu/justice/discrimination/files/comparative_study_ad_equality_laws_of_us_canada_sa_india_en.pdf .

[7] Nkomo, Stella. “Moving from the letter of the law to the spirit of the law: the challenges of realising the intent of employment equity and affirmative action.” Transformation: Critical Perspectives on Southern Africa 77.1 (2011): 122-135.

[8] Naidoo v Minister of Safety and Security 2013 3 SA 486 (LC); Louw, Andre M. “” I am not a number! I am a free man!” The Employment Equity Act, 1998 (and other myths about the pursuit of” equality”,” equity” and” dignity” in post-apartheid South Africa)(PART 1).” PER: Potchefstroomse Elektroniese Regsblad 18.3 (2015): 594-667.

[9]https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/?utm_term=.dcbd64e1dc5a .

[10] A concept referred to as the marketplace of ideas, founded on the philosophy of Milton and Mill: John Milton, Areopagitica, in Areopagitica and Of Education 1, 50 (Harlan Davidson, Inc. 1951) [1644]; Mill, John Stuart. “On liberty.” A Selection of his Works. Macmillan Education UK, 1966. 1-147.

[11] (2010 (7) BCLR 729 (EqC)) [2010] ZAEQC 2.

[12] Krüger, Rosaan. “Small Steps to Equal Dignity: The Work of the South African Equality Courts.” The Equal Rights Review (2011).

[13] Dana Kaersvang ‘Equality Courts in South Africa: Legal Access for the Poor’ Journal of the International Institute 15.2 (2008).

[14] Krüger, Rosaan. (2011) n11.

[15] Kaersvang (2008) n12.

[16] Ibid.

[17] Parliament of the Republic of South Africa (2007). Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions. A report to the National Assembly of the Parliament of South Africa, Cape Town, South Africa. Available at http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/070821chap9report_0.pdf

[18] Ibid.

[19] Ibid.

[20] Ibid.

The Case for a European Scotland

Nicola Sturgeon is working hard in her quest for a European Scotland. The First Minister has been holding a series of high profile meetings in an attempt to press her case for keeping Scotland in the EU. On the morning on 29 June, she met with Martin Schulz, the European Parliament President, Gianni Pitella, the leader of the Progressive Alliance of Socialists and Democrats in the European Parliament, and Guy Verhofstadt, the former Belgian Prime Minister and leader of the Liberal group at the European Parliament.

They all declared themselves sympathetic to Scotland’s situation, but also voiced their belief that Brexit is an issue that will need to be solved with the UK in its entirety, Scotland and Northern Ireland included.

Donald Tusk, the European Council President, refused to meet Sturgeon, saying that it would not be appropriate at this time. This refusal is almost certainly due to the fact that Mr Tusk represents the interests of the heads of the different EU states, who still remember the 2014 Scottish independence referendum and the threat it represented to the national unity for many European countries.

Ms Sturgeon, however, managed to book a meeting with Jean-Claude Juncker, the European Commission President. Mr Juncker, who on 28 June morning had a heated exchange with then UKIP leader Nigel Farage in the European Parliament, said that Scotland had won the right to be heard in Brussels and that he would listen carefully to Ms Sturgeon’s arguments but that neither he nor Donald Tusk would “interfere in the British process”, adding that this “is not our duty and not our job”.

The First Minister pointed out that Scotland is “at a very early stage of this process. I’ve set out very clearly Scotland’s desire to protect our relationship with the European Union but I don’t underestimate the challenges that lie ahead for us in seeking to find a path.”

The biggest challenges could indeed be represented by fellow EU members. Both France and Spain expressed their opposition to negotiating a potential EU membership for Scotland. Spanish Premier Mariano Rajoy said: “Spain opposed any negotiation by anyone other than the government of United Kingdom. I am extremely against it, the treaties are extremely against it and I believe everyone is extremely against it. If the United Kingdom leaves… Scotland leaves”.

This sort of arguments suggest that a separate Scotland would have to start life outside the EU and have to negotiate entry, a process that could take years and involve adoption of the Euro and a hard border with England.

It is easy to see how certain countries, and Spain in particular, would be especially determined to take a hard line with Scotland, in an attempt to discourage their own internal separatist movements. “Britain’s departure from the EU will boost a Catalan independence movement that is currently in crisis,” said Andrew Dowling, a specialist on Catalan and Spanish history at Cardiff University.

The reluctance to get involved in bilateral talks with Ms Sturgeon was later echoed by a series of member states, such as Denmark, the Czech Republic, and Estonia. The German government told the Glasgow Herald that Scottish independence was an “internal” British issue and declined to comment further when asked if it would engage directly with the Scottish Government. Only Slovakia seemed to be more open to talks about a Scottish membership, underlying its pro-EU attitude.

Following this trail of half rejections, then Prime Minister David Cameron stressed the importance of keeping the United Kingdom together, pointing out that “the best way to secure Scotland’s place in the single market is for the United Kingdom to negotiate the closest possible relationship with the European Union, including in my view, the closest relationship with the single market”. This last prospect may no longer be true, given remarks by the German Chancellor Angela Merkel that controls on immigration would impede UK’s access to the single market.

The prospect of Scotland inside the UK but outside the EU has been growing so unpopular that it quickly raised the prospect of another independence referendum, such that US bank JP Morgan has said it now expects Scotland to vote for independence and institute a new currency by the time Britain leaves the European Union in 2019.

Francesca Tripaldi is a PhD student in Mathematics at King’s College London. She the President of the Education Policy Centre at King’s Think Tank in AY 2015/16, focusing on education inequality within the UK and the problems behind the new regulations of the Tier 4 Student Visa.

Britain after Brexit: Now it must – again – define itself as a nation

Britain has left the European Union. The historic referendum has left the sitting government in hot water. Now, David Cameron has pledged to resign, the pound has dropped drastically, and the UK’s legislators are left with the daunting task of redefining themselves, as well as renegotiating with the rest of the world. For some, the day marks a reclamation of British democracy, whereby the people of the country now are free from the bureaucratic shackles of Brussels. For others, it marks a historical step back, sending Britain into isolation again with the prospects of recession on the horizon.

“What lies ahead is a monolithic task for British lawmakers to build an independent future for Britain, and forge a path to the future in law and trade.”

Indeed, Britain’s political scene will see great changes in the next few months. The Prime Minister lost his great gamble on the EU, announcing his departure from office by October. Meanwhile the likes of Nigel Farage and Boris Johnson are declaring independence day. Likely, they will play a large part in the new face of the government. The result has also prompted Alex Salmond to call for a second independence referendum for Scotland, stating that it is the result of “Scotland being taken out of the EU against our will”.

This is a result that has been brewing for years, as anti-Brussels rhetoric has been on the rise from both sides of the aisle in British politics. For years, the political scene in the UK has been fiercely anti-Brussels. Now, with growing austerity and pressure on immigration what was once rhetoric has turned into a reality. ‘Remain’ campaigners were sure to make clear the risks of Brexit, and warned of an immediate recession. This morning, the FTSE 100 index opened with an 8% plunge, along with the sterling. What lies ahead is a monolithic task for British lawmakers to build an independent future for Britain, and forge a path to the future in law and trade. It must, again, define itself as a nation.

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Will Brexit be the end of the EU in general? Of course, this question has its roots not only in the rhetorical quips of the British government, but in the very structure of the EU itself. In the years to come, they will be facing referendum after referendum if they do not enact sweeping organisational reforms. Anti-EU rhetoric is high across many of the European countries and a fear is that this result will embolden nationalist movements across Europe, sparking more divide. Donald Tusk, President of the European Council has said that the European countries must meet to discuss the future of the EU and how they are to respond to the UK’s decision to leave. Facing disunity at historic levels both economically and politically, one thing remains clear: They must reform.

Britain’s history with the EU goes back to the Second World War. The European Coal and Steel Community banded together in the wake of WWII to align Europe economically to prevent the same kind of violent bloodshed. From then on it has created the common, and then single market, faced energy crises, dictators (General Franco, for example) and the environment. It has grown closer politically and in mutual defence, eventually establishing its own basis with the Lisbon Treaty.

“The EU must, too, redefine itself or face further disbandment.”

Britain joined the European Economic Community under the leadership of Conservative Prime Minister Edward Heath in 1973, supported by more than 67% of Britons in the 1975 referendum. The relationship was at times strained, with Thatcher pushing against a political union, and humiliation at “Black Wednesday”. But it also seemed to be growing ever closer, by way of Blair bringing the UK nearer to the Euro as well as enacting EU social protections. With all of its exemptions and powers in the institution, Britain will be invoking the Lisbon Treaty and packing its bags.

A project once known as ambitious and democratic has been widely labelled overbearing and bureaucratic. The future of the UK is at stake with economic and political pressures from within. The EU must, too, redefine itself or face further disbandment. We undeniably sit in times of ambiguity with regard to the future of both the UK and the EU. However, one thing is certain: There is a lot of work to be done.

Alexander Botashev
European Affairs Policy Centre President
King’s Think Tank