Globalisation, Ideology and Social Justice Discourses (Globalisation, Comparative Education and Policy Research, 30) 3030927733, 9783030927738

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Globalisation, Comparative Education and Policy Research 30

Joseph Zajda Yvonne M. Vissing Suzanne Majhanovich   Editors

Globalisation, Ideology and Social Justice Discourses

Globalisation, Comparative Education and Policy Research Volume 30

Series Editor Joseph Zajda, Faculty of Education and Arts, Australian Catholic University, East Melbourne, VIC, Australia Editorial Board Members Robert Arnove, Indiana University, Bloomington, IN, USA Birgit Brock-Utne, University of Oslo, Oslo, Norway Martin Carnoy, Stanford University, Stanford, CA, USA Lyn Davies, University of Birmingham, Birmingham, UK Fred Dervin, University of Helsinki, Helsinki, Finland Karen Evans, University of London, London, UK Kassie Freeman, Alcorn State University, Lorman, USA MacLeans Geo-JaJa, Brigham Young University, Provo, USA Andreas Kazamias, University of Wisconsin, Madison, WI, USA Leslie Limage, UNESCO, Paris, France Susan Majhanovich, University of Western Ontario, London, ON, Canada Marcella Mollis, University of Buenos Aires, CABA, Argentina Nikolai Nikandrov, Russian Academy of Education, Moscow, Russia Val Rust, UCLA, Los Angeles, CA, USA Advisory Editors Abdeljalil Akkari, University of Geneva, Geneva, Switzerland Beatrice Avalos, National Ministry of Education, Santiago, Chile Karen Biraimah, University of Central Florida, Orlando, FL, USA David Chapman, University of Minnesota, Minneapolis, MN, USA Sheng Yao Cheng, Chung Chen University, Chia-yi, Taiwan David Gamage, University of Newcastle Australia, Callaghan, NSW, Australia Mark Ginsburg, University of Pittsburgh, Pittsburgh, USA Yaacov Iram, Bar Ilan University, Ramat-Gan, Israel Henry Levin, Teachers College Columbia University, New York, NY, USA Noel McGinn, Harvard University, Cambridge, MA, USA David Phillips, Oxford University, Oxford, UK Gerald Postglione, University of Hong Kong, Hong Kong, Hong Kong Heidi Ross, Indiana University, Bloomington, IN, USA M’hammed Sabour, University of Joensuu, Joensuu, Finland Jurgen Schriewer, Humboldt University, Berlin, Germany Sandra Stacki, Hofstra University, Hempstead, NY, USA Nelly Stromquist, University of Maryland, College Park, MD, USA Carlos Torres, UCLA, Los Angeles, CA, USA David Willis, Soai University, Osaka, Japan

The Globalisation, Comparative Education and Policy Research book series aims to meet the research needs of all those interested in in-depth developments in comparative education research. The series provides a global overview of developments and changes in policy and comparative education research during the last decade. Presenting up-to-date scholarly research on global trends, it is an easily accessible, practical yet scholarly source of information for researchers, policy makers and practitioners. It seeks to address the nexus between comparative education, policy, and forces of globalisation, and provides perspectives from all the major disciplines and all the world regions. The series offers possible strategies for the effective and pragmatic policy planning and implementation at local, regional and national levels. The book series complements the International Handbook of Globalisation and Education Policy Research. The volumes focus on comparative education themes and case studies in much greater scope and depth than is possible in the Handbook. The series includes volumes on both empirical and qualitative studies of policy initiatives and developments in comparative education research in elementary, secondary and post-compulsory sectors. Case studies may include changes and education reforms around the world, curriculum reforms, trends in evaluation and assessment, decentralisation and privatisation in education, technical and vocational education, early childhood education, excellence and quality in education. Above all, the series offers the latest findings on critical issues in comparative education and policy directions, such as: • developing new internal strategies (more comprehensive, flexible and innovative modes of learning) that take into account the changing and expanding learner needs; • overcoming ‘unacceptable’ socio-economic educational disparities and inequalities; • improving educational quality; • harmonizing education and culture; • international co-operation in education and policy directions in each country.

Joseph Zajda  •  Yvonne M. Vissing  Suzanne Majhanovich Editors

Globalisation, Ideology and Social Justice Discourses

Editors Joseph Zajda Faculty of Education & Arts, School of Education Australian Catholic University East Melbourne, VIC, Australia

Yvonne M. Vissing Salem State University Chester, NH, USA

Suzanne Majhanovich Faculty of Education Western University London, ON, Canada

ISSN 2543-0564     ISSN 2543-0572 (electronic) Globalisation, Comparative Education and Policy Research ISBN 978-3-030-92773-8    ISBN 978-3-030-92774-5 (eBook) https://doi.org/10.1007/978-3-030-92774-5 © Springer Nature Switzerland AG 2022 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

TO REA, NIKOLAI, BELINDA, SOPHIE, IMOGEN, PAULINA, JAN, DOROTHY AND JIM

Foreword

A major aim of Globalisation, Ideology and Social Justice Discourses, which is the 30th volume in the 36-volume book series Globalisation, Comparative Education and Policy Research, edited by Joseph Zajda and his team, is to present a global overview of selected scholarly research on global and comparative trends in dominant Globalisation, ideology and social justice discourses reforms in comparative education research. It provides an easily accessible, practical yet scholarly source of information about the international concern in the field of globalisation, ideology, education and social justice policy reforms. Above all, the book offers the latest findings on discourses surrounding on-going education and social justice discourses. The book explores conceptual frameworks and methodological approaches applicable in the research covering globalisation, ideology and social justice policy reforms. Using a number of diverse paradigms, ranging from critical theory to globalisation, the authors, by focusing on globalisation, ideology and social justice, attempt to examine critically recent trends in education policies and social justice, and their impact on schooling. More than ever before, there is a need to understand and analyse both the intended and the unintended effects of globalisation and forces of globalisation on nations, organisations, communities, educational institutions and individuals around the world. This is particularly relevant to the evolving and constantly changing notions of nation-states, national identity and citizenship education globally. Current global and comparative research demonstrates a rapidly changing world where citizens are experiencing a growing sense of alienation, uncertainty and loss of moral purpose. The book contributes, in a very scholarly way, to a more holistic understanding of globalisation, ideology, education and social justice policy reforms. The book is both rigorous and scholarly and is likely to have profound and wide-ranging implications for the future of education policy and social justice reforms globally. East Melbourne, VIC, Australia  Joseph Zajda

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Preface

Globalisation, Ideology and Social Justice Discourses, which is Volume 30 in the 36-volume book series Globalisation, Comparative Education and Policy Research, edited by Joseph Zajda, Yvonne M. Vissing and Suzanne Majhanovich, presents a global overview of the nexus between globalisation, ideologies and standards-­ driven education reforms and implication for equity, democracy and social justice. Globalisation and competitive market forces have generated a massive growth in the knowledge industries that are having profound effects on society and higher educational institutions. One of the effects of globalisation is that the education sector is compelled to embrace the corporate ethos of efficiency, performance and profit-­ driven managerialism. As such, new entrepreneurial educational institutions in the global culture succumb to the economic gains offered by the neoliberal ideology and governance defined fundamentally by economic factors. Both governments and educational institutions, in their quest for global competitiveness, excellence, quality and accountability in education, increasingly turn to international and comparative education data analysis. All of them agree that the major goal of education is to enhance the individual’s social and economic prospects, which can only be achieved by providing quality education for all. Clearly, these new phenomena of globalisation have in different ways affected the current developments in education and policy around the world. First, globalisation of policy, trade and finance has some profound implications for education and reform implementation. On the one hand, the periodic economic crises (e.g. the 1980s, the financial crisis of 2007–2008, also known as the Global Financial Crisis or GEC in 2008), coupled with the prioritised policies of the International Monetary Fund (IMF) and the World Bank (e.g. SAPs), have seriously affected some developing nations and transitional economies in delivering quality education for all. Second, the policies of the Organisation for Economic Co-operation and Development (OECD), the UNESCO, the World Trade Organization (WTO) and the General Agreement on Trade in Services (GATS) operate as powerful forces, which, as supranational organisations, shape and influence education and policy. By examining some of the major education reforms and policy developments and merging paradigms in a global culture, particularly in the light of recent shifts in ix

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education reforms and policy research, this volume provides a comprehensive picture of the intersecting and diverse discourses of globalisation, education and social justice globally. The impact of globalisation on education policy and reforms and social justice is a strategically significant issue for us all. This volume, as a sourcebook of ideas for researchers, practitioners and policymakers in globalisation and education reforms, provides a timely overview of the current changes in education reforms and social justice both locally and globally. East Melbourne, VIC, Australia  Joseph Zajda 

Editorial by Series Editors

Volume 30 is a further publication in the Springer series of books on Globalisation, Comparative Education and Policy Research, edited by Joseph Zajda. Globalisation, ideology and social justice discourses, which is Volume 30 in the 36-volume book series Globalisation, Comparative Education and Policy Research, edited by Joseph Zajda, Yvonne M. Vissing and Suzanne Majhanovich, presents a global overview of the nexus between globalisation, ideologies and social justice discourses, and the implication for equity, democracy and human rights. Globalisation and the competitive market forces have generated a massive growth in the knowledge industries that are having profound effects on society and higher educational institutions. One of the effects of globalisation is that the education sector is compelled to embrace the corporate ethos of the efficiency, performance and profit-driven managerialism. As such, new entrepreneurial educational institutions in the global culture succumb to the economic gains offered by the neoliberal ideology, and governance defined fundamentally by economic factors. The book explores the ambivalent and problematic relationship between the state, globalisation, ideology and social justice discourses. Using a number of diverse paradigms, ranging from critical theory to globalisation, the authors, by focusing on globalisation, ideology and social justice reforms, attempt to examine critically recent trends in the political, social, economic and educational constructs affecting the nature of social justice policy and education reforms. At the level of critical discourse analysis, we need to consider dominant ideologies defining the nature and the extent of political and economic power, domination, control, the existing social stratification, and the unequal distribution of socially and economically valued commodities, both locally and globally. They all have profound influences on the directions of education and social justice policy reforms. Many scholars have argued that education systems and education reforms are creating, reproducing and consolidating social and economic inequality (McLaren & Farahmandpur, 2005; Milanovic, 2018; Zajda, 2021). The book offers a synthesis of current research findings on globalisation and social justice education reforms, with reference to major paradigms and ideology. The book analyses the shifts in methodological approaches to globalisation, social xi

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Editorial by Series Editors

justice education reforms, paradigms and their impact on social justice and pedagogy. The book critiques globalisation, policy and education reforms and suggests the emergence of new economic and political dimensions of cultural imperialism. Such hegemonic shifts in ideology and policy are likely to have significant economic and cultural implications for national education systems, reforms and policy implementations. The book also evaluates discourses of globalisation, cultural imperialism, social justice, human rights education and neoliberal ideology. It is suggested there is a need to continue to analyse critically the new challenges confronting the global village in the provision of authentic democracy, equality, social justice and cross-cultural values that genuinely promote a transformative pedagogy for implementing social justice in schools and societies. There is also a need to focus on the crucial issues at the centre of current and on-going social justice education reforms, and access to quality education for all, if genuine culture of learning, and transformation, characterised by wisdom, compassion and intercultural understanding, is to become a reality, rather than policy rhetoric. The authors focus on major and dominant discourses defining educational reforms: globalisation, social justice, democracy and ideology. These are among the most critical and significant dimensions defining and contextualising the processes surrounding the politics of social justice education reforms globally. Furthermore, the perception of globalisation as dynamic and multi-faceted processes clearly necessitates a multiple-perspectives approach in the study of social justice education reforms. In this the book, the authors, who come from diverse backgrounds and regions, attempt insightfully to provide a worldview of current developments in research concerning social justice education reforms both locally and globally. The book contributes in a very scholarly way, to a more holistic understanding of the nexus between globalisation, ideology and social justice education reforms. We thank the anonymous international reviewers who have reviewed and assessed the proposal for the continuation of the series (volumes 25–36), and other anonymous reviewers, who reviewed the chapters in the final manuscript. Globalisation, Comparative Education and Policy Research Series Volumes 25–36

Contents

1 Discourses of Globalisation, Ideology and Social Justice ��������������������    1 Joseph Zajda and Yvonne M. Vissing 2 Globalisation and the Ideologies of Children’s Rights ������������������������   13 Jane Williams 3 Globalization and the Issue of Language of Instruction: Examples from Tanzania and Norway ��������������������������������������������������   35 Birgit Brock-Utne 4 Social Justice and Human Rights in the 22nd Century – Equity Principle ��������������������������������������������������������������������������������������   55 José Noronha Rodrigues and Dora Cristina Ribeiro Cabete 5 Inclusive Education and Discrimination in France: The Case of Turkish and Arabic Teaching��������������������������������������������   83 Elisabeth Regnault 6 The Colour of Maternal Mortality: State Discourse and the Struggle for Reproductive Justice��������������������������������������������  101 Nazneen Khan 7 The COVID-19 Pandemic and the Globalization of Trauma: A Case for Health Care as a Human Right ������������������������������������������  115 Michele Solloway and Rebecca Stahl 8 Ideology, Social Justice and Global Homelessness��������������������������������  137 Yvonne M. Vissing 9 Human Rights and Cultural Resource Management in the United States����������������������������������������������������������������������������������  169 Kathryn E. Krasinski and Fran Seager-Boss

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Contents

10 Migratory Debt: On the Origins and Consequences of Uneven Migratory Mobility Between Centers and Peripheries������������������������  189 Leonardo Diaz Abraham and Rodrigo R. Gomez Garza 11 Mandatory Retirement of Older Adults: Notes from Iceland��������������  207 Jan Marie Fritz 12 The Pressure of Incommensurability: When Water Is Life Becomes Water for Life at the United Nations ��������������������������������������  229 Ruby Lindiwe Turok-Squire 13 The Multidisciplinary, Interdisciplinary, and International Global Policy Outlook of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) ������  243 Tanya F. P. Herring 14 Discourses of Globalisation, Ideology and Social Justice: Major Trends��������������������������������������������������������������������������������������������  259 Joseph Zajda Index������������������������������������������������������������������������������������������������������������������  273

About the Series Editor

Joseph  Zajda, BA (Hons), MA, MEd, PhD, FACE, coordinates and lectures in graduate courses: MTeach courses in: EDFX522, EDSS503 and EDFD546 in the Faculty of Education and Arts at the Australian Catholic University (Melbourne Campus). He specialises in globalisation and education policy reforms, social justice, history education, human rights education and values education. He has written and edited 48 books and over 150 book chapters and articles in the areas of globalisation and education policy, higher education, history textbooks and curriculum reforms. Recent publications include: Zajda, J. (Ed). (2021) 3rd International Handbook of Globalisation, Education and Policy Research. Zajda, J. (Ed). (2020). Globalisation, Ideology and Education Reforms: Emerging Paradigms. Zajda, J. (Ed). (2020). Human Rights Education Globally. Zajda, J (Ed.). (2020). Globalisation, Ideology and Neo-liberal Higher Education Reform. Zajda, J. & Rust, V. (2020). Globalisation and Comparative Education. Zajda, J. & Majhanovich, S. (Eds.) (2020). Globalisation, Cultural Identity and Nation-building: The Changing Paradigms. Zajda, J. (2019) (Ed.). Globalisation, Ideology and Politics of Education Reforms. Zajda, J. (2018). Globalisation and Education Reforms: Paradigms and Ideologies. Zajda, J. (2017). Globalisation and National Identity in History Textbooks: The Russian Federation. Zajda, Tsyrlina-Spady & Lovorn (2017) (Eds.). Globalisation and Historiography of National Leaders: Symbolic Representations in School Textbooks. Zajda & Ozdowski (2017). (Eds.), Globalisation and Human Rights Education. Zajda & Rust (Eds.) (2016). Globalisation and Higher Education Reforms. Editor and author of the Second International Handbook on Globalisation, Education and Policy Research. http:// www.springer.com/education+%26+language/book/978-­94-­017-­9492-­3; Zajda, J. (2014). ‘The Russian Revolution’. In G. Ritzer & J. M. Ryan (Eds.), The Wiley-­ Blackwell Encyclopedia of Globalization Online. Zajda, J. (2014); Zajda, J. (2014). ‘Ideology’. In D.  Phillips (Ed.), Encyclopedia of Educational Theory and Philosophy. Zajda, J. (2014). ‘Values Education’. In D. Phillips (Ed.), Encyclopedia of Educational Theory and Philosophy. Zajda, J (2008). Schooling the New Russians. Melbourne: James Nicholas Publishers.  

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About the Series Editor

He is the editor of the 36-volume book series Globalisation and Comparative Education (2013 and 2024). He edits the following journals below: http://www.jamesnicholaspublishers.com.au/journals/ct/; editor, Curriculum and Teaching, Volume 36, 2022. http://www.jamesnicholaspublishers.com.au/journals/es/; editor, Education and Society, Volume 39, 2022 http://www.jamesnicholaspublishers.com.au/journals/wse/; editor, World Studies in Education, Volume 22, 2022. His works are found in 605 publications in 4 languages and some 11,303 university library holdings globally. He is the recipient of the 2012 Excellence in Research Award, the Faculty of Education, the Australian Catholic University. The award recognises the high quality of research activities, and particularly celebrates sustained research that has had a substantive impact nationally and internationally. He was also a recipient of the Australian Awards for University Teaching in 2011 (Citation for Outstanding Contributions to Student Learning, for an innovative, influential and sustained contribution to teacher education through scholarship and publication). He received the Vice-Chancellor’s Excellence in Teaching Award, at the Australian Catholic University (Melbourne Campus). He was awarded an ARC Discovery Grant (with Monash University) for 2011–2015 for a comparative analysis of history national curriculum implementation in Russia and Australia ($315,000). He was elected as Fellow of the Australian College of Educators (June 2013) and completed (with Professor Fred Dervin, University of Helsinki) the UNESCO report: Governance in Education: Diversity and Effectiveness. BRICS Countries (2021). Book 30 Faculty of Education and Arts, Australian Catholic University, Melbourne, Australia

About the Contributors Leonardo  Diaz  Abraham  is a professor at the Universidad Autónoma Metropolitana, México City, México. He has completed his graduate studies at the Graduate Institute of Development and Cooperation of the Complutense University of Madrid. He also completed his BA in Political Science and Public Administration from the National Autonomous University of Mexico, with honours. He has participated in conferences and seminars in Mexico, Spain, France, England and Ukraine. He has served since 1997 as a full-time research professor at the Autonomous University of Campeche. He is teaching in the Department of Social Sciences at the Autonomous Metropolitan University. He has taught undergraduate and graduate courses on issues related to political and economic history of Mexico, functions and dynamics of the local public administration in Mexico, state and public administration in Mexico, and international cooperation for development and human rights.

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Birgit  Brock-Utne  is Professor of Education and Development, University of Oslo, Norway. She is the Director of the MPhil study in Comparative and International Education at the Institute for Educational Research, University of Oslo. From 1987 until 1992 she was a professor at the University of Dar es Salaam, Tanzania. She has written 10 books and more than 100 book chapters and journal articles. She directs three research projects dealing with the language of instruction in Tanzania and South Africa and the research network NETREED. Dora Cristina Ribeiro Cabete  is Professor of Law at the Faculty of Business and Economics at the University of Azores, Portugal. She is also a senior lawyer at NRDC & Advogados. She is co-author of the chapter ‘Ultracentralidade Euro-­ Atlântica Açoriana’ (2020), Revista Temas de Integração, Number 40, and ‘O Terrorismo a nova desordem mundial: uma vulnerabilidade’ (2020). Revista de Direito Constitucional e International (RDCI), 28(122), 369–385. Jan Marie Fritz  PhD, CCS, is a professor at the University of Cincinnati, OH; a distinguished visiting professor at the University of Johannesburg (South Africa) and a visiting professor at Taylor’s University (Malaysia). She also is a Fulbright– National Science Foundation Arctic Scholar in Iceland. She is a member of the Executive Committee of the International Sociological Association (ISA), an ISA representative to the United Nations and past president of the ISA’s division on Clinical Sociology. She is a member of the Mayor’s Gender Equality Task Force in Cincinnati and editor of Springer’s Clinical Sociology book series. She has been a docent at the Harriet Beecher Stowe House in Cincinnati. Rodrigo  R.  Gomez  Garza  has a degree in Economics from the Universidad Nacional Autónoma de México (UNAM), a master’s degree and a PhD in Social Sciences and Humanities from the Universidad Autónoma Metropolitana (UAM). He is a postdoctoral researcher at the Centro Regional de Investigaciones Multidisciplinarias (CRIM-UNAM), a research centre of UNAM, where he studies problems related to overproduction and its impact on the long-term stability of the world economy. His areas of research are political economy, environmental economics and geographical economics from a long-duration perspective. Tanya Herring  PhD, DMGT, Doctor of Laws Candidate, LLM, MBA, MSA, is a postdoctoral researcher with the Wales Observatory on Human Rights of Children and Young People, Bangor University/Swansea University, UK; research fellow with the International Communities Organization (ICO) of London and has a Llewelyn Williams Foundation Postgraduate Studentship, Wales, UK. Tanya’s academic pursuits are motivated by her desire to be a ‘voice-for-the-voiceless’ unaccompanied refugee and asylum-seeking children. Her work includes research in the prevention and protection measures and mechanisms against the multiple forms of trafficking and exploitation of children, legal empowerment and self-determination focused on the stateless child, refugee and non-refugee. Her socio-legal approach in supporting children’s rights and the law has globally engaged international

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government officials, legal and academic practitioners, and a host of child advocates in North America, Southeast Asia, the Oceania Region, Russia and Europe. Her research and body of work include prevention and protection interventions for stateless, refugee, non-refugee and forced displaced children (New England Journal of Public Policy), ICO Handbook on Self-Determination (ICO research centre) and the Palermo Protocols as a Conduit to Legal Empowerment and Peaceful Self-­ Determination (Ateliers Doctoraus). Nazneen Khan  is Associate Professor of Sociology at Randolph-Macon College, Ashland, VA. Using intersectional theory and methodology, her research and teaching focuses on US families, childhood and motherhood at the crossroads of broader racial, economic and political formations. Kathryn  E.  Krasinski  is Assistant Professor in Anthropology at Adelphi University whose research interests include Alaska, peopling the Americas, human-­ animal interactions and community archaeology. She has had her articles published in various international journals. Suzanne Majhanovich  (Western University) is a professor emerita and an adjunct research professor at the Faculty of Education, Western University, London, Ontario, Canada. She has written numerous published articles and edited books, and has guest-edited (with different others) five special issues of the International Review of Education. Her research interests include globalisation, internationalisation and education restructuring, as well as first- and second-language acquisition and the teaching of English and French in international contexts. She was the senior author of the French text series En français s’il vous plait and also worked at times on contract for the Ministry of Education developing curriculum guidelines for French as a Second Language and international languages. She has been active in the Ontario Modern Language Teachers’ Association and was awarded a life membership in 2000. Before joining a faculty of education, she taught secondary school French as a Second Language and German. She co-edited the special issue of the International Review of Education: Journal of Lifelong Learning (with Diane Napier and Norberto Fernández Lamarra), ‘New Times, New Voices’ based on selected papers from the thematic group on higher/adult education of the 2013 WCCES in Buenos Aires, which appeared as volume 60(4), 2014. Professor Majhanovich also co-edited several volumes on comparative education for Sense Publishers. In June, 2013 she was honoured to receive the David N. Wilson Award for contributions to comparative and international education from the Comparative and International Education Society Canada (CIESC) at the annual meeting in Victoria, BC. Elisabeth Regnault  is Associate Professor in Educational Sciences, University of Strasbourg, and has an habilitation in Comparative Education. She teaches at the INSPE (Long Life Education Faculty) in Strasbourg in France. Her fields of research are comparative education and intercultural education. She is involved in two

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laboratories (LISEC and CRSEA-CUCDB, Dijon). She has had her book Comparative Education Between Measure and Culture, Between Global and Local published in 2017. José  Noronha  Rodrigue  has a Doctor in Law (PhD) Cum Laude from the University of Santiago de Compostela (Spain), recognised as the equivalence of the degree of Doctor in Law by the Faculty of Law, University of Lisbon; Drug Enforcement Administration (DEA) in European Union Law (2008); a master’s in International Relations (2004); a postgraduate degree in Regional Law (1998); a postgraduate degree in Labour Law (2003) and a degree in Law (1996). He is VicePresident and Professor of Law at the Faculty of Economics and Management, University of the Azores, Portugal, responsible for all law subjects; and delegate for the Azores of the Instituto de Derecho Ibereamericano. He is the Chair of the UNCRC Policy Center and Vice-Dean and a professor at the Faculty of Business and Economics, University of the Azores. He is also author of the chapter ‘Refugees and Migrant Children in Europe’, in Vissing, Y. & Leitão, S. (2021). The Rights of Unaccompanied Minors – Perspectives and Case Studies on Migrant Children, and has contributed to several papers in international and national law journals. He is also a member of several editorial boards of international journals and international research. Fran Seager-Boss  is an archaeologist and cultural resources specialist, who now serves as a technical advisor on cultural resource management issues in south-­ central Alaska and assists in obtaining cultural resources grants. She works at the Adelphi University (KEK), Knik Tribe and Chickaloon Native Village, Alaska (FSB). Her interests include Alaskan history, public archaeology and lithic analysis. Michele Solloway  PhD, MPA, SEP, LMT, has over 30 years of health services and policy research experience, with a focus on vulnerable populations, child and family health, health financing and reform, adverse childhood experiences and trauma-­ informed systems of care. Dr Solloway has academic training and experience in neuroscience, public administration, organisational theory, programme planning and evaluation, and urban planning, and has worked in government, academic and non-profit environments. She is a health services research and programme evaluator for the SUNY Downstate Department of Geriatric Psychiatry, Geriatric Workforce Education Program. She also specialises in trauma healing at the individual and organisational levels, with expertise in somatic experiencing, polarity craniosacral and massage therapies. Rebecca Stahl  JD, is Staff Director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore School of Law, Baltimore, MD. Rebecca previously represented children in child welfare cases in Los Angeles County, LA, and Tucson, AZ.  Ms. Stahl was a Fulbright scholar in New Zealand, holds a Master of Law degree from the University of Otago, Dunedin, New Zealand, and studied the role of lawyers for children in family court cases.

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Rebecca has presented at a variety of international conferences focused on children’s rights and family law on topics ranging from the role of lawyers for children to trauma. Ms. Stahl co-authored Representing Children in Dependency and Family Law: Beyond the Law, a book regarding the psychological issues lawyers for children need to understand to better represent their child clients, and has written various published articles on the role of children’s representation, including a recent one on trauma, published in October 2020 in Family Court Review. Ruby Turok-Squire  completed her LLM in International Development Law and Human Rights at the University of Warwick, UK, in autumn 2021 and is now studying for the Graduate Diploma in Law at City, University of London. She is an assistant on a new creativity accountability research project at the University of Warwick. Recently, Ruby has worked as a general operations assistant for Action for Child Trauma International and as a research assistant for the Central England Law Centre. She previously taught English as a second language to refugees in Canada and the United Kingdom, worked as an editorial assistant for Lacuna magazine, studied English and Drama at the University of Warwick, taught Shakespeare at President Kennedy Secondary School, Coventry, UK, and studied English and Music Composition at Oberlin College and Conservatory, Oberlin, OH. Ruby has been awarded a Watson fellowship and a BMI Student Composer Award. Her first book of poems, The Phantom Fundamental, was published by Lapwing Press in the United Kingdom and Finishing Line Press in the United States. Yvonne  M.  Vissing  is a professor and Policy Chair for the United Nations Convention on the Rights of the Child, Founding Director of the Center for Childhood & Youth Studies and Chair of the Sociology Department at Salem State University in Salem, MA. Dr Vissing has also created a non-profit organisation to assist communities to advocate for improved community, child and family services. Author of five books, with several others near completion, Dr Vissing has presented her work at international and national meetings and is engaged in work that has both an international and a domestic focus. A true child advocate, she has trained thousands of professionals and students in a framework that is based upon the United Nation’s Convention on the Rights of the Child to work with, and for, children’s rights. As the research director for the Department of Sociology, she conducts both quantitative and qualitative research, and coordinates her region’s annual research conference. Her main areas of concentration have focused upon economic wellbeing of children and families, education, health, legal rights, and community obligation and comprehensive services. Vissing worked to create a national peace conference for youth and has been a major contributor to Oxford University’s Encyclopedia of Peace. Jane  Williams  is a professor at Swansea University, Swansea, Wales, UK.  Her career spans private practice at the Bar of England and Wales, UK, and Welsh government legal work and professional training, prior to joining Swansea University in 2000. Her academic work features extensive public and policy engagement. She

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founded and edited the Wales Journal of Law and Public Policy (2001–2006) and was pivotally involved in civil society efforts to secure legislation on the rights of the child in Wales and the establishment of the Welsh Youth Parliament. She co-­ founded the Observatory on Human Rights of Children and secured grant funding to establish the Children’s Legal Centre Wales. From 2014 to 2020 Jane led successive grant-funded projects developing human rights approaches to empowering children as researchers and agents of change. Her innovations in teaching include the introduction of modules on street law and human rights approaches to research with children. Her academic publications are in the fields of devolution, child law and children’s rights. Joseph  Zajda  is an associate professor at the Faculty of Education and Arts, Australian Catholic University (Melbourne Campus). He is a Fellow of the Australian College of Educators. He received the Vice-Chancellor’s Award for Excellence in Teaching and Peter Sheehan Excellence in Research Award (Faculty of Education) for his high quality of research activities, and which celebrates sustained research that has had a substantive impact nationally and internationally. He is also a recipient of the Australian Awards for University Teaching for his innovative, influential and sustained contribution to teacher education through scholarship and publication. He has written and edited 51 books and over 130 book chapters. He specialises in globalisation and education policy reforms, social justice, history education and values education. Recent publications include: Recent publications include: Zajda, J. (Ed). (2021) 3rd International Handbook of Globalisation, Education and Policy Research. Zajda, J. (Ed). (2020). Globalisation, Ideology and Education Reforms: Emerging Paradigms. Zajda, J. (Ed). (2020). Human Rights Education Globally. Zajda, J (Ed.). (2020). Globalisation, Ideology and Neo-liberal Higher Education Reform. Zajda, J. & Rust, V. (2020). Globalisation and Comparative Education. Zajda, J. & Majhanovich, S. (Eds.) (2020). Globalisation, Cultural Identity and Nation-building: The Changing Paradigms. He is also the editor of the thirty-six volume book series Globalisation and Comparative Education (2015 and 2024). He edits World Studies in Education, Curriculum and Teaching, and Education and Society for James Nicholas Publishers. His works are found in 605 publications in four languages and some 11,303 university library holdings globally. He was awarded an ARC Discovery Grant (with Monash University) for 2011–2015 for a comparative analysis of history national curriculum implementation in Russia and Australia ($315,000). Orcid iD: https://orcid.org/0000-­00034422-­9782.

Chapter 1

Discourses of Globalisation, Ideology and Social Justice Joseph Zajda

and Yvonne M. Vissing

Abstract  This chapter explores major discourses surrounding the problematic relationship between education, social justice and social justice policies, against the background of comparative education research. Social justice is an attempt to answer the following fundamental question: How can we contribute to the creation of a more equitable, respectful, and just society for everyone? The chapter analyses and critiques the overall interplay between education, social justice and the state. By focusing on the competing discourses of education and social justice, the chapter examines and evaluates critically both the reasons and outcomes of education reforms, policy change, with respect to social justice, and providing a more informed critique of the Western-driven paradigms of social justice and inequality. Keywords  Access · Accountability · Children’s rights · Citizenship education · Critical pedagogy · Culture · Democracy · Discourse · Discrimination · Equality · Ethnicity · Freedom · Globalization · Human rights · Human rights education · Human rights policy documents · Human rights violations · Ideology · Inequality · Justice · Moral education · Poverty · Principles of social justice · Prejudice · Social action · Social inequality · Social justice · Social justice discourses · Social stratification · Tolerance · United Nations · UNESCO · Values

J. Zajda (*) Faculty of Education & Arts, School of Education, Australian Catholic University, East Melbourne, VIC, Australia e-mail: [email protected] Y. M. Vissing Department of Healthcare Studies, Center for Childhood and Youth Studies, United Nations Convention on the Rights of the Child, Salem State University, Salem, MA, USA e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_1

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1.1  Introduction This book presents cutting-edge research that addresses major global trends in social justice and policy research. The book helps map out directions in policy research in the transformative educational landscape of the twenty-first century. The chapters in the book explore the themes of globalization, social justice and education in the broadest contexts. It includes administrative, ethical, pedagogy, social change, and social justice. The chapters critically analyse the dominant discourses of social justice. The authors employ a raft of diverse paradigms to ensure as broad a perspective on the issues of social justice in comparative and social justice education research, ranging from critical theory to discourse analysis along a wide variety of themes.

1.1.1  Defining Social Justice There are numerous definitions and conceptions of social justice. Definitions are based on a vast number of factors, including knowledge, expertise, dominant ideologies, social theories, educational paradigms, political correctness, and religion. For instance, in moral philosophy, ‘Justice’ is a set of universal principles which guide people in judging what is right and what is wrong, what is good and what is evil, no matter what culture and society they live in. Justice is one of the four pillars of moral philosophy, which include courage, temperance, and prudence. Social justice can be defines as a policy where all individual have and experience equal rights, equal opportunity, equal treatment, equal and just distribution of goods, and inclusive and culturally diverse environment. Miller (2000) added to his definition of social justice his principles of social justice, namely: access, equity, diversity, inclusive environment, participation, and human rights. He also suggested the following three paradigms of social justice: Distributive social justice (freedom, social cooperation and participation) Retributive social justice (liberty and protection of rights etc) Recognitive social justice (access, rights, equity, participation, means for all to exercise capability and actions) (see Miller, 2000). In addition to the above, social justice also covers economic, legal, social, educational, and political dimensions of justice. Social justice also refers to the ‘virtue which guides us in creating those organized human interactions we call institutions, and also imposes on each of us a personal responsibility to work with others’ (http:// www.cesj.org/thirdway/socialjustice-­defined.htm). Social justice, with reference to economic justice, as defined by Louis Kelso and Mortimer Adler (1958), was based on their three major principles: The Principle of Participation, The Principle of Distribution, and The Principle of Harmony. When Thomas Aquinas (1225–74), influenced by Aristotle, wrote that “Justice is a certain rectitude of mind whereby a man does what he ought to do in the circumstances confronting him” (quoted in Kirk, 1993), he believed that justice was a form of natural duty owed by one person to another. Similarly, Immanuel Kant

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(1724–1804) maintained that actions are morally right if they are motivated by duty without regard to any personal motive, or self-interest. Kant’s theory of social justice is based on the concept of selflessness and moral duty. His moral theory, based on duty, is also known as deontology. In Kant’s view, the only relevant feature of moral law is its universalisability, and any rational being understands the categorical imperative, namely, ‘Act only on that maxim which you can at the same time will to become a universal law’ (Flew, 1979, p. 191). In the modern sense, the term social justice, was first used in 1840 by a Sicilian priest, Luigi Taparelli d’Azeglio, and given exposure by Antonio Rosmini-Serbati (1848) in La Costitutione Civile Secondo la Giustizia Sociale. Subsequently, John Stuart Mill (1960, pp.  57–8) presented this anthropomorphic approach to social justice almost omnipotent status in his book Utilitarianism, Liberty and Representative Government: …we should treat all equally well…who have deserved equally well of us, and that society should treat all equally well who have deserved equally well of it, that is, who have deserved equally well absolutely. This is the highest abstract standard of social and distributive justice; towards which all institutions, and the efforts of all virtuous citizens, should be made in the utmost degree to converge.

At the end of the nineteenth century, the term “social justice” was used by social reformers as an appeal to the ruling classes to attend to the needs of the new masses of uprooted peasants who had become urban workers, or dispossessed (Zajda et al., 2006). When Maxine Greene (1998) wrote about social justice, and more specifically about ways we can teach for social justice, she embraced that interpretation of social justice that is concerned with basic human rights that all people are entitled to, regardless of conditions of economic disparity or of class, gender, race, ethnicity, citizenship, religion, age, sexual orientation, disability or health. She advocated that teachers had to become activists in raising their students’ consciousness, similar to Freirean ‘conscientisation’ of 1970, to conditions of oppression and to ways to work for the eradication of injustices and disparities in society. She wished teachers of conscience to take up the challenge: To teach for social justice is to teach for enhanced perception and imaginative explorations, for the recognition of social wrongs, of sufferings, of pestilences wherever and whenever they arise. It is to find models in literature and in history of the indignant ones who have taken the side of the victims of pestilences, whatever their names or places of origin. It is to teach so that the young may be awakened to the joy of working for transformation in the smallest places, so that they may become healers and change their worlds (Greene, 1998, xlv).

What is considered justice is not universally agreed-upon which has led to its confusion and disagreement from stakeholders. Social justice is a relatively recent concept and as such it is still being defined and refined. Philosophers such as Plato, Aristotle, Confucius, Rousseau, and Kant did not address the issue of justice or how to redress injustice from a social perspective. The origin of the concept of social justice seems to have been a response to the Industrial Revolution, socialism, and the rise of capitalism in the late 1800s. Capitalist exploitation of workers grew the attention of both the oppressed and progressives who saw political action as a solution to oppression. Social justice was associated with both survival and human

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dignity. It was also listed in the peace mission of the International Labour Organization during the early twentieth century (ILO, 2021). Later in that century, social justice was linked to the notion of a social contract with a view that each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others (Rawls, 1971). Social justice also became part of human rights treaties and human rights education. While formal definitions for social justice vary in wording, most share the importance of equal rights, equal opportunity, and equal treatment for people. They also share the appreciation of social mobility – which intersects with the notion of economic opportunity. Issues of justice are commonly linked to topics of gender, race, religion, employment, public services, taxation, education, health, disability, government, criminal justice, law, immigration, age, environment, and representation. Social justice has become a social movement to foster the development of a more social just world to support the manifestation of human rights in the everyday lives of people at ever level of society (Capeheart & Milovanovic, 2007). Steger (2013) examined 45 organizations from a market-globalist perspective and found that there is ideological coherence with respect to what he calls justice globalism, or a normative-­conceptual glue binding together the global justice ‘network of networks’ while at the same time to helping to generate policy alternatives to the neoliberal framework of markets (Steger 2013a, b). Kauder and Potrafke (2015) examined the relationship between globalization and social justice for 31 OECD countries. They found that those countries that experienced rapid globalization enjoy social justice. The policy implication is that permitting a national economy to become globally integrated is consistent with and promotes social justice. The words, social justice, became used as a proxy indicator of human rights during the 1960s. The United Nations charter ‘makes no explicit distinction between international justice, or justice among nations, and social justice, or justice among people….The concept of justice will be referred to … as international justice, with the principles of sovereign equality, non-intervention, and equal voting rights constituting the legal aspects of international justice’ (UN, 2006, p. 11). Social justice was not thought to be possible without economic redistributive policies. When it comes to operationalizing exactly what social justice is, the United Nations (2006) report on Social Justice in an Open World takes a decidedly economic emphasis when it comes to defining social justice. Other organizations, such as the National Association of Social Workers or the Center for Economic and Social Justice, affirm that social justice encompasses economic justice and is a part of all social institutions (Kelso & Adler, 1958; Miller et al., 1994). One needs to remember, however, that term justice, as used in current educational discourse is, in the main, social. The shift in meaning occurs when the term ‘social’ no longer describes the product of the virtuous actions of many individuals, but rather the utopian goal toward which all institutions and all individuals are ‘made in the utmost degree to converge’ by coercion. In that case, the ‘social’ in ‘social justice’ refers to something that emerges not organically and spontaneously from the rule-abiding behaviour of free individuals, but rather from an abstract ideal

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of legal justice, imposed from above (see Novak, 2000). One of key factor in achieving social justice is the emergence of a consensus that the society is working in a fair way, where individuals are allowed as much freedom as possible given the role they have within the society. Hence, true social justice is attained only through the harmonious cooperative effort of the citizens who, in their own self-interest, accept the current norms of morality as the price of membership in the community (see Zajda et al., 2006; Vissing, 2019; Vissing, 2020; Zajda, 2021). Traditionally, the concept of social justice has been associated with the moral and political philosopher, John Rawls, particularly in his works A Theory of Social Justice (1971) and Political Liberalism (1993). He draws on the utilitarian principles of Bentham and Mill, the social contract ideas of Locke, and the categorical imperative ideas of Kant. His reference to social justice was made in A Theory of Justice (1971), where he proposed that “Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others” (Rawls 1971, p. 3). Rawls (1971), argued that social justice requires the fair distribution of goods, and that social justice will be achieved when goods, rights, and responsibilities are equally distributed among individuals. Ryan (2006) suggested that Rawls was preoccupied with “how goods are distributed to individuals and whether or not each is receiving his or her due’, ignoring the patterned relationship, or the ‘structures or forms, through which this distribution occurs” (Ryan, 2006). This indicates that socio-economic structures in themselves, reflecting patterns of social stratification have a major impact on social justice outcomes (Vissing, 2020; Zajda, 2021).

1.2  The Changing Contextualization of Globalisation The relationship between globalisation and social justice is often described in dichotomous manner, either with globalisation being good or danger for society. It is far more complicated than that. A few decades ago, the issue of globalisation was analysed with an eye toward a central question in mind – was globalisation good or bad for a society with respect to issues of social justice? Those in support of globalisation alleged it would improve the lives of all individuals and lead toward greater equality, opportunity, and economic wellbeing. Those who were concerned that globalisation would have adverse effects on society focused on the potential of rising inequality, economic bifurcation, and exploitation of the most vulnerable and marginalized groups. Tension emerged between those who wished to advance globalisation and those who sought to curtail the expansion of global economic, material, and ideological foundations. It is clear today that neither of these bifurcated approaches are solely useful. The result of a bifurcated view of globalisation and social justice is that many social welfare and justice professionals may pursue solutions that are overly simplistic when society and individuals would be better served through a multifaceted, multicultural approach (MacDonald & Midgley, 2007). Research and its impact on

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education and knowledge have shown us that it is important to better understand the implications of the integration and amalgamation of different aspects of globalisation’s impact on all social institutions. These impacts can be found in primary and secondary group relations at the micro level, or in institutional impact at the family, education, business, technology, economy, politics, religion, and cultural macro levels. Globalisation is now undeniably a dominant driving force that shapes the everyday lives of people across the planet (Appadurai, 1990; Giddens, 1990, 2000; Robertson, 1992; Steger, 2013a, b; Steger et  al., 2013; Zajda & Majhanovich, 2021). Views of globalisation have evolved and it is regarded as a complex, constantly evolving social construct. Scholars now seek to better understand its forces and how to orchestrate globalisation in ways to create a balance between these extremes. Yet the verdict is out on how globalisation is to be addressed. For instance, Wallerstein (1979, 1980, 1989) understood globalisation as an ambitious world-systems model; Castells (1989, 2000) perceived globalisation as a form of networking between these institutions as a network society emerges while Giddens (1990, 2000) focuses on the disembeddedness of social relations that results because of globalisation. We can expect our definition and understanding of the impact of globalisation to shift and grow over time.

1.3  Methodology, Globalisation, Ideology, and Social Justice What we know with certainty is that social change impacts individual attitudes and actions. As Wallace (1971) pointed out in his conceptualization of “the great wheel of science”, current reality is always moving forward, thus the way we look at things must change as well. Thomas Kuhn (1970), in his study of scientific revolutions, notes that theories and paradigms logically evolve as we grow through time. What is true at one point may not be the case at another. Social factors determine anomalies and the need for paradigm shifts, and the directions of those shifts. Our ideological stance and the way we design our projects impacts what we will examine and how we will interpret its meaning. Data may convincingly be used to point to ways that globalisation enhances social justice and the protection of human rights, as well as ways that globalisation exploits and disenfranchises countless others. As sociologist Howard Becker (1967) noted in his ageless essay, ‘Whose Side Are We On?’, it should be expected that advocates for a position will go out of their way to find data that reinforces their position. In a perfect world from a social justice or human rights perspective, it should be the case that the safeguards present in a value-free and rigorously constructed scientific investigation, as outlined by sociologist Max Weber, should yield findings that reflect the true condition of the people being studied (Sharlin, 1974). Scholars in social justice research have employed different methodological strains in order to understand what social justice is and its impact. For instance, Kathy Charmez (2011) emphasized the importance of grounded methodology in studying social

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justice issues, where collecting data from individuals helps scholars to develop theory and a true understanding of a phenomenon as it exists. Charmez (2011) stressed factors of ‘inequities and equality, barriers and access, poverty and privilege, individual rights and the collective good’: When I speak of social justice inquiry, I mean studies that attend to inequities and equality, barriers and access, poverty and privilege, individual rights and the collective good, and their implications for suffering. Social justice inquiry also includes taking a critical stance toward social structures and processes that shape individual and collective life…. I include micro, meso, and macro levels of analysis, the local and global, as well as relationships between these levels. In the past, much social justice inquiry has assumed studying macro structural relationships but issues concerning social justice occur in micro situations and meso contexts, as well as in macro worlds and processes. Social scientists can study how the macro affects the micro and how micro processes also influence larger social entities. Global, national, and local social and economic conditions shape and are shaped by collective and individual meanings and actions. Yet when, how, and to what extent these conditions affect specific groups and individuals may not be fully recognized Charmez, 2011, p. 1).

The value positions of researchers impact what they choose to examine and how they examine it. Feagin’s (1999) focus on research concerns differential power, prestige, resources, oppression, and suffering. Work by many applied and clinical sociologists is motivated by value positions that direct them to use data as an impetus for social change (Karabanow, 2008; Sakamoto et al., 2009). Others choose to examine a social issue as a topic without having a commitment to changing it or promoting social justice (Wasserman & Clair, 2010). Some convey a taken-for-­ granted view of social justice (Gagne, 1996; Hyde & Kammerer, 2009; Jackson-­ Jacobs, 2004; Jimenez, 2008), while others study controversial topics because they illuminate theoretical issues (Einwohner & Spencer, 2005). In the quilt of social justice research, there will be different types of methodologies, theories, and intentions. This variation will be observed in the chapters of this book as well. The emphasis of all, however, is to focus upon the importance of social justice knowledge and its application, especially in the broadly defined field of education.

1.4  Social Justice from a Global Perspective The movement towards global social justice is one in transition and not yet fully realized for all peoples. Greater and more balanced redistribution of resources from those with them to those without them is deemed necessary for a new world order of justice to emerge (Fraser, 2003). Fraser observed that there was a shift away from mass production, strong labour unions, and normativity of the family wage, towards niche production, declining unionization, and increased female labour-force participation. She noted that the movement towards the economic order being one of service rather than manufacturing was occurring everywhere, which shifted the transnational flow of capital. Immigration, cultural pluralism, technological infusion, and proliferation of ideas all impact the way people are viewing others.

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1.4.1  S  ocial and Economic Inequality: Implications for Social Justice While one in ten people globally survived on less than $2 a day, the eight billionaires owned as much as poorest half of global population in 2017 (Oxfam International, 2017). In particular, the world’s 2153 billionaires have more wealth than the 4.6 billion people, who make up 60 percent of the planet’s population. This was documented in a new report from Oxfam International (2017). The report stated that the eight wealthiest individuals in the world own as much as the poorest half of humanity, and that the gap between rich and poor is widening. Oxfam International executive director Winnie Byanyima (2017) also added that ‘inequality is trapping hundreds of millions in poverty’: It is obscene for so much wealth to be held in the hands of so few when one in ten people survive on less than $2 a day...inequality is trapping hundreds of millions in poverty; it is fracturing our societies and undermining democracy (Oxfam International, 2017).

By comparison, some twenty years ago, 1.3 billion people struggled to live on less than $US1 a day, while the world’s richest 200 people doubled their net worth between 1994 and 1998 to more than $1 trillion (Shah, 2009). The world’s top three billionaires alone (1. Jeff Bezos, $177 B; 2. Elon Musk, $151 B. and 3. Bernard Arnault & family, $150 B.) possessed more assets than the combined Gross National Product of all the least developed countries and their combined population of 600 million people (Dervis, 2007). According to The World Inequality Lab’s annual, World Inequality Report the top 0.01% richest individuals—the 520,000 people who have at least $19 million—now hold 11% of the world’s wealth, up a full percentage point from 2020, the report found. Meanwhile, the share of global wealth owned by billionaires has grown from 1% in 1995 to 3% in 2021 (World Inequality Report, 2022).

1.5  Evaluation Globalization may enhance efficiency and economic growth and expand the domain of personal contact and communication. Nonetheless, globalization has also evoked discontent, because of widening economic and social inequalities, and social injustice. The relation between globalization and social justice merits attention in order to identify whether justifications for discontent are present and, if there are reasons for discontent, to establish whether globalization should be blamed (Hillman, 2008). The focus on cultural diversity and inclusion as a result of globalisation heightens the importance of social justice in the minds of individuals, corporations, and governments. The struggles of marginalized peoples and groups have become more salient political and economic issues, particularly around the politics of economic and social stratification, power, class, status, and opportunity. Social justice has become complicated when recognition struggles to effectively displace redistribution of socially valued commodities, such as wealth, income, power, class and

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education. The focus on individual, rather than collective needs, challenges the notions of what is good for ‘me’ versus what is good for ‘us’. How social justice is framed ideologically and instituted pragmatically from a global perspective will impact its embeddedness, acceptance, and outcomes. Class inequities, status hierarchies, opportunity optimization, and methods of redress are all critical factors as global social justice is examined a double-edged process, full of potential benefit and risk (Fraser, 2003). The issue of social justice then depends upon the unit of analysis (macro or micro), their ideological and political presuppositions, and the methodological assumptions employed. The chapters that follow in this book describe a wide range of ways that social justice can be contextualized. Most of them take the position that social justice is not just theoretical, but rather foundational to social action. The emphasis of the authors collectively are designed to show how the way social justice is operationalized and institutionalized has direct impact on the lives of individuals, groups, and societies.

1.6  Conclusion Despite the seemingly egalitarian spirit of policy reforms, and in view of the market forces dictating privatisation, decentralisation and marketisation in educational institutions, ambivalent legacies of the past, and unresolved critical education and policy issues, pertaining to social justice, continue, by and large, to remain the same, and are ‘still on the policy agenda’ (Zajda, 2021). They include, among other things, the stubborn issue of inequality. Some critics argue that social justice is difficult to achieve in a society, where social inequality debate is dormant, and where social and economic stratification is taken as a given. Thus, the creation of a more equitable, respectful, and just society for everyone is a dream for all empowering and egalitarian individuals. But it will remain a mere hollow rhetoric, or magic words, unless we debate more vigorously social inequality in the global culture. We need to critique the existing status quo of stratified societies and school systems, and act, accordingly, to change the ubiquitous economic and social stratification. For the sake of dispossessed humanity, we need to create a more equitable future for all.

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Sharlin, A. (1974). Max weber and the origins of the idea of value-free social science. European Journal of Sociology / Archives Européennes de Sociologie / Europäisches Archiv Für Soziologie, 15(2), 337–353. http://www.jstor.org/stable/23998534 Steger, M. (2013a). Globalization : A very short introduction. Oxford University Press. Steger, M. (2013b). Justice globalism: Ideology, crises, policy. Sage. Steger, M., Goodman, J., & Wilson, E. (2013). Justice globalism: ideology, crises, policy. Sage. https://doi.org/10.1093/actrade/9780199662661.003.0007 United Nations (2006). Social Justice in an Open World. Retrieved from https://www.un.org/esa/ socdev/documents/ifsd/SocialJustce.pef Vissing, Y. (2019). Child human rights education: Barriers in implementation. World Studies in Education, 20(1), 5–24. Vissing, Y. (2020). A review of human rights education in higher education. In J.  Zajda (Ed.), Human rights education globally. Springer. Wallace, W. (1971). The logic of science in sociology. Aldine. Wallerstein, I. (1979). The capitalist world-economy. Cambridge University Press. Wallerstein, I. (1980). The modern world-system II: Mercantilism and the consolidation of the European world economy, 1600–1750. Academic. Wasserman, J., & Claire, J. (2010). At home on the street: People, poverty, and a hidden culture of homelessness. Lynne Rienner. World Inequality Lab (2022). World Inequality Report. Retrieved from https://wid.world/ news-­article/world-­inequality-­report-­2022/021 Zajda, J. (2021). Globalisation and education reforms: Creating effective learning. Springer. Zajda, J., & Majhanovich, S. (Eds.). (2021). Globalisation, cultural identity and nation-building: The changing paradigms. Springer. Zajda, J., Majhanovich, S., & Rust, V. (2006). Education and social justice: Issues of liberty and equality in the global culture. In J. Zajda, S. Majhanovich, & V. Rust (Eds.), Education and social justice (pp. 1–12). Springer. Joseph Zajda (Australian Catholic University, Melbourne) is Associate Professor in the Faculty of Education and Arts at the Australian Catholic University (Melbourne Campus). He is a Fellow of the Australian College of Educators. He received Vice-­Chancellor’s Award for Excellence in Teaching and Peter Sheehan Excellence in Research Award (Faculty of Education) for his high quality of research activities, and which celebrates sustained research that has had a substantive impact nationally and internationally. He is also a recipient of the Australian Awards for University Teaching for his innovative, influential and sustained contribution to teacher education through scholarship and publication. He has written and edited 51 books and over 130 book chapters. He specializes in globalisation and education policy reforms, social justice, history education, and values education. Recent publications include: Zajda, J. (Ed). (2021). 3rd International handbook of globalisation, ­education and policy research. Dordrecht: Springer; Zajda, J. & Rust, V. (2020). Globalisation and comparative education. Dordrecht: Springer; Zajda, J (Ed). (2020a). Globalisation, ideology and neo-liberal higher education reform. Springer, Zajda, J. (Ed). (2020b). Human rights education globally. Springer, Zajda, J. (Ed). (2020c). Globalisation, ideology and education reforms: Emerging paradigms. Springer; Zajda, J. & Majhanovich, S. (Eds.). (2020). Globalisation, cultural identity and nation-building: The changing paradigms. Springer. He is also the editor of the thirty six volume book series Globalisation and Comparative Education (Springer, 2015&2024). He edits World Studies in Education, Curriculum and Teaching, and Education and Society for James Nicholas Publishers. His works are found in 445 publications in 4 languages and some 11,000 university library holdings globally. He was awarded an ARC Discovery Grant (with Monash University) for 2011-2015 for a comparative analysis of history national curriculum implementation in Russia and Australia ($315,000). Orcid iD https://orcid.org/0000-­00034422-­9782  

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Yvonne Y. Vissing is Professor and Policy Chair for the United Nations Convention on the Rights of the Child, Founding Director of the Center for Childhood & Youth Studies and Chair of the Sociology Department at Salem State University in Salem, Massachusetts USA.  Dr. Vissing has also created a nonprofit organization to assist communities to advocate for improved community, child and family services. Author of five books with several others near completion, Dr. Vissing has presented her work at international and national meetings and is engaged in work that has both an international and a domestic focus. A true child advocate, she has trained thousands of professionals and students in a framework that is based upon the United Nation’s Convention on the Rights of the Child to work with, and for, children’s rights. As the research director for the Department of Sociology, she conducts both quantitative and qualitative research, and coordinates her region’s annual research conference. Her main areas of concentration have focused upon economic well-­being of children and families, education, health, legal rights, and community obligation and comprehensive services. Vissing worked to create a national peace conference for youth, has been a major contributor to Oxford University’s Encyclopedia of Peace.  

Chapter 2

Globalisation and the Ideologies of Children’s Rights Jane Williams

Abstract  The inauguration, a century ago, of the League of Nations and the International Union to Save the Children galvanized in different ways the global progression of the idea of children’s rights. That idea was and remains a concoction of visions encompassing among others, saving children in distress, recognizing children as human beings of equal worth, and growing adults who will create a better future for the world in peace and prosperity. The 1989 United Nations Convention on the Rights of the Child translated these visions into the language of international law. It conferred on UN agencies and organizations the task of supporting State Party implementation within their own territories and via international cooperation. It created space for international non-governmental organizations to engage in advocacy for effective implementation. Today there are many examples across the world of integration of children’s rights in decisionmaking processes at all levels of governance. Actualization of children’s rights remains often frustrated as other claims, rooted in other globalized ideas and influences, or simply in demands for urgent responses to events, take priority. But the idea of children’s rights has remained resilient. It is a product of globalization of discourse, a subject of globalization of governance and an object of globalized civic movements. Keywords  Children · Children’s rights · Children’s rights implementation · Globalization · Human rights · Ideologies · UNCRC · Eglantyne Jebb · Janusz Korczak · Maria Montessori

J. Williams (*) Hillary Rodham Clinton School of Law, Swansea University, Swansea, UK e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_2

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2.1  G  lobalisation and the Ideologies of Children’s Rights: Introduction The chief thing that matters – perhaps the only real thing because it sums up everything else – is fidelity to one’s ideals. In every political idea there is some truth. The question is should we actualise the truth or not, shall we make it reflect itself in our policy, or leave it as an unrealised aspiration? (Eglantyne Jebb, Conversations with the Dead, cited in Clare Mulley, The Woman who Saved the Children, a Biography of Eglantyne Jebb, Founder of Save the Children, London: One World Publications, 2009, p. 188).

The idea of children’s rights at first presented a moral case for governments to exercise power in particular ways. The moral case was converted by the United Nations Convention on the Rights of the Child 1989 (‘the 1989 Convention’) into a legal obligation binding on almost every government in the world in respect of almost every child.1 This was possible only because of the globalization of law and the ideological trope of human rights as foundation stone of the post-2nd World War international legal order, beginning with the Charter of the United Nations and the Universal Declaration on Human Rights in 1948. From there, a family of human rights treaties grew. The 1989 Convention is one member of that family. It is possible to perceive the 1989 Convention as simply one of the specialized human rights treaties of the UN. 2 But this would be to overlook the earlier history of the ideologies of children’s rights and to miss insights into the genesis of some of the challenges that arise in efforts to make a reality of human rights in children’s lives. When looking at the actions or inactions of authorities that are required to give effect to the Convention, or when looking at common misconceptions about the human rights of children, it is instructive to remember the different visions that populated the Convention’s pre-history, the different schools of thought and the different disciplines and movements involved. The first movers and shakers for children’s rights were not from law, nor did they all have the same prescription for children’s rights or why children should have them. Milne (2008) provides a good starting point for consideration of the ideologies that fed first into the demand for, and then the content of, the global standards that we now have on children’s rights. He mentions three people, none of whom was a jurist or human rights activist, who represent the main strands of argumentation. The strands are claiming relief from distress as a right rather than an act of charity; recognizing the humanity of children; and developing people who will build a better world. Milne’s dramatis personae comprises Eglantyne Jebb, Januscz Korczak and Maria Montessori. Each was a Western European intellectual (English, Polish and Italian respectively) and each was concerned in some way with the plight of  Today, the only nation not to have ratified the Convention is the United States of America.  The others include the Convention on All Forms of Discrimination against Women, the Convention on the Protection of the Rights of All Migrant Workers and their Families, the Convention for the Protection of All Persons from Enforced Disappearance, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on Elimination of All Forms of Racial Discrimination. 1 2

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children in what the Convention would later blandly describe as ‘difficult circumstances’. This analysis of globalization and the ideologies of children’s rights begins by explaining the strands of thinking personified by these individuals. It then charts the progression of these ideas into international law, the conferment of roles on institutions and the opportunities for civic movements. It considers how the ideologies of children’s rights fare when pitched against other prominent ideologies, political priorities, exigencies, or events. In conclusion, it presents children’s rights as a resilient, but not dominant, suite of ideas, which remains a product, subject and object of several globalizations.

2.2  Children’s Right to Relief Eglantyne Jebb (1876–1928) was the daughter of a clergyman from a comfortable, middle-class background in England. She became a campaigner and fund-raiser for children in distress during the Balkan conflicts that preceded the First World War and then in the War itself and its aftermath. Her concern, shared with her sister Dorothy Buxton and her various friends and followers, was literally ‘saving the children’: she and Buxton were the founders of the International Union to Save the Children, initially a fund-raising campaign to provide food, shelter, and other necessities. Jebb started to argue for children’s rights because she became increasingly frustrated at the inadequacy of charitable relief in the face of the devastation wrought on children by war. As she explained in a letter written to a friend in 1920: The moment appears to have come when we can no longer expect to conduct large relief actions. If we wish nevertheless to go on working for the children … the only way to do it seems to be to evoke a co-operative effort of the nations to safeguard their own children on constructive rather than on charitable lines. I believe that we should claim certain rights for the children and labour for their universal recognition (Eglantyne Jebb, letter to Suzanne Ferriere, 1920, quoted in Mulley, p. 304).

Jebb was well-connected and respected amongst liberal, pacifist, internationalist society. She formed or found her way on to committees and advocacy groups including those which were important in the establishment of the League of Nations, the forerunner of the United Nations. This helped her to secure the adoption in 1924 by the League of her charter for children’s rights, sometimes called the ‘Geneva Declaration’. The child must be given the means requisite for its normal development, both materially and spiritually. The child that is hungry must be fed, the child that is sick must be nursed, the child that is backward must be helped, the delinquent child must be reclaimed, and the orphan and the waif must be sheltered and succoured. The child must be the first to receive relief in times of distress. The child must be put in a position to earn a livelihood and must be protected against every form of exploitation.

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The child must be brought up in the consciousness that its talents must be devoted to the service of its fellow men. The first four paragraphs of this succinct, almost poetic, text assert the welfare case for children’s rights and the fifth speaks to the notion of children as hope for building a better world. The text had enduring influence. The Geneva Declaration was taken as the starting point for what became the United Nations’ Declaration of the Rights of the Child 1959. Both the 1924 and the 1959 Declarations are recited in the Preamble to the 1989 Convention as contributing to international recognition of the need to extend particular care to children. Much of the text of the 1989 Convention is, in effect, a prescription of what nations must do to put into practice the vision Jebb expressed in those five sentences.

2.3  The Humanity of Children: Children’s Right to Respect Janusz Korczak (1878–1942) was the pen name of Dr. Henryk Goldsmit, pediatrician, children’s author and educator. He is most famous for running a Warsaw orphanage Jewish children and the fact that both he and the children in his care were murdered by the Nazis in the gas chambers of Treblinka. Korczak left a rich legacy of writings about educating and caring for children as well as several children’s books. As an educator, he was one of the first defenders of children’s rights. In A Child’s Right to Respect, he argued that children are not just the object of care and concern on the part of adults, but that children have their own subjective existence because, as he put it, ‘there aren’t any children, there are just people’. His observations of children fed his belief in their full human dignity, their right to respect as beings in the here and now, not just ‘future people, future workers, future citizens’ (Korczak 1928, p. 27). He ran the orphanage in Warsaw as a sort of micro-­democracy. The children helped with the practical work, for which they were paid. They had their own parliament which made the rules for the orphanage, their own court to deal with rule-breaking and meted out their own punishments, within a value system which featured forgiveness, fairness, and leniency. The children ran their own newspaper. This in addition to more familiar aspects of education, so in totality the children learned practical skills for life alongside how to be responsible citizens, absorbing ethical values of love, sympathy, respect and acting for the common good. While Korczak (1928), like Jebb, was concerned for the welfare of children, his vision went beyond welfare and embraced recognition of children as human beings of equal worth to adults, recognition of their capacity to exercise agency in their own lives in the here and now, contributing to the decisions that affect them. He saw Jebb’s Geneva Declaration as a confusion of children’s rights with the obligations of adults, especially governments. His own prescription for children’s rights was targeted at a different malaise from that to which Jebb’s work was dedicated. Korczak argued that adults make errors in their relations with children which set up

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unnecessary conflicts and constraints injurious to everyone involved and to humankind. To cure the malaise, he proposed ‘the child’s right to respect’: Respect for their lack of knowledge Respect for the work of acquiring knowledge Respect for their failures and their tears Respect for their possessions and their budgets Respect for the secrets and doubts of the hard work of growing Respect for the current hour, for today (From a Child’s Right to Respect, p. 37) This is a plea for recognition of the humanity of children and respect for the condition of childhood itself, ideas which later in the century would find expression in the new sociologies of childhood. Korczak’s imprint on the substance of the 1989 Convention is less obvious than Jebb’s, but his inspiration informed the decade of negotiation and resonate with the so-called ‘participative rights’3 as well as the concept of evolving capacity.4 As Milne (p. 48) notes, the proposal for the Convention was presented to the United Nations in 1979 by Polish diplomat Adam Lopatka, who knew and admired Korczak.

2.4  The Child as Hope for the Future Despite Korczak’s criticism of the Geneva Declaration, he shared with Jebb and with the last in this selected trio of influencers, Maria Montessori, the idea that treating children better will lead to a better world in peace and prosperity. Maria Montessori (1870–1952) was a doctor and educator whose methodology can be traced back to the political philosophy of Jean Jacques Rousseau. This challenged the idea of children being born in sin and needing to be brought to right ways through discipline and instruction. Montessori’s approach was founded in the belief that a child has innate natural qualities and potential for good which needs just the right educational and social environment to bring it out. Her methods were child-­ centered, enabling the child to explore and learn in their own way within a carefully planned and controlled structure. This individualistic approach was in fact a successor to a string of developments by practitioners who took an interest in the application of medical science or physiology to education. (Boyd, 1917, p.  17). These pioneers, including Montessori herself, were especially interested in children with disabilities but their work also influenced thinking and practice in mainstream Western education during the twentieth century. Their work had significant impact on the development of a more individualistic approach compared to earlier methods that laid greater emphasis on formulaic methods and rote-learning.

 Normally identified as Articles 12–17.  Article 5 and see Save the Children and UNICEF.

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Greater concern for the individual characteristics of children is sympathetic to the idea of their rights as human beings. However, it was not articulated by Montessori as a human rights issue, rather as the means to achieving a future societal goal. This is the idea of the upbringing of children, including their education, as means to meet future needs, whether in terms of economic development, political systems or international relations. In this view children, their education, and their individuality, are instrumental to meeting those future needs. Commenting on Montessori’s approaches, educational historian and theorist William Boyd, agreed that change was required to develop the adults who could exercise political citizenship in a democratic system: With political institutions like ours, requiring for their successful working an intelligent populace, it is intolerable that the children who are to be citizens of the future should continue to be educated under conditions that tend to discourage initiative and to minimize individuality. It is imperative in the interests both of the community and its members that some practical reconciliation of individual needs and social demands should be effected by means of a right organization of the whole system of education. (Boyd, 1917, p. 188)

In Montessori’s vision, exemplified in her collected lectures delivered during the anxious years preceding the outbreak of the Second World War, the effort is instrumental to the goal of developing a ‘science of peace’. The new pedagogical approaches, she argued, should be aimed at development of children into adults capable of building new social structures to secure the conditions for lasting peace, at creating the people who will somehow improve our world. ‘Averting war’ she said, ‘is the work of politicians; establishing peace is the work of education’. (Montessori-Pierson, p. 24). This connection between society’s treatment of children now and achievement of a better future for the world would be woven into the Convention itself, notably in the Preamble, discussed below, and Article 29 on the aims of education. It also featured in the operation of the United Nations and its agencies. In 1965, UNICEF was awarded the Nobel Peace Prize for the ‘promotion of brotherhood among nations’, in recognition that ‘work for children is work for peace’, and UNICEF’s Executive Director would remark that ‘The welfare of today’s children is inseparably linked with the peace of tomorrow’s world’. (UNICEF, 2018)

2.5  Other Ideas from ‘The Century of the Child’ Before the establishment of the post-Second World War international legal order, a cocktail of ideas and aspirations had emerged around the idea of children’s rights, roughly coinciding with the life spans of our three selected protagonists. At the same time, big shifts were occurring in western societal thinking about children and childhood, and about parental and governmental responsibilities for children. The sciences of child development, child psychology and education were developing rapidly in industrialized countries alongside the enactment of laws to provide basic

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state education, health and welfare services and to protect children in the workplace, children without parental care, and neglected children. A best-selling book by Ellen Key (Key, 1900) declared that the twentieth century would be ‘the century of the child’ and she argued that the world’s children should be the central work of society during the twentieth century. In law, the principle of the ‘best interests of the child’ acquired ascendancy in many legal systems when dealing with disputes about the upbringing of children and in juvenile justice. (Breen, 2002) The principle assumed early prominence in the interpretative work of the Committee on the Rights of the Child which identified its articulation in Article 3 as one of the four ‘General principles’ of special and pervasive importance. (UN Committee, 2003) Being already established as the legal lynchpin for resolution of conflicts about the custody and upbringing of the child (O’Halloran, 1999), the best interests principle has proved the easiest aspect of the Convention for many court systems to absorb, echoing Todres (1998: 170), who stated that the ‘primary aspiration’ of the 1989 Convention was to advance the best interests of the child. Whether this view helps to promote the idea of child as human rights-holder is questionable: Cantwell (2017) makes a powerful case that the way in which ‘best interests’ have become a prism through which to assess compliance with children’s rights is antithetic to acceptance of the equality of the human rights of children with those of adults. In sociology, from around the 1990s, independently of the 1989 Convention, there emerged a ‘new sociology of childhood’ (for example, James et  al., 1998) which became a powerful influence on intellectual debate about the rights of the child. Essentially sociologists began to identify different conceptualizations of childhood, recognizing that childhood is a social construction that is relatively modern in origin, and both varied and variable over time and place. Sociologists began to use ethnographic and participative methods to investigate children’s lives not just in terms of traditional developmental milestones but through children’s own senses and experiences. These approaches were influential in the development of childhood studies which has become increasingly popular as an academic discipline, highly multidisciplinary but centrally concerned to understand children as the best informants in their own lives. The 1989 Convention is a frequent point of reference in this field, especially those provisions which emphasize children’s moral and political agency. Accordingly, when the time came to draft what became the 1989 Convention, and thereafter to put it into practical effect, ideas abounded about the claims of children and childhood on society. The Convention created new space in which the associated sciences, practices and protagonists could press their case. Although law would now claim children’s rights, understanding and implementing children’s rights remains necessarily a multi-disciplinary enterprise (Woodhouse, 2020, pp. 14–16). The Convention conferred a gravitas on the ideas of children’s rights, converting good intention into legal obligation within a by then established international legal system. To complicate matters, however, that space was dominated by a yet further stream of ideologies around ‘human rights’.

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2.6  Ideologies of Human Rights The rights set out in the Universal Declaration of Human Rights were agreed by a ‘culturally, philosophically and religiously diverse’ committee of thinkers convened by UNESCO in 1947. According to Macready (2018, p. 4) they ‘found it remarkably easy to agree the content of the rights without attempting to reach a common ideological justification’: It is related that at one of the meetings … someone expressed astonishment that certain champions of violently opposed ideologies had agreed on a list of those rights. “Yes,” they said, “we agree about the rights but on condition that no one asks us why.” That “why” is where the argument begins (Maritain, quoted in Macready: 5)

This intriguing vignette reminds us that while we now have a multitude of human rights instruments agreed by the UN and other international institutions, the texts of these instruments have been negotiated and agreed without at the same time attempting to articulate consensus on the underlying philosophies or theoretical justifications for rights. In fact, if the negotiators and drafters had been required to reach a theoretical or philosophical consensus, there would very possibly have been no human rights treaties at all. This is because there is no theoretical consensus on rights, and this is even more the case when it comes to children’s rights. The different theories include the ‘will theory’, rooted in political philosophy concerning the relationship between citizen and state and the idea of a social contract between competent, rational individual citizens and their governments. This theory cannot underpin human rights of children, at least those too young to have the requisite knowledge and understanding of government and society, or to engage in politics. Then there is the ‘interests theory’, which works a little better for children, because it sees rights as flowing from the interests that all human beings have, giving rise to a legitimate expectation that government will respect and respond to those interests. This approach utilizes rights as claims for protection and provision of services. There are other theories, rooted in varied propositions about the legitimacy of exercise of governmental power or the protective obligations of the state towards its citizens, such as the ‘public trust’ theory (Fox-Decent, 2011) or the idea of vulnerability associated with the work of Martha Fineman at Emory Law School.5 The point here is not to explore in depth the merits of each or any of these theories when applied to children’s rights: that work has been done elsewhere, and philosophical debates continue about whether, and what, rights are ‘right’ for children (for example Archard & Macleod, 2002; Freeman, 2010, O’Neill, 1988, among many others). For present purposes it is necessary simply to note that despite the overwhelming political agreement on the content of children’s rights as set out in the 1989 Convention, when it comes to operationalizing that content, different actors will hold different degrees of belief in or agreement on rights for children,

 https://web.gs.emory.edu/vulnerability/index.html

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and if they agree that children’s rights should be recognized, they may not agree about why. This is especially significant because when it comes to a child and a child’s rights, or children’s rights generally, we must always think about someone else, in a way that does not normally apply when thinking about adults’ human rights. Most obviously, that someone else is a parent or person with parental responsibility. For children in alternative care, it may be a public body or foster parent. Even children with no identifiable protective adult in their lives, such as street children or unaccompanied asylum-seeking children, are unable to negotiate their relations with governmental authority in the way that adults might. What adults believe and how they regard the children whose lives they touch are critical factors in realization of children’s rights. Adults whose decisions will or may affect children cannot be assumed to have mentally signed up to the 1989 Convention, nor to share a single idea about its motivation or underlying visions.

2.7  Forging the Convention 1979–1989 By 1979, when the proposal for a Convention on the Rights of the Child was put forward, the UN system had already adopted as foundational principle that universal human rights were binding on all countries, over and above their national laws and institutions. The core content of those rights had been written and established within the UN system in the Universal Declaration of Human Rights and the two Covenants,6 even if not universally agreed. The 1989 Convention sits within what is sometimes called ‘the human rights project’, referring to the growth of acceptance of human rights as primary obligation on governments and primary objective of international institutions. The human rights project has become deeper, broader, more complex, and more ambitious over time. Its legislative product can be grouped into ‘three generations’ of international human rights laws (Verhellen, 2000, p. 51). The first generation comprises laws with deep historical roots: ‘the first defensive weapons against sovereign rulers’. These are the civil and political rights such as the right to freedom of opinion, freedom of the press, the right of peaceful assembly, the right to life, quiet enjoyment of property and physical integrity. The second generation comprises economic, social and cultural rights, for example the right to an adequate standard of living, work, social security, health, education and leisure. These require positive action and resource allocation from the state compared to the mere non-interference required in relation to the first generation rights. The third generation is sometimes described as ‘people’s rights’ or ‘solidarity rights’, such as the right to peace, healthy environment, cultural integrity and self-government.

6  International Covenant on Civil and Political Rights; International Covenant on Economic Social and Cultural Rights

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So it was in this context, within the structures of the UN and the post-war international legal order, that the task began of forging a legally binding treaty on the rights of the child. As seen above, the original Polish draft drew heavily on the 1959 Declaration, in turn inspired by the 1924 Declaration. The draft was referred to a Working Group, the view having been taken that it contained too much that was aspirational in character and unsuitable for a legally binding instrument. The decade-long process of negotiation that followed was notable for the Working Group’s adoption of a consensus approach and the prominent role of NGOs and UNICEF alongside State Party representation. (Verhellen, 2000; Detrick, 1992; Todres, 1998). In the end, the text presented to the UN General Assembly was adopted unanimously. Various attempts have been made to categorize the content of the 1989 Convention. In terms of the three generations of international human rights laws, it spans the first and second generations, with some shades of the third generation in its references to the rights of families, kinship groups and communities. But it would be misleading to present it simply in those terms since it contains provisions that are unique to its subjects, notably the best interests principle in Article 3 and the concept of evolving capacity in Article 5. Verhellen (2000, 78–80) identifies ‘General Principles’ and ‘General Provisions’, others adopt the ‘3 Ps’ of ‘provision, protection and participation’ or ‘4 Ps’, adding ‘prevention’. The content could equally be classified in terms of the ideological strands identified above: child-­ saving, the humanity of children and the production of good citizens. Through that lens, the articles on provision for children in especially difficult circumstances would fall within the first, the civil and political rights would fall within the second and articles about survival and development, access to health care, education, and the purposes of education in the third. The Preamble to a treaty is instructive when seeking clues as to the ideas, compromises and composites that underlie the eventual negotiated text. The Preamble to the 1989 Convention rehearses the foundational principles of the United Nations itself: equality, inalienability of rights; freedom, justice, peace: dignity and worth of all human persons, promotion of ‘social progress and better standards of life in larger freedom’, and non-discrimination on grounds of status. It situates the idea of the child as hope for the future in the context of the mission of the UN and the international human rights project: Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,’ (UN, 1989).

It situates the 1989 Convention in the growing family of international human rights instruments, recalling a clutch of UN documents that contain specialised protection for children in difficult circumstances. It justifies the creation of a special Convention for all children by reference to their inherent vulnerability due to ‘physical and mental immaturity’ which means that they need ‘special safeguards and care’. It

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recalls the declaration in Article 25 of the Universal Declaration of Human Rights that in the context of core second generation rights, ‘motherhood and childhood are entitled to special care and assistance’. Far from being a Convention that pits children’s rights against adults’ or parents’ rights, the text is highly respectful of the parental role. The Preamble recognises the family as the ‘fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children’. The substantive provisions of the Convention include many references to the role of the family, the need for the family, kinship groups and community for support in carrying out its function of nurturing children, and it imposes obligations on the state to respect and support this. It refers also to the importance of family ties, of ensuring that children have the chance to know and be cared for by their natural parents wherever possible and unless against their best interests. It does not however impose requirements directly on parents or carers. This is consistent with it being a human rights treaty, to which the parties are states, not individuals. It is rare for a treaty to impose direct obligations on individuals. The 1959 Declaration, by contrast, not being a treaty, did call upon parents and voluntary organisations as well as governments and public authorities to recognise children’s rights and seek to implement them. Thus, the Preamble draws together some of the ideological strands from the Convention’s pre-history at the same time as clearly declaring children’s rights as a part of the wider, global human rights project. It declares the responsibility of the developed world to assist children in developing countries via international aid and assistance, and for all countries to work together through international mechanisms to implement the Convention. The scene was set for the global system of the UN to develop machinery for globalized scrutiny of governments’ performance on children’s rights.

2.8  G  lobalization of Implementation: The UN System and the UNCRC Having claimed children’s rights for the global human rights project, the 1989 Convention creates the conditions for globalization of scrutiny, if not governance, of implementation. This centers on the role and remit of the Committee on the Rights of the Child established under Article 44. The Committee sits within the administrative structure of the Office of the UN Hugh Commission on Human Rights and is empowered to call not only on UNICEF but on any other of the UN agencies or organizations for assistance and advice on matters within their areas of expertise, whether for an overall purpose or to help a State Party to implement the Convention in practice in their own country. The arrangement is like that established for the other UN human rights treaties, although the Committee on the Rights of the Child was exceptional in not having a communications procedure for individual

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complaints until 2011.7 The Committee is empowered to issue guidance on implementation and has in fact published some 21 General Comments between 2001 and 2021. General Comment 5 is on general measures of implementation and includes key structural elements the Committee expects to see in every country. These include a national strategy and action plan, a dedicated Minister or Cabinet Committee for children, a children’s commissioner or ombudsperson and formal structures for children’s participation in decision-making, regular data collection, target-setting and internal monitoring. States Parties must submit an initial report following ratification and then report periodically to the Committee on what they have done to give effect to the Convention. This reporting and monitoring system generates a dynamic for change at domestic level, (Woll, 2000) especially when NGOs at national and international level cooperate to gather and submit evidence to the Committee and can follow up with in-country advocacy the recommendations given by the Committee’s Concluding Observations on the State Party report. This machinery is administrative rather than judicial. It is set up to help and to press States Parties to implement the Convention in practice in their own spheres. The mode of engagement is diplomatic or political (in the wide, non-party sense). There is no court of children’s rights and even though the ‘communications procedure’ enables an individual or a group to claim to be victims of a violation, this is closer to an administrative process than a judicial one. It is broadly comparable to the role of many national ombudspersons: the Committee tries to get a friendly settlement, but can inquire further and can follow up, and can report to the UN General Assembly and other UN organs. UNICEF rapidly occupied a special place in the system of the 1989 Convention. Originally a post-Second World War emergency relief fund, UNICEF became in 1953 a permanent UN agency with a broad remit on children’s welfare and international development. UNICEF is expressly named in Article 45 of the 1989 Convention as a source of expertise and support both for the Committees work in scrutinizing states parties and in assisting states parties to develop implementation strategies. UNICEF’s own Mission Statement8 declares that its work is ‘guided by’ the 1989 Convention and that it ‘strives to establish children’s rights as enduring ethical principles and international standards of behavior towards children’, a strangely under-ambitious goal given the legally binding status of the 1989 Convention. However, UNICEF’s engagement with international and national children’s NGOs as well as national governments and agencies, its in-country programmes and initiatives and not least its voluminous data-gathering and reporting has become a core part of the working of the machinery of the 1989 Convention. There are echoes here of ambitions voiced early in the short life of the League of Nations, around a Commissioner for Children and the formation of the Child Welfare Committee. (Mulley, 2009, p. 309)

7  Optional Protocol to the Convention on the Rights of the Child on a communications procedure 2011. 8  https://www.unicef.org/about-us/mission-statement

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Outside of the UN system, the 1989 Convention influenced regional supra-­ national initiatives including regional children’s rights instruments, starting with the African Charter on the Rights and Welfare of the Child in 1995. Promoting protection of the rights of the child is one of the objectives of the European Union specified in Article 3(3) of the Treaty on European Union, and further provision is made in the Charter of Fundamental Rights of the EU. The 1989 Convention is cited and influential in the jurisprudence of international courts, including the European Court of Human Rights, and has been deployed in national and sub-national litigation (Liefaard & Doek, 2015). In the 30  years since its adoption, the Convention has been the subject of varied forms of national and sub-national incorporation into domestic law, creating associated political, legal and civil society levers of accountability and advocacy on children’s rights (Lundy et al., 2013). In short, the 1989 Convention allowed for the development of systems and structures to help push the universal standards on children’s rights into legal systems at regional and national levels. This was a globalization of process, scrutiny and advocacy for children’s rights.

2.9  A Global Industry of NGO Activity The decade of negotiation of the 1989 Convention was a highly formative, developmental time for children’s NGOs, spawning new or strengthening existing international networks and advocacy groups. After the adoption of the 1989 Convention this industry continued to grow, with the Convention as its pivot. A prime example is CRIN, the Child Rights Information Network. CRIN developed from discussions amongst experts from child rights organizations including UNICEF Geneva Regional Office, UNICEF New York, Defence for Children International and Save the Children Sweden who organized a Facilitating Group to consider initially the information needs of the Committee on the Rights of the Child and what would happen with information generated through the reporting process of the Convention. Membership of the Group included organizations and alliances that themselves had grown from the decade of negotiation, notably Defence for Children International and the NGO Group for the Convention on the Rights of the Child. Others were the International Centre for Childhood and the Family, the International Save the Children Alliance, the, the Office of the High Commissioner for Human Rights, Save the Children Sweden, Save the Children UK, the UNICEF Innocenti Research Centre and UNICEF.  In 1995, the Facilitating Group was expanded to include southern organizations: the African Network for the Prevention and Protection Against Child Abuse and Neglect, the Arab Resource Collective, Butterflies, Concerned for Working Children and Instituto Interamericano del Niños.9 This collective of NGOs worked closely with the Committee to inform, influence and

 https://archive.crin.org/en/home/about/history-crin.html

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support the establishment of the Committee’s working methods. They examined the information requirements that the Committee would have and mapped the capacities of child rights organizations to gather and handle information that would feed into the monitoring and reporting process. By 1997 CRIN was publishing a global directory of child rights organizations and a regular newsletter via email. A directory of research on the Convention was published and a database on information on the Convention was developed which formed the basis for what is now the Treaty Bodies Database. The following year saw NGO alternative reports submitted to the Committee being made public on the internet. Work led by UNICEF Innocenti Research Centre in the Facilitating Group produced a thesaurus of child rights terminology in English, French and Spanish, a glossary of common and internationally recognized concepts in child rights, and a children’s rights bibliography. The UNICEF Innocenti Research Centre, based at a 600-year-old Florentine establishment originally designed for the care of foundling children, continues to be a prodigious producer of research and information on children’s rights. CRIN is now a formally structured and managed information network, describing itself as ‘a creative think tank producing new and dynamic thinking on human rights, focusing on children and young people’.10 The NGO Group for the Convention on the Rights of the Child, one of the original Facilitating Group members, later re-branded as Child Rights Connect, a non-­ profit association of NGOs based in Geneva whose statutes were approved both under Swiss national law and by the General Assembly of the UN. Child Rights Connects mission is to advocate and support full implementation of the Convention by ‘convening and engaging with civil society and other relevant actors, by fostering cooperation, and by empowering children’s rights defenders, including children, to meaningfully participate in global advocacy for children’s rights at different levels.’11 https://childrightsconnect.org/wp-­content/uploads/2016/05/Statutes_2016. pdf The organization provides a bridge between the UN process and children’s NGOs throughout the world, significant in facilitating alternative reporting, including children’s direct participation in Committee hearings (REF Child Rights Connect evaluation?). To this industry of NGO and UN agency activity around the machinery of the 1989 Convention, the Convention has strengthened global advocacy on sectoral and single issues, for example the global initiative to end corporal punishment.12Articles of the Convention have been deployed with some success in strategic litigation by coalitions of lawyers, children’s and environmental organizations, albeit with inevitable variations due to the ways in which different national constitutions and laws absorb the international obligations. (Todres, 1998; Liefaard & Doek, 2015) Latterly, increasing attention is being given to the potential of the 1989 Convention in litigation on climate change and environmental degradation. Even in the USA where

 https://home.crin.org/  https://childrightsconnect.org/wp-content/uploads/2016/05/Statutes_2016.pdf 12  https://endcorporalpunishment.org/ 10 11

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resistance to ratification persists, there are examples of child-led, adult-supported litigation on environmental issues, such as the coordinated multi-state actions supported by Our Children’s Trust.13 International networking and knowledge exchange around children’s rights means that litigation in different parts of the world can be mutually reinforcing for activists and advocates.

2.10  Global Industry of ‘Mainstreaming’ The industry of the NGO and UN bodies around the 1989 Convention has produced a wealth of literature aimed at ‘general measures of implementation’. The treaty base for this work is to be found in the general duty to implement using ‘all appropriate legislative, administrative and other measures’ set out in Article 4, the duty to make the Convention known, including reports and the Committee’s recommendations, in Article 42, and the reporting obligation itself in Article 44. The Committee gave its prescription for States Parties approaching the ‘task of implementation’, urging engagement of all sectors of society, including children; law reform, and legal enforceability; special structures; monitoring; training; and ‘other activities in Government, parliament and the judiciary at all levels’. (UN Committee, 2003, para 1.) In the same General Comment, the Committee reflected that: One of the satisfying results of the adoption and almost universal ratification of the Convention has been the development at the national level of a wide variety of new child-­ focused and child-sensitive bodies, structures and activities – children’s rights units at the heart of Government, ministers for children, inter-ministerial committees on children, parliamentary committees, child impact analysis, children’s budgets and “state of children’s rights” reports, NGO coalitions on children’s rights, children’s ombudspersons and children’s rights commissioners and so on.’ (para. 9). While some of these developments may seem largely cosmetic, their emergence at the least indicates a change in the perception of the child’s place in society, a willingness to give higher political priority to children and an increasing sensitivity to the impact of governance on children and their human rights (para 10).

Another whole General Comment, (UN Committee, 2002) is devoted to the role of national independent human rights institutions for children or ‘NIHRICs’ as part of the structural support required to mainstream children’s rights in government and society. There has been a marked increase in establishment of offices sometimes called ‘children’s commissioner, or child rights commissioner’ or ‘children’s ombudsperson’ since the 1989 Convention was adopted. The Committee on the Rights of the Child sees such offices as an integral part of a national strategy and a driver of children’s rights approaches throughout the states’ activity and in wider society.

13

 https://www.ourchildrenstrust.org/

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Consistent with the view of the 1989 Convention as part of the international human rights project, the NIHRIC is, from the perspective of the UN system, a specialist variation on a national independent human rights institution (NIHRI), an idea which dates to the foundational thinking of the UN itself. ECOSOC Resolution 2/9 of 21 June 1946 invited Member States to ‘consider the desirability of establishing information groups or local human rights committees within their respective countries to collaborate with them in furthering the work of the Commission on Human Rights’. NIHRIs were seen as a means of assisting the international human rights treaty bodies to be more effective within member States, providing a bridge between national and international levels outside of national government and diplomatic representation. Article 36 of the Vienna Declaration and Programme of Action 1993 reaffirmed the important and constructive role played by national institutions for the promotion and protection of human rights, in particular in their advisory capacity to the competent authorities, their role in remedying human rights violations, in the dissemination of human rights information, and education in human rights. The 1989 Convention was adopted 4 years before the Vienna Declaration and does not specifically mention a NIHRI or NIHRIC as part of the machinery for national implementation, but General Comments 5 and 2 make clear the UN Committee’s view that the general obligation of implementation in Article 4 UNCRC implies that such institutions should be established. Inquiry about progress of NIHRICs has become a standard aspect of the Committee’s scrutiny and Concluding Observations on periodic State Party reports. Viewed top down from the international human rights project, NIHRICs, like NIHRIs, are the eyes and ears of the international administrative system within individual States Parties. In general, however, these institutions have not emerged in-country explicitly as instruments of the international human rights project or specific treaty obligations. A survey conducted in 2009 for the Office of the High Commission on Human Rights noted that while for some of the 61 respondent countries the Vienna World Conference on Human Rights and the Vienna Declaration 1993 had had a galvanizing effect on creation of NIHRIs, many situated their institutions firmly in the context of national constitutional transitions and constitutional reform. A UNICEF review of NIHRICs (UNICEF, 2012) emphasizes the link between the geo-political context of the creation of NIHRICs and the degree and nature of their achievements, noting regional variations. It highlights in Europe and Latin America the early adoption of the institutional concept and pioneering work in comprehensive child rights policies and legislative reform in Latin America and the Caribbean; in Asia, active involvement of NGOs in watching over the concept; in sub-Saharan Africa, a constitutional anchor afforded to most NHEICs; in the Middle East and North Africa, the blossoming of discussions to create child focused independent rights institutions; and in many common law countries, a focus on children in difficult circumstances (UNICEF, 2012, p. 183). Thus, despite the common international treaty obligations, these institutions emerge at particular times, in particular political contexts at national and sub-­ national levels. Domestic politics, economic conditions and constitutional

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developments can be seen to have influenced policy choices for setting up and running children’s rights institutions. Nonetheless, UNICEF’s, 2012 report situates NIHRICs firmly within the aegis of the UNCRC which it refers to as ‘a global social contract’ with children. The NHRIC is described as ‘a vital part of a coordinated approach to protecting and promoting children’s rights among all parts of society’, supportive of a ‘whole child’ and ‘whole of government’ approach (pp. 17–18). And once established, children’s commissioners and similar offices rapidly gravitate towards a global, lateral community linked to the UN system from which they gain not only knowledge exchange and community of interest but also gravitas or supranational constitutionality when interacting with their own governments (Rees & Williams, 2016).

2.11  Child Rights Impact Assessment UNICEF’s vision of the operation of the ‘global social contract’ with children places priority on development of tools to give practical impact to national strategies, notably child rights-based approaches and within these, child rights impact assessment or ‘CRIA’. In 2004 UNICEF’s Statement of Common Understanding, (UNICEF, 2004a) set out its own approach to integrating human rights in all the activities and programmes within its mandate. Subsequent work with the Danish Institute for Human Rights produced guides, toolkits and case studies on integrating children’s rights into impact assessment aimed not only at government and state agencies but also at businesses. (e.g. UNICEF and Danish Institute for Human Rights, 2013) Across the globe, children’s commissioners, agencies and children’s NGOs and academic researchers have engaged in the development of guides for CRIA, often as part of a wider child rights approach. CRIA are becoming more commonly used as part of policy process. Sometimes they stand alone as one of several impact assessments governments, or other organization deploying the CRIA, require. Sometimes they are integrated in equalities, human rights or general impact assessments. In this development, the dynamic of the UN system can be seen at work, how it engages different actors and how it interacts with nationally rooted ideas and priorities. An example is New Zealand. An academic article published in 2006 (Hanna et al., 2006) demonstrates the case for ‘child impact reporting’ focusing on the need to make ‘children’s wellbeing’ a guiding principle in political process and policy making. change. The case is not put in terms of their rights and argues for ‘child’ impact assessment rather than ‘child rights’ impact assessment. In the next reporting cycle for New Zealand, the UN Committee’s Concluding Observations recommended that the Government of New Zealand should do more to consider the views of children and young people at all levels of decision-making (REF COs NZ 2011). An in-country programme of work followed, led by the New Zealand Ministry of Social Development, aimed at establishing ways to obtain the views of children in policy and legislation development and to considering the impacts of policy and

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legislation on children. In 2018 the New Zealand Government issued its Child Impact Assessment Guide and Tool,14 referring to the UN Committee and aspects of the 1989 Convention but maintaining children’s ‘wellbeing’ as the overall policy goal. It is an example of the Convention patriated to service pre-existing policy trajectories that owe more to the common law’s understanding of welfare than to rights. The 1989 Convention is referenced in the text, suggesting that a shift in the policy framework has occurred, whilst the overall focus remains on wellbeing. Similar narratives reflecting a conceptual working out of the relationship between rights and wellbeing (or welfare) can be found elsewhere. (For example, in Wales see Williams, 2012; Croke et al., 2021). CRIA, like HRIA, are deployed not only by governments but also in international development, in business, trade agreements and activities of public authorities. Harrison suggests the growth of this industry partly is in part because the repeated calls by the UN and other key actors for HRIAs to be undertaken but also because it benefits the needs of NGOS and others for better evidence to support their advocacy (Harrison, 2011). Hence, different interests are served by CRIA, as one aspect of the wider, globalized effort to mainstream children’s rights in decision-­ making. In practice, it is easy and perhaps inevitable that the patriated administrative process will foreground existing concepts with which decision makers and practitioners are familiar – like best interests, well-being or welfare. Conversion of recognition of children’s interests to acceptance of their human rights thus remains, at this level, a work in progress.

2.12  Children’s Rights and Competing Priorities So how children’s do rights fare, in practice, when decisions get made? Do children’s rights operate as ‘trumps’ in situations of conflict and suffering? It is of course impossible to measure accurately the impact of children’s rights on children’s lives. Outputs of research, much of which is sponsored by NGO and international agencies, pre-eminently but not only UNICEF, tell us more today than we have ever known about the conditions of childhood and children’s experiences across the world. Research suggests that where CRIA are used, they do produce greater focus on the impact of proposed policy on children and to some extent on the obligations in the 1989 Convention. (Hoffman, 2020) There is less evidence of decisions then being made which clearly prioritize children’s rights over other policy goals and pressures. Policy actors operate in the context of many globalizations as well as local, specific political or business pressures. This can result in inconsistencies or seeming disingenuity even where they set out to actualize children’s rights. States may

14  https://www.msd.govt.nz/about-msd-and-our-work/publications-resources/resources/child-­ impact-­assessment.html

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legislate for children’s rights, even embed them in their constitution, yet at the same time maintain sectoral laws and practices which contravene the standards set by the 1989 Convention. Multi-national businesses may undertake CRIA, engaging with children and their communities, whilst failing to address children’s rights abuses like child labor exploitation in their production and supply chains. Where efforts are made to integrate children’s rights in public services, they may be frustrated by lack of necessary resource or training. Urgent political responses to major crises, like the global financial crisis of 2007–2008 and the Covid 19 pandemic of 2020–2021, have prioritized the needs of economies and adult populations over those of children, at least in the early stages, and when attention has focused on the impact of children, it is articulated more often in terms of the impact on children’s future capabilities as adults than on access to their rights as children in the here and now. Actualization of children’s rights requires effective children’s services within a strong welfare state, in whatever form that takes. It requires strong material support for families, high quality out-of-family care provision and investment in public health and education. This implies redistributive economic policies and a strong welfare state: essentially a social democratic political agenda. The neo-liberal ideologies that came to the fore in the politics of significant global economies in the latter part of the twentieth century are now acknowledged to have increased economic inequality, global poverty and environmental degradation, all of which affect children especially acutely, both in the here and now of their lives and in terms of their future life chances. Arguably, the ideologies of sustainable development, and the political responses to the actualities of the climate change, including the UN Sustainable Development Goals, present a further challenge to implementation of children’s rights. Children’s rights assert the claims and interests of children in the here and now not merely as immanent adults or somehow representing the future. In discourse around sustainable development, children are too often characterized as simply the latter. However, there is scope for the complementary progression of both agendas. Children now and yet unborn have most to lose from global failure to progress towards the Sustainable Development Goals. There are examples both at international and national levels of recognition that children’s rights and sustainable development, whilst products of different streams of ideological and normative development, are mutually reinforcing, even interdependent (Croke et al., 2021).

2.13  Conclusion Children’s rights have been presented here as a product of globalization of discourse, a subject of globalization of governance and an object of globalized civic movements. Globalization or globalizations are in that sense a success story for the ideologies of children’s rights. James Grant, Executive Director UNICEF 1994 Statement to UN General Assembly, 1994 (quoted in Todres, 1998, p. 159) said that ‘the largest unified movement in pursuit of rights the world has ever seen may be

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emerging around the Convention on the Rights of the Child’. Globalizations present myriad choices for governments, business, civil society and consumers. This chapter has shown how the ideologies of children’s rights came together to make a moral case for exercising those choices in particular ways. The moral case has been converted into legal obligation, binding almost every government in respect of every child. This was possible only because of the globalization of law and the ideological acceptance of human rights as foundation stone of the international legal order in which rights were claimed for children and almost universally recognized. A much-­ expanded community of interest in children’s rights, pivoting around the 1989 Convention, continues to advocate for actualization of children’s rights globally and at all levels of governance. The ideologies of children’s rights have proved resilient but not often dominant at the points of time and place where crucially impactful decisions are made affecting children’s lives. The global community of interest in the rights of the child, to return to Jebb’s phrase, ‘wants to go on working for children’, for all or any of the reasons identified in the visions of children’s rights that have been discussed here. But, judging by the ever-increasing of the conditions of children and childhood generated by the industry of children’s rights, relief for children, equality of regard for children, and the ‘right’ kind of education stubbornly elusive for the same or even greater proportion of the world’s children than a hundred years ago when the story of globalization of children’s rights began.

References Archard, D., & Macleod, C. (Eds.). (2002). The moral and political status of children: New essays. Oxford University Press. Boyd, W. (1917). From Locke to Montessori, A critical account of the Montessori Point of view. Harrap & Co. Breen, C. (2002). The standard of the best interests of the child: A Western tradition in international and comparative law. Brill. Cantwell, N. (2017). Are “best interests” a pillar or a problem for implementing the human rights of children? In T. Liefaard & J. Sloth-Nielsen (Eds.), The United Nations convention on the rights of the child, taking stock after 25 years and looking ahead (pp. 61–72). Brill Nijhoff. Croke, R., Turner, R.  T., Connor, P., & Edwards, M. (2021). Utilising the international human rights framework to access the benefits of paediatric research in the Covid era: A wales case study. The International Journal of Children’s Rights, 29(2), 326–352. Detrick, S. (1992). The United Nations convention on the rights of the child: A guide to the “Travaux Preparatoires”. M. Nijhoff Publishers. Fox-Decent, E. (2011). Sovereignty’s promise, the state as fiduciary. Oxford University Press. Freeman, M. (2010). The human rights of children. Current Legal Problems, 63(1), 1–44. Hanna, K., Hassal, I., & Davies, E. (2006). Child impact reporting. Social Policy Journal of New Zealand, 29, 32–42. Harrison, J. (2011). Human rights measurement: Reflections on the current practice and future potential of human rights impact assessment. Journal of Human Rights Practice, 3(2), 162–187. Hoffman, S. (2020). Ex ante children’s rights impact assessment of economic policy. International Journal of Human Rights, 24(9), 1333–1352. James, A., Jenks, C., & Prout, A. (1998). Theorizing childhood. Polity Press. Key, E. (1900.) Barnets a rhundrade. . Reprint (1996) & New York: Arno Press (1972).

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Korczak, J. (1928). A child’s rights to respect (Sean Gasper Bye, Trans.). Ombudsman for children, Poland, 2017. ISBN 978-83-89658-48-7 Liefaard, T., & Doek, J. (2015). Litigating the rights of the child, The UN Convention on the rights of the child in domestic and international jurisprudence. Springer. Lundy, L., Kilkelly, U., & Byrne, B. (2013). Incorporation of the United Nations convention on the rights of the child in law: A comparative review. International Journal of Children’s Rights, 21(3), 442–463. Macready, J. D. (2018). Hannah Arendt and the fragility of human dignity. Lexington Books. Milne, B. (2008). From chattels to citizens? 80 years of Eglantyne Jebb’s Legacy to children and beyond. Chapter 4. In A. Invernizzi & J. Williams (Eds.), Children and citizenship. Sage. Montessori, M. (2019). Education and peace (Vol. 10). Montessori-Pierson Publishing House. Morowa, A. (2003). Vulnerability as a concept of international human rights law. Journal of International Relations and Development, 6(2), 139–155. Mulley, C. (2009). The woman who saved the children: A biography of Eglantyne Jebb, founder of Save the Children. One World Publications. O’Halloran, K. (1999). The welfare of the child, the principle and the law. Arena. O’Neill, O. (1988). Children’s rights and children’s lives. Ethics, 98(3), 445–463. Rees, O., & Williams, J. (2016). Framing asymmetry: Devolution and the United Kingdom’s four children’s commissioners. International Journal of Children’s Rights, 24, 1–26. Save the Children and UNICEF Innocenti. (2005). The evolving capacities of the child. (written by Gerison Lansdown). UNICEF. Steger, M. B. (2020). Globalization: A very short introduction (5th ed.). OUP. Todres, J. (1998). Emerging limitations on the rights of the child: The UN convention on the rights of the child and its early case law. Retrieved from https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?article=1498&context=faculty_pub UN. (1989). United Nations convention on the rights of the child. UN. UN Committee on the Rights of the Child. (2002). General comment on national independent children’s rights institutions CRC/GC/2002/2. UN. UN Committee on the Rights of the Child. (2003). General Comment on general measures of implementation, CRC/GC/2003/5. UN. UNICEF. (2004a). Mission statement. https://www.unicef.org/about-­us/mission-­statement. UNICEF. UNICEF. (2004b). https://www.unicef.org/media/84796/file/SOWC-­2004.pdf (pp.  92–93) UNICEF. UNICEF. (2012). Championing children’s rights: A global study of independent human rights institutions for children. Innocenti Publications. UNICEF. (2013). Children’s rights in impact assessments, A guide for integrating children’s rights into impact assessments and taking action for children. UNICEF. UNICEF. (2018). Emerging from the ashes of war: 1946–1979. Photo essay. Retrieved from https://www.unicef.org/stories/learning-­experience-­19461979 Verhellen, E. (2000). Convention on the rights of the child (3rd ed.). Garant. Williams, J. (2012). General legislative measures of implementation: Individual claims, public officer’s law and a case study on the UNCRC in Wales. The International Journal of Children’s Rights, 20(2), 224–240. Woll, L. (2000). Reporting to the UN Committee on the rights of the child: A catalyst for domestic debate and policy change? International Journal of Children’s Rights, 8, 71–81. Woodhouse, B. (2020). The ecology of childhood, how our changing world threatens children’s rights. New York University Press. Jane Williams is a Professor, Swansea University. Her career spans private practice at the Bar of England and Wales, UK and Welsh Government legal work and professional training, prior to joining Swansea University in 2000. Her academic work features extensive public and policy engagement. She founded and edited the Wales Journal of Law and Public Policy 2001–2006 and was  

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pivotally involved in civil society efforts to secure legislation on the rights of the child in Wales and the establishment of the Welsh Youth Parliament. She co-founded the Observatory on Human Rights of Children and secured grant funding to establish the Children’s Legal Centre Wales. From 2014–2020 Jane led successive grant-funded projects developing human rights approaches to empowering children as researchers and agents of change. Her innovations in teaching include the introduction of modules on Street Law and Human Rights Approaches to Research with Children. Her academic publications are in the fields of devolution, child law and children’s rights. [email protected]

Chapter 3

Globalization and the Issue of Language of Instruction: Examples from Tanzania and Norway Birgit Brock-Utne

Abstract  In this chapter the author provides an analysis of how globalization is reshaping education when it comes to the issue of language of instruction. The chapter demonstrates the ways the social democratic and equality oriented educational policies of Nyerere had to give way to policies of powerful neo-liberal institutions like the World Bank with its capitalist ideology and pressure for privatization. Brock-Utne’s work at the University of Dar es Salaam kindled her interest in the language of instruction issue in Africa. The old colonial languages are retained as languages of instruction, even though Africans converse and trade in African languages. The colonial languages are not used outside of the class-room and mastered only by a small minority of the population. The pressure for privatization has come with a policy of strengthening the use of English. This works against social justice. The chapter compares the situation in Tanzania with the one found in an industrialized country in northern Europe, Norway. In the Nordic countries English has become the most important language for academic research and publishing, affecting the status of the Nordic languages. Also in Norway, a process is taking place which can be termed Anglobalization. This policy works against social justice. The chapter demonstrates that some of the same globalizing processes are taking place everywhere. They have to do with market economy, competitiveness and contributing to social divisions among people. An elite is created which has more in common with elites in other countries than with their own people. The new social-­democratic-­ center government in Norway is out to defend Norwegian as an academic language, but is met by resistance from many academics. The question arises: Who is to determine the language of instruction policy of a country? In whose interest is the policy adopted? Keywords  African languages · Colonial languages · Globalisation · Language education · Language instruction · Social divisions · Social justice

B. Brock-Utne (*) Department of Education and Development, University of Oslo, Oslo, Norway e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_3

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3.1  T  he Situation in Tanzania – Privatization and Language of Instruction The first President of Tanzania, Julius Nyerere, was strongly against private schooling. He was afraid that private schooling would work against social justice and lead to greater disparities between people. He was also a great promoter of the national language, Kiswahili, a language which he saw could unite most Tanzanians against colonial rule. Nyerere did a lot to promote Kiswahili, translating personally two of Shakespeare’s plays into Kiswahili. And on December 8th, 1962 President Julius Nyerere for the first time addressed Parliament in Kiswahili. Mentioning this event Saida Yahya-Othman and Herman Batibo (1996, p. 376) note that it is from that date one can say that Kiswahili had become the national language of Tanganyika. In 1967 the Prime Minister directed all government business to be conducted in Kiswahili (Senkoro, 2005). Nyerere saw how the use of Kiswahili would increase the literacy rate in the country rapidly and mobilize the people for an African social democratic policy, which he would term ‘ujamaa’ (familyhood). Nyerere proclaimed that Kiswahili should be the language of instruction in all primary schools. The primary schools should last for 7 years and be free for all children. Donor pressure, especially from the World Bank, forcing poor countries to adopt the neo-­liberal agenda of the Bank, has destroyed the equality oriented policy of Nyerere and strengthened the use of English as language of instruction even in primary schools (cBrock-Utne & Vuzo, 2022). This was the result of severe donor pressure to strengthen the use of English in education. In July/August 1984 the British government funded a study on levels of English presently existing across the educational system. The study was carried out in July/ August 1984 by Dr. Clive Criper (1984), a linguist from Edinburgh University, and Mr. Bill Dodd, an administrator with long experience from Tanzania. Their study confirmed earlier research showing that the levels of English were too low in most secondary schools for effective learning to take place. Here are two of their findings: • Only about l0% of Form IVs are at a level that one might expect English medium education to begin (Criper & Dodd, 1984, p. 14). • Less than 20% of the University sample tested were at a level where they would find it easy to read even the simpler books required for their academic studies (Criper & Dodd, 1984, p. 43). Based on these findings Criper and Dodd (1984) reached the following astonishing conclusion: ‘The Ministry of Education should issue an unambiguous circular setting out the policy on English medium education’ (Criper & Dodd, 1984, p. 73). Building on the two research findings quoted above one would think that their conclusion would encompass an argument for a switch to a medium of instruction with which the students were familiar, namely Kiswahili. Lwaitama and Rugemalira (1988) claimed that the conclusion announced by Criper and Dodd (1984) was no coincidence. The British government wanted to see the British language strengthened in Tanzania. Rubagumya (1991, p. 76) also commented on the paradox within

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Criper & Dodd’s empirical research. Although English had ceased to be a viable medium of education in Tanzania, the authors’ recommendation for the English Language Teaching Support Project (ELTSP), which the British Government was to fund, was on the condition that English continues to be the medium of instruction. The objective of the ELTSP was to revitalize the English language in Tanzanian secondary schools. The objective of the ELTSP which was introduced in Tanzania through British development aid (1.46 million pounds sterling) in 1987 was to increase the competence of English-language teachers and to provide books for that purpose. Nine specialists from the United Kingdom were brought to Tanzania to implement the project. Through the English Language Teaching Support Project, it was proposed that Tanzanians be invited to write books, or where such books already existed with publishers in manuscript form, they should be submitted to the project for approval, editing, and eventual publication. Walter Bgoya (1992) explained further that a number of Tanzanian publishers thought the Tanzanian publishing industry might benefit from the project, which would buy no less than 20,000 copies of the English supplementary readers if published under the project (Bgoya, 1992, p. 179). They had books in manuscript form in which they had already invested a good deal of time and work but had not been able to publish because of lack of funds. But the Tanzanian publishers were not helped to survive through the project. On the contrary, as it turned out, the agreement stipulated that the first edition of all books published under the project had to be published in the UK and by either Longman, Macmillan, Oxford University Press or Evans. Only a reprint could be published in Tanzania under a co-­publication arrangement between the UK publisher and a local one. But even this was revised, and no book was published in Tanzania. British publishers, it is said, insisted that they should publish the books in the UK, ‘even if the manuscripts originated in Tanzania. English-language teaching is also good business for publishers in the UK’ (Bgoya, 1992, p. 179).

3.2  The Introduction of Private Primary Schools It was important for the great educator1 and President of Tanzania, Julius Nyerere, to create a good primary school for all children. In the policy directive, called Education for Self-Reliance Nyerere (1967) noted that for the education which independent Tanzania wants to build, “the purpose is not to provide an inferior education to that given at present. The purpose is to provide a different education” (Nyerere, 1967, p. 63). He wanted the educational system of Tanzania to emphasize co-operative endeavor, not individual advancement, and to stress concepts of equality and responsibility (p.  52). In my book Whose Education for All? The Recolonization of the African Mind (Brock-Utne, 2008) I show how imported

 Often called “mwalimu” which means teacher.

1

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assessment systems from the West along with the destruction of indigenous publishing and curriculum development have had detrimental effects on the equality oriented policies of Nyerere. In an article on the ‘Worldbankification’ of Norwegian development assistance to educaton, I note that even in a period with a Minister of Development from the Social Democratic Party, money given to the World Bank to assist secondary education in Tanzania was granted on the condition that the money should be used for private schooling only (Brock-Utne, 2007). This was against the official policy of Tanzania at the time as well as against the policy of the Social Democratic Party of Norway. When in 1989 the Minister of Development, Kirsti Kolle Grøndahl, who had earlier been the Minister for Education in Norway, proposed that support to the education sector in Tanzania be expanded, she probably had not foreseen that the $US 8 million that was granted, based on her initiative, would be given to the World Bank to create a new non-governmental organization NGO), which would be disliked by many officials in the Tanzanian Ministry of Education. Nor would she have predicted that this organization would further the privatization of the secondary school sector whose outcome created larger disparities between regions and groups of people in Tanzania. The NGO established by the World Bank was called the National Education Trust Fund (NETF).The NETF was totally financed by Norway, but run according to the neo-liberal policies of the World Bank. A frank consultancy report from two Tanzanian researchers prepared for NORAD (Norwegian Agency for Development Cooperation) on the Fund stated: ‘There is lack of local support for the Fund. The Fund is designed for dependency on donor support. Without donor support the Fund would be non-existent’ (Galabawa & Alphonse, 1993, p. 3). Most of the programme officers I interviewed in the Ministry of Education in the spring of 1992 disliked the NETF because the support was only supposed to go to private secondary schools, thus weakening the government sector (Brock-Utne, 2000, 2008). The officers I talked with in the CCM2 headquarters were especially annoyed at the NETF, claiming that it would lead to greater disparities in the country, disparities between regions, between religions and between the rich and the poor, undermining their agenda which was social justice. In a clear protest against NETF, the CCM office started another fund they named the Nyerere Educational Trust Fund – using the same acronym – NETF. This NETF was to support able students coming from very poor homes to get to secondary school. After Nyerere had stepped down, the way was clear to adopt the Education and Training Policy (MOEC, 1995), which opened up for private primary schools in Tanzania. The policy that had been tried out through the NETF, with support from Norway, now became official government policy. Lene Buchert (1997) reported that many of the government officials as well as bilateral aid agencies and people from the academic community said about the Education and Training policy of 1995: ‘It has been stuffed down the throat of the Government by the IMF and the World

2  The leading political party (at the time the only one) CCM stands for Chama cha Mapinduzi, the Revolutionary party.

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Bank’ (Buchert, 1997, p. 52). The Education and Training Policy did not only open up for private primary schools but also opened up for the use of English as medium of instruction, contrary to the language policy of Nyerere. These private primary schools used English as the language of instruction. The richest parents in Tanzania send their children to very costly private primary schools, where there is plenty of instructional material, DVDs, videos and teachers who have English as their first language. For these children too it would have been better had the language of instruction been the one with which they are most familiar, but in competition with children in less expensive schools they have an advantage. Also middle-class and even some lower-class parents send their children to private, English medium primary schools, but schools where they pay less, there is not enough instructional material and the teachers are not fluent speakers of English, some hardly master the language at all, neither the oral nor the written form (Brock-Utne, 2022) These pupils run into insurmountable problems. Their parents have not understood the difference between learning a foreign language as a subject and having the foreign language as the language of instruction. For these children it would have been a much better alternative to have had all their lessons in Kiswahili, a language they master well, and learnt English as a subject from teachers who are trained in teaching English as a foreign language. Now they are losing out on three fronts: They neither learn subject matter well, nor do they have their vocabulary in Kiswahili increased and nor do not learn good English. The private schools have mushroomed since the government opened up for them. Parents send their children to private schools not so much because of the fact that the language of instruction is English, but more often because of the fact that these schools are better resourced. The pupils there have textbooks, there are fewer pupils in class, the teachers get their skills up-­ dated through in-service courses, are better paid and are not so often absent.

3.3  Strengthening of a Government Primary School In the second phase – the last 5 years – of the LOITASA3 project the Tanzanian group decided to strengthen a government Kiswahili speaking primary school with textbooks for all the pupils in grade 6 and 7 and give the teachers in-service teacher training through two up-dating seminars. We gave this government school the fictitious name ‘Mweshipandeka’. These two small interventions were enough to make the pupils in Mweshipandeka get better grades and be happier at school than the pupils in the English speaking private primary school with the highest school fees in the district. The teachers at Mweshipandeka were convinced that the better scores 3  The LOITASA (the Language of instruction in Tanzania and South Africa) was a ten year long research project (2001–2012) funded by Norway. It was a cooperation between the University of Dar es Salaam, School of Education, the University of the Western Cape, Faculty of Education and the University of Oslo, Department of Education. The project produced ten books. Twelve doctoral and thirty three master degrees were taken under the project.

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their pupils got had to do not only with the fact that they were provided with textbooks but also with the fact that they understood what the teacher was saying. They were taught in a familiar language (Bakahwemama, 2009). In the village where the experiment took place we heard several people say to each other. ‘Have you heard that Mweshipandeka had become English medium?’ The school had not become English medium at all. The teachers had continued teaching in Kiswahili, but the village people thought that the fact that the school did so well, even better than the fee-paying private schools, meant that the school had switched to using English as the language of instruction. Nothing could be further from the truth.

3.4  Current Status The Tanzanian government released a new education and training policy in 2014 (MoEVT, 2014. With regard to the language of instruction the new policy states that both Kiswahili and English can be used for teaching and learning at all levels of education. The two important paragraphs in the policy are quoted below. The translation into English is made by Brock-Utne and Vuzo (2022). 3.2.19. Lugha ya Taifa ya Kiswahili itatumika kufundishia na kujifunzia katika ngazi zote za elimu na mafunzo na Serikali itaweka utaratibu wa kuwezesha matumizi ya lugha hii kuwa endelevu na yenye ufanisi katika kuwapatia walengwa elimu na mafunzo yenye tija kitaifa na kimataifa. ‘The national language Kiswahili will be used for teaching and learning at all levels of education and training. The government will set up a plan to facilitate the sustainable use of the language that is effective in providing the beneficiaries education and training that is useful in and out of the country.’ 3.2.20. Serikali itaendelea na utaratibu wa kuimarisha matumizi ya lugha ya Kiingereza katika kufundishia na kujifunzia, katika ngazi zote za elimu na mafunzo. ‘The government will continue strengthening the use of English for teaching and learning at all levels of education and training’ (MoEVT, 2014, p. 38).

The policy is ambivalent and unclear in that it does not explain how both English and Kiswahili will be used in education. The two paragraphs that in a way contradict each other illustrate the ambivalence that has been with the language of instruction question in Tanzania since independence. The best thing that can be said about this policy is that now a legal basis has been provided for any government or private secondary school, vocational school or institution of higher learning to have Kiswahili as the language of instruction. This opening up for Kiswahili has, however, not yet led to any change in the policy being used. Currently, the Education and Training policy of 1995 is still the one adhered to. At the moment Kiswahili is the medium of instruction only in government pre primary and primary schools, teacher training colleges and for preparing teachers who will teach at these levels. English is still the medium of instruction in government secondary schools and at higher education levels. English is now even being used as a medium of instruction in selected government primary schools. English is the medium of instruction in private pre-primary and primary schools and in secondary and higher education.

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Private institutions are mostly located in urban areas in the country. The use of Kiswahili beyond primary schooling in Tanzania has not yet started being officially implemented. There is no secondary school in Tanzania that uses Kiswahili for teaching and learning, though this has since 2014 been legally possible. The use of Kiswahili as language of instruction at post primary level does exist in a few tertiary institutions. The Department of Kiswahili at the University of Dar es Salaam, where Kiswahili is taught as a subject, also uses Kiswahili as the language of instruction. The Department has developed an advanced terminology in linguistics in Kiswahili. The Institute of Kiswahili Research at the same university also uses Kiswahili as the language of instruction. There is more and more use of Kiswahili in lecturers at the University of Dar es Salaam through code-switching between English and Kiswahili whereby sometimes the use of Kiswahili is more than that of English. Kiswahili is now the language used to conduct most official meetings at the University of Dar es Salaam and there are now Kiswahili words used to refer to different academic administrative terms at the UDSM; e.g Ndaki for college, Amidi for dean, Rasi for principal of college etc) At an international workshop organized by the TRANSLED4 project held in Bagamoyo in November 2018 speakers had prepared their talks and powerpoints in English since it was expected that the international guests would not be fluent in Kiswahili. As it turned out those guests did not arrive and most of the workshop ran fully in Kiswahili, though the prepared powerpoints were in English. It shows well that Kiswahili is gaining ground as an academic language among university people. But the 2014 Education and Training policy, in regard to language of instruction, has not yet officially started being implemented, despite it reflecting the current trend and practice of language of instruction in the country. Though frequent code-switching takes place in lectures and tutorials the only written language that is allowed in papers, exams and theses is English.

3.5  The Rhetoric of English and Development The growing craze for English all over the world is associated with the rhetoric of English and development, permeating into popular perception of the significance of English, often without any critical scrutiny. Broadly, English is projected as a global language (Graddol, 2000) or a language needed for maintaining a competitive edge in a globalized world. Yet, as Coleman (2011) noted the nexus between globalization, competitiveness and the need for English: Globalisation and competitiveness are associated with a need for English and

4  TRANSLED (Transformation of Language and Education for Development) was a rather unsuccessful project sponsored by NORAD (see Brock-Utne, 2019). The cooperating partners were the State University of Zanzibar (SUZA), Faculty of Education, University of Oslo, Department of Education and the University of Dar es Salaam , School of Education.

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There is actually no logical relationship. The best way for a pupil living in a non-­ English speaking country to learn English is not to have it as a language of instruction, but rather learn it as a subject, as a foreign language from teachers who are good at teaching foreign languages. Many parents are not aware of this fact.

3.6  Legal Protection of the Norwegian Languages The use and survival of the Sami language in Norway has been given legal protection. In section three of the law protecting the rights of the Sami people, as defined in 1987, but put into effect from 24 February 1989 (and further amended in 2008), the right to have the Sami language as the language of instruction is guaranteed. One of our law professors, Professor Ola Mestad, has proposed giving the Norwegian language similar legal protection in our Constitution as France has done for the French language. It seems high time that Norwegian is accorded such legal protection since the language, especially as an academic language, is under threat. The law on Norwegian higher education of May 1995 contained the following paragraph: ‘The language of instruction in Norwegian universities and colleges is normally Norwegian’ (§2.7). The paragraph had come into the law after pressure from the Norwegian Language Council. At one point, the Ministry of Education tried to delete the paragraph, but Parliament reinserted it. In 2002, a new law for Norwegian higher education was proposed. Here it was again suggested to do away with paragraph 2.7. There were protests against the deletion of this paragraph from the University of Tromsø, from the Norwegian Language Council and from some academics. Yet the paragraph was taken out of the new law of August 2005. It was argued that the paragraph had to be taken out because of the current internationalization of universities. Without this important paragraph, we cannot demand from non-Norwegian speaking university professors that they learn the Norwegian language in order to teach and tutor our students in our language and in order not to force the academic staff to hold their meetings in English.

3.7  T  his Development Is Also a Threat to Norwegian as an Academic Language In the summer of 2008, the Norwegian Ministry of Culture and Church presented a white paper to Parliament on Norwegian Language policy. I found the paper disappointing on two counts and wrote an article in the largest Norwegian newspaper, Aftenposten, about this (Brock-Utne, 2008). This article led to a radio debate between the Minister of Culture, Trond Giske from the Social Democratic Party,

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and me on the 21 July 2008. At that time (2008), the Norwegian government – the so-called red-green government – was a coalition consisting of the following three parties: the Social Democrats, the Centre party and the Socialist Left party. These three parties together with the support of the Christian People’s party had Parliament adopt the paragraph: ‘The language of instruction in Norwegian universities and colleges shall as a rule be Norwegian’ as part of the Law of Universities and Colleges in 1995. But the bourgeois coalition government at the beginning of the new millennium – consisting of the Conservative party, the Liberals and the Christian party saw to it that this paragraph was taken out of the University law of 2005, even though Norwegian is more threatened as an academic language to-day than it was in 1995. One would have expected that the red-green government would argue in their white paper on Norwegian language policy for reinserting this paragraph in the Law of Universities and Colleges. The white paper ‘Mål og meining’5 does mention that the Norwegian Language Council had previously (2006) suggested reinserting this paragraph. However, the white paper argued against the Language Council as the Minister of Culture had done against me in the radio debate, maintaining that deletion of this paragraph was a consequence of the “internationalization of higher education”. But it is exactly the pressure from the internationalization of higher education which requires legal protection of the Norwegian language in places of higher learning. In 2001, the Legal Court of the EU denied Iceland the right to have lower rate of taxation for Icelandic literature than literature written in foreign languages – a practice Iceland had embarked on to protect their own language. Knowing about this, I asked our Minister of Culture whether he was afraid of sanctions from the EU if Norway wanted further promotion of the Norwegian language through legal measures. The Minister chose not to answer that question. The former government proposed a language law to protect the Norwegian language. The law was passed by Parliament in the spring of 2020. The intention of the law as formulated in the first paragraph is to strengthen the Norwegian languages.6 Norway has a multitude of dialects, which are oral, and two official written forms of Norwegian apart from the Saami language. These written forms are compulsory

5  The White paper was called Mål og meining. Ein heilskapleg norsk språkpolitikk (Language and meaning. A holistic Norwegian language policy). 6  The intention of the new Norwegian language law as stated in §1. # The intention of the law is to strengthen Norwegian in order for the language to continue as a fully-fledged and strong language in Norway. The law shall promote equality between the two written forms of Norwegian and seek protection and status of the languages for which the state is responsible. # Public institutions have a special responsibility to use, develop and strengthen Norwegian language. This includes a responsibility to promote the Norwegian language used the least as a written language. # Public institutions have a responsibility to protect and promote Sami languages. # Public institutions have a responsibility to protect and promote the Kven, Romani, Romanes and Norwegian sign language (My translation).

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subjects in all primary and secondary schools. If you in the state administration get a letter in the one form, you are required to answer in that form.7 The Law of Universities and Colleges from 1995 was amended in 2021(with effect from 01.08.2021). In paragraph 1–7 we read: ‘Universities and colleges have a responsibility to maintain and further develop Norwegian as an academic language’ (my translation). This paragraph is rather weak since it does not state that Norwegian is normally the academic language in universities and colleges in Norway. What does it mean to “maintain” and to “further develop” Norwegian as an academic language? When most doctoral courses are given in English and almost all doctoral theses are written in English, how is Norwegian then being further developed as an academic language? Languages grow through use, concepts are being developed when they are used at the highest academic level.

3.8  Privatization and Language of Instruction in Norway After the change to a blue/blue government in 2013, the issue of private schools resurfaced. A few months after its instatement, a temporary amendment to the Private Schools Act was suggested. This would allow the Ministry to approve private schools that did not fulfil the criteria in the present law. The provisional amendment, which was approved by Parliament in June 2014, indicates the urgency with which the blue-blue government sought to open up for more private schooling. A more liberal private education law was adopted by Parliament during spring 2016. The greatest change between this law and the previous ones is that § 3 in the law on private schools of 1985 with its clear restrictions as to what type of schools would be accepted as eligible for state support was deleted. Now any private school could be eligible for state support, not only those that built on another pedagogical idea (like Montessori or Waldorf schools) or more religious schools. An incident connected with the choice of school for the Norwegian princess Ingrid Alexandra illustrates the strong position of the public community school, the egalitarian values among the general public and the scepticism towards private schools in Norway. In June 2014, it became known that crown-prince Håkon and crown-princess Mette-Marit had decided to send their daughter, princess Ingrid Alexandra (then ten) to Oslo International School (OIS), an extremely expensive international school catering for the children of diplomats and for the richest capitalist families in Norway. The current fee for attending the school is 250 00 8NOK (£23 311) per year. This choice has several disadvantages for the princess herself and for the perception of the royal family as part of the general public. The 7  The one form, in Norwegian called ‘bokmål’, is most used in the cities and has developed from Danish. In the 400 years, Norway was occupied by Denmark; Danish was the official written language in Norway. After our independence from Denmark in 1814, a new written Norwegian was developed based on the rural oral dialects. 8  The yearly tuition fee is: 212 500 NOK (£18,327), the registration fee: 15 000 NOK (£1,278) and the facility fee 11 500 NOK (£980) per term.

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p­ edagogical choice of the royal family has not been subject to much debate. But the choice made by the crown-prince and his wife has been debated from a political view-point. It has been looked upon as a threat to the monarchy. It marks a break with the earlier schooling of the royal family. Both the king and the crown-prince went to regular public Norwegian schools with Norwegian as the language of instruction. The Norwegian monarchy has been based on assuming that the royal family is part of the people. There is a famous picture of the former King Olav sitting on the tram to Holmenkollen with his skis during the oil crisis paying the conductor for his ticket. This is the way Norway wants to picture the royal family. The language of instruction at OIS is English from the first grade. The choice made by the crown-prince and the crown-princess for the princess is also pedagogically an unwise choice. In his chapter on ‘Language Policy in Education’ the well-known linguist Bernard Spolsky (2017) writes: In spite of the growing evidence-based knowledge about language education, implementation of such obvious principles as teaching in a language the pupils understand continue to be blocked by ignorance and inertia (Spolsky (2017, p. 3).

Of course, Ingrid Alexandra would learn subject matter more easily were it taught her in Norwegian, the language she speaks every day. The choice made for her has probably been made both out of sheer ignorance and by the wish of her parents to have their daughter belong to an international elite and to the Norwegian rich upper-­ class. It has been said that they want her to learn to think in English. In all breaks and in the school-yard, the language of communication at OIS has to be English. But she is supposed to become the Queen of Norway, not of England! She is also likely to learn a version of English which is not the optimal one since 60–70% of the children attending OIS neither have Norwegian nor English as their first language. Fortunately, her parents had her attend a Norwegian public school the last couple of years of her lower secondary school and she has now started in a regular Norwegian school for her upper secondary education.

3.9  A  n Unfounded Experiment in a Norwegian Public Primary School For the first time in Norway, a public primary school offers the same type of curriculum using English as the language of learning as the private international schools. The difference is that this offer is free, which means that it is not only available for rich parents. But it is likely to have detrimental effects for the 80 pupils participating in this unfounded experiment. The experiment using English as the language of instruction from the first grade in primary school and in all subjects started at Manglerud School in Oslo in 2016. The project was accepted by the Directorate of Education for a 4-year period. It has recently been prolonged for another 2 year period – to 2022. The municipal county of Oslo argued that it was important that the offer would be available for more students and had to be free. The Language Council

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was worried and said it was unacceptable that a public school transfers the teaching of Norwegian to the home. The Director of the Language Council Åse Wetås (2016) in the newspaper Aftenposten notes that the Councilor for Education, Tone Tellevik Dahl, in the municipality of Oslo revealed an astonishing lack of knowledge about the importance of building a firm foundation in the Norwegian language from an early start. The Councilor, however, praised the project and claimed that it would give the pupils easier access to the global labour market. Dahl makes the same mistake as many parents I have met in Africa, not knowing the difference between learning a language as a subject and having that language as the language of instruction. In the latter case, the language becomes a barrier to learning. The Director of the Language Council Åse Wetås (2016) tried to tell Dahl that small children, who are going to live in Norway, first and foremost need competence in the Norwegian language. They need to develop their vocabulary both in oral and written Norwegian. Thomas and Breidlid (2015) argue that insufficient attention has been paid to the impact of the proliferation of English on minority educational attainment and what this portends for their future. They mention figures for 2013 from the Municipality of Oslo indicating that 54 of Oslo’s 125 primary and lower secondary schools (compulsory 10-year schooling) that year had a majority of students from minority/ immigrant backgrounds (mainly from the Global South). Sixteen of these schools have over 80% students from minority/immigrant backgrounds. These children need instruction in both their own mother tongues and also to become fluent speakers of Norwegian. The use of English as the language of instruction is not likely to benefit these children and their life in Norway. At Manglerud School, more than 25% (in 2012) of the pupils have a minority/immigrant background. In February 2015, the Ministry of Education gave Hordaland County permission to start experiments with teaching in English in social science, natural science and geography at Nordahl Grieg Secondary School in Bergen. And at Knarvik Secondary School in the municipality Lindås, one of the largest secondary schools in Hordaland County, was given permission by the Ministry of Education to use English as the language of instruction in the teaching of history.

3.10  Anglification of Norwegian Higher Education The privatization of Norwegian education has not witnessed substantial growth, even under the neo-liberal policy of the blue government. The increase in the use of the English language both as the language of instruction in higher education and even more so in academic publishing has, however, been so rapid that this growth now is a real threat to the survival of the Norwegian language as an academic language. These changes have occurred rather rapidly within the last couple of decades. They have occurred under each and every government that has held office and have occurred in all the Nordic countries, in fact all over most of Europe, with the exception of France. Thomas and Breidlid (2015, p. 354) quote the former British Prime

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Minister Gordon Brown from an article he published in the Wall Street Journal in 2008 where he argued for the indispensable role of English in defining the ‘special’ Anglo-American relationship: So, finally, I propose that together Britain and America strive to make the international language, that happens to be our own, far more freely available across the world. I am today asking the British Council to develop a new initiative with private-sector and NGO partners in America, to offer anyone in any part of the world help to learn English (Wall Street Journal, 2008).

His wish was already promoted through the Bologna Declaration. The intention of the European Union with its Bologna Declaration9 was to streamline educational standards in Europe. The streamlining also had the consequence of strengthening English as the language of instruction. According to Luc Soete, the Rector of Maastricht University: National languages were perceived as a hindrance for student mobility akin to customs barriers, so the creation of an open market in English is another way for them to sell their educational products (cited by Thomas & Breidlid, 2015, pp. 350–351).

Some years back, I was involved in organizing a European Master’s Degree Programme involving three universities, one in Belgium (Leuven, where the languages of instruction are Flemish and French), one in Finland (Oulu, where the language of instruction is Finnish) and one at the University of Oslo (where the language of instruction is Norwegian). The language of instruction of the whole Master’s Program was to be English, whatever university the students visited. When I taught at the University of Dar Es Salaam (1988–1992), many of my students said they wanted to come to Norway and continue their Ph.D. studies at my university. I had to tell them that if they wanted to do so, they had to learn Norwegian. At that time we did not have any Ph.D. courses in English. Neither did we have any such master courses. But this has changed as witnessed in Table 3.1. Schwach and Elken (2018, p. 20) state that since the percentage of foreign students at Norwegian universities and colleges is only 10%, there are many native Norwegians taking courses taught in English. Back in 1997, I took the initiative of organizing an M.A. in Comparative and International Education at the Institute for Educational Research at the University of Oslo. The course started in 1998 and I was in charge of it for 10 years. It was intended to be mainly for our students from Table 3.1  Studies in English at all Norwegian universities and colleges Year Number of studies, all places of study Percentage of studies, all places of study

2007 2379 8.9

2012 4543 15.7

2016 5798 19.6

Source: Schwach and Elken (2018, p. 61)

9  The Bologna declaration (in full, Joint Declaration of the European Ministers of Education convened in Bologna on 19 June 1999) is the main guiding document of the Bologna process.

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Africa, Asia and Latin-America but some few Norwegian students also enrolled. I noticed that the Norwegian students actually commanded written English better than, e.g., the Tanzanian students. And for the Norwegian students, it was the first time they were exposed to the use of English as the language of instruction while the Tanzanian students had used that language for at least 9 years.

3.11  Academic Publishing – In Whose Language? The Swedish language activist Per Åke Lindblom (2009) noted that during the period 1960 to 1979 90% of Ph.D. theses delivered at the University of Copenhagen were written in Danish and 10% in English. From 2000 to 2004, 100% were written in English! Schwach and Elken (2018, p.  51) noted that in 2017, 90.8% of the Ph.D. theses examined at Norwegian universities were written in English. Only 8.5% were written in Norwegian. Of these, 7.9% were written in the urban variety of Norwegian, bokmål and only 0.6% in the more rural variety of Norwegian, nynorsk. At the level of Masters’ theses, there has been a clear increase in the number of theses delivered in English over the last 20 years; illustrated in Tables 3.2 and 3.3. We also see that the number of theses written in German and French has been on the decline.

Table 3.2  Number of registered «hoved»/master’s dissertations at Norwegian universities and colleges according to the language in which they were written in 1986, 2006 and 2016 Year Norwegian English German French

1986 1081 115 13 3

2006 4403 2238 27 27

2016 3449 2675 11 2

Source: Schwach and Elken (2018, p. 61)

Table 3.3  Registered ‘hoved’/ master’s dissertations at Norwegian universities and colleges according to the language in which they were written in 1986, 2006 and 2016 Year Norwegian English German French

1986 89.19 9.49 1.07 0.25

Source: Schwach and Elken (2018, p. 61)

2006 65.77 33.43 0.40 0.40

2016 56.20 43.59 0.18 0.03

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3.12  Higher Rewards for Academic Publications in English In 1991, Norwegian state institutions were given the possibility of introducing a ‘performance salary’ (merit payment) as a part of local salary negotiations. Before that all associate professors had the same salary and so did all professors. The whole reward system fits well with the commercialization of higher education, which has also hit European universities (Brock-Utne, 2001, 2002). In 2004, the Norwegian Association of Higher Education Institutions published a dossier called: Vekt på forskning10 (UHR, 2004). This publication institutionalized a reward system dividing journals and publishing companies into three levels, level 0 (no payment was given to the institution or researcher  – most publishing companies in developing countries belong to this category – even if they publish in English), level 1 (reward given), level 2 (higher reward given – normally three times higher than at level 1). On the internet one can find a list of 486 ranked publishing companies. Of these 55 companies are ranked at level 2, while 431 companies are ranked at level 1. No Norwegian publishing company is ranked at level 2, not even the University Publishing Company or other academic publishers like Fagbokforlaget, or Gyldendal Akademisk, Cappelen Akademisk or Tapir Akademisk. More than 80% of the publishing companies ranked at level 2 are based in the United States.11 Points are given for single-authored books produced by a publishing company ranked at level 1 (five points), and single-authored books from a publishing company ranked at level 2 (eight points). Chapters in books published by a publishing company ranked at level 1 are rewarded with 0.7 points, at level 2 with 1 point. In 2006, each point represented a reward of 40,000 NOK (US$6,500) which goes to the university centrally. Normally, the central university retains 25% and distributes the rest to the faculties in which the academic contributors are employed. The faculty keeps some of the money and distributes the rest to the different departments. The departments decide how much of the income received will go to the academic staff member who has written the article/chapter/book and how much will be part of a research fund to which those holding tenured posts at the university can apply. At my institute, the academic staff member who has generated the points will get about a tenth of the sum for her or his own research purposes. This applies both to tenured and non-tenured staff such as emeriti professors. When it comes to academic journals, a list of 1758 ranked journals is given, among which a tenth are ranked at level 2 and the rest at level 1. The list is collated by a group of high ranking academics. Only three of the many peer-reviewed academic journals published in Norwegian have been ranked at level two – Tidsskrift for Rettsvitenskap (Journal of Law),12 Edda (A name from the Norse Saga) and  In English:Emphasis on Research.  See below for the website dealing with the ranking of publications: https://dbh.nsd.uib.no/ publiseringskanaler 12  All laws in Norway are written in Norwegian. Tidsskrift for Rettsvitenskap has since its first issue in 1888 been a channel for Nordic academic law studies and builds links between lawyers in the 10 11

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Maal og Minne (Oral and written literature).13 The peer-reviewed academic journal Historisk Tidsskrift (Journal of History), mostly published in Norwegian, is the longest running academic journal in Norway. It has since its first issue in 1871 been the central channel for Norwegian historians, read by researchers and students as well as teachers of history. Historisk tidsskrift is the journal of the Norwegian society of historians, a society for those who have had at least two full terms of study of history at a Norwegian university and are engaged in historical research or dissemination of such research. For some years, the journal was recognized as a level 2 journal. The editorial board fought hard to maintain this recognition. But they had to give in and in 2018; the journal was downgraded to level 1. In the field of Educational Research no academic journal, where any of the articles is written in another language than English, has been ranked at level 2. Some years back I felt that there was an acute need for a textbook in comparative and multicultural education written in Norwegian and took the initiative to edit such a book which appeared in 2006 (Brock-Utne & Bøyesen, 2006). With two exceptions, all the authors were native Norwegians, but they all did most of their academic writing in English. Most authors, including myself (Brock-Utne, 2006), had problems finding academic terms in Norwegian describing phenomena they normally wrote about in English. Not long after the book was published, my institute decided that the course in comparative and international education at the Bachelor level, which had been taught in Norwegian, should henceforth be taught in English. That may be one of the reasons why the book has not achieved the sales figures we had hoped for. The Norwegian case shows how a smaller European language like Norwegian is threatened as an academic language. When Norwegian academics are discouraged from publishing in Norwegian, it means that academic Norwegian will deteriorate and its semantics will not develop further. We shall reach a situation similar to that which African academics are in when they have difficulties discussing academic matters in African languages because the appropriate academic concepts have not been developed in them. All languages develop through use and they also fail to develop or stagnate through disuse. The Norwegian case also shows the threat to Norwegian publishing houses. The language policy of Norwegian universities and colleges is in Norway, as in developing countries, a political question which has to do with distribution of power between social classes, between the elites and the masses. The new red-green14 government in Norway, which was voted in in the fall

Nordic countries. This is the academic journal where interpretations of laws and discussions around them take place. The journal also publishes reviews of current books. 13  Edda was the name of a book of stories and tales written by Snorre Sturlason around 1200. The journal Edda was founded in 1914 as a Nordic journal for the academic study of Nordic literature. The journal is one of the leading journals within studies of literature written in the Nordic languages. 14  The government is made up of two parties, Arbeiderpartiet (the Social Democrats) and Senterpartiet (literally the Centre party. The party is strongest in the rural areas and wants to decentralize institutions.

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of 2021, has already announced that it wants to strengthen Norwegian as an academic language. The new Minister of Research and Higher Education, Ola Borten Moe, from the Centre party has announced that he is not going to let the staff at the universities decide unilaterally on the language of teaching and publishing. He even criticized the policy of rating publishing companies and journals on level 1 or 2. In an interview in the radical newspaper Klassekampen on 13th November 2021 Ola Borten Moe expressed the wish to move the power over higher education in Norway away from the academics in the universities and back to Parliament. The question of who is to decide about the language in higher education in Norway is a political question.

3.13  Conclusion In this chapter, as demonstrated above, a critical analysis was provided to explain how globalization is reshaping education when it comes to the issue of language of instruction. The chapter shows the ways the social democratic and equality oriented educational policies of Nyerere had to give way to policies of powerful neo-liberal institutions like the World Bank with its capitalist ideology and pressure for privatization. Finally, the chapter compares the situation in Tanzania with the one found in an industrialized country in northern Europe, Norway. In the Nordic countries English has become the most important language for academic research and publishing, affecting the status of the Nordic languages.

References Bakahwemama, J.  B. (2009). What is the difference in achievement of learners in selected Kiswahili and English primary schools in Tanzania? (MA thesis). Institute for Educational Research, University of Oslo. Bgoya, W. (1992). The challenge of publishing in Tanzania. In P. Altbach (Ed.), Publishing and development in the third world (pp. 169–190). Hans Zell Publishers. Brock-Utne, B. (2000, 2008). Whose education for all? Recolonization of the African mind. Falmer Press. Reprinted in 2008 in Seoul: Homi Publishers. Brock-Utne, B. (2001). The growth of English for academic communication in the Nordic countries. International Review of Education, 47(3–4), 221–233. Brock-Utne, B. (2002). The global forces affecting the education sector today – The universities in Europe. An example. Higher Education in Europe, 37(3), 283–300. Brock-Utne, B. (2006). Innviklet utdanning for utvikling [Difficult education for development]. In B.  Brock-Utne & L.  Bøyesen (Eds.), Å Greie Seg i Utdanningssystemet i Nord og Sør: Innføring i Flerkulturell og Komparativ Pedagogikk, Utdanning og Utvikling [How to survive in the educational system in the North and in the South: Introduction to multicultural and comparative education, education and development] (pp. 221–236). Fagbokforlaget. Brock-Utne, B. (2007). Worldbankification of Norwegian development assistance to education. Comparative Education, 43(3), 433–449.

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Brock-Utne, B. (2008, July 21). En sprikende språkmelding [An ambivalent white paper on language policy]. Aftenposten. Brock-Utne, B. (2019). Models of cooperation between a university in Norway and two universities in Africa: An autoethnographic report. In T.  Halvorsen, K.  Skare Orgeret, & R.  Krøvel (Eds.), Sharing knowledge, transforming societies: The NORHED Programme 2015-2018 (pp. 379–403). African Minds. Brock-Utne, B. (2022). The world wide language issue in education. In M. S. Archer, U.-D. Bæck, & T. Skinningsrud (Eds.), The morphogenesis of the Norwegian educational system: Emergence and development. Routledge. Brock-Utne, B. & Bøyesen, L. (Eds.). (2006). Å Greie Seg i Utdanningssystemet i Nord OG Sør: Innføring i Flerkulturell OG Komparativ Pedagogikk, Utdanning og Utvikling [How to survive in the educational system in the north and in the south: Introduction to multicultural and comparative education, education and development]. Fagbokforlaget. Brock-Utne, B., & Vuzo, M. (2022). Chapter 15: The ambivalent language in education policy of Tanzania. In R. Kaschula & M. Kretzer (Eds.), The Southern African Development Community (SADC): A comparative perspective on language policy and education. Brill. Buchert, L. (1997). Education policy formulation in Tanzania: Coordination between the government and international aid agencies. International Institute for Educational Planning. Coleman, H. (2011). Allocating resources for English: The case of Indonesia’s English medium International Standard Schools. In H. Coleman (Ed.), Dreams and realities: Developing countries and the English language (pp. 89–113). British Council. Criper, C., & Dodd, W. (1984). Report on the teaching of English and its use as a medium of instruction. ODA & British Council. Galabawa, J. C. J., & Alphonse, N. R. (1993). The National education trust fund: Implementation, initial take off, constraints and sustainability. A consultancy report prepared for NORAD. NORAD. Graddol, D. (2000). The future of English. British Council. Lindblom, P.-Å. (2009). Are the Nordic languages threatened as academic languages? In B. Brock-­ Utne & G.  Garbo (Eds.), Language is power. The Implications of language for peace and development. African Books Collective/Mkuki na Nyota. Lwaitama, A. F., & Rugemalira, J. M. (1988, September 29). The English language support project. Seminar Paper presented to the Department of Education and the Department of Foreign Languages and Linguistics. University of Dar es Salaam. MOEC (Ministry of Education and Culture). (1995). The Tanzanian education and training policy. MoEVT. (2014). Sera ya Elimu na Mafunzo. Ministry of Education and Vocational Training. Nyerere, J. (1967). Education for self reliance. Policy booklet published in March 1967. Reprinted in J. Nyerere (1968).Ujamaa: Essays on socialism (pp. 44–76). Oxford University Press. Rubagumya, C. (1991). Language promotion for educational purposes: The example of Tanzania. International Review of Education, 37(1), 67–87. Schwach, V., & Elken, M. (2018). Å snakke fag på et språk andre forstår. Norsk fagspråk i høyere utdanning og arbeidsliv [To speak on academic matters in a language normal people understand. Norwegian language in higher education and work]. RAPPORT 20/2018. NIFU-STEP. Senkoro, F. E. M. K. (2005). Language of instruction: The forgotten factor in education standards in Africa? University of Dar es Salaam. Spolsky, B. (2017). Language policy in education, practices, ideology and management. In T. McCarty & S. May (Eds.), Language policy and political issues in education (pp. 3–17). Springer. Thomas, P., & Breidlid, A. (2015). In the shadow of ‘anglobalization’, national tests in English in Norway and the making of a new English underclass. Journal of Multicultural Discourses, 10(3), 349–368. https://doi.org/10.1080/17447143.2015.1041963 UHR. (2004). Universitets og Høgskolerådet – The Norwegian Association of Higher Education Institutions. Vekt på forskning. Nytt system for dokumentasjon av vitenskapelig publisering [Emphasis on research. A new system for documentation of scientific publishing].

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Wall Street Journal. (2008). Worst crisis since ‘30s, with no end yet insight. Retrieved from ­https:// www.w.j.com/articles/SB122169431617549947 Wetås, Å. (2016, August 23). Engelskspråklig skoleklasse presenteres om et solskinnsprosjekt. Språkrådet er oppriktig bekymret [An experiment using English as the language of instruction in a Norwegian primary school is presented as a good thing. The language council voices its grave concern]. Aftenposten. Yahya-Othman, S., & Batibo, H. (1996). The swinging pendulum: English in Tanzania 1940-1990. In J. Fishman, A. Conrad, & A. Rubal-Lopez (Eds.), Post-imperial English. Status change in former British and American colonies, 1940–1990 (pp. 373–396). Mouton de Gruyter. Birgit Brock-Utne Professor of Education and Development, University of Oslo, Norway. She is the Director of the M.Phil study in Comparative and International Education at the Institute for Educational Research, University of Oslo. From 1987 until 1992 she was a Professor at the University of Dar es Salaam, Tanzania. She has written 10 books and more than 100 book chapters, and journal articles. Currently, she directs three research projects dealing with the language of instruction in Tanzania and South Africa and the research network NETREED.  

Chapter 4

Social Justice and Human Rights in the 22nd Century – Equity Principle José Noronha Rodrigues and Dora Cristina Ribeiro Cabete

Abstract  This chapter examines major public policies on social justice and respect for human rights. It is argued that there will only truly be social justice when these public policies are based on equity, dignity and respect for the most basic human rights. Social justice, social security, dignity, equality, equity and human rights serve to maintain and strengthen social cohesion among people and the co-­ responsibility of all for any violations of the most basic human rights. Keywords  Democracy · Equality · Equity · Human rights · Social cohesion · Social inequalities · Social justice · Social stratificaion

4.1  Introduction Public policies should be developed to promote social justice and safeguard respect for human rights. From this perspective, it is fundamental that international legal instruments, both hard law and soft law, combine the principle of equality with the principle of equity in order to minimize social inequalities resulting from the position each person occupies in the social structure of a given society. Undoubtedly, we are all equal in dignity before the law, but different in social stratification for a variety of reasons (economic, cultural, educational, among others), so a good public policy of social justice is the fundamental foundation for the full respect of human rights. In fact, International Organizations (United Nations, International Labor Organization, Council of Europe, and European Union) have legislated hard in order to implement equal social justice in several social and professional areas and sectors. However, we argue that there will only truly be social justice when these public policies are based on equity, dignity and respect for the most basic human rights. It is not enough to have good international and national legislation to J. N. Rodrigues (*) · D. C. R. Cabete Faculty of Economics and Management, University of the Azores, Ponta Delgada, Portugal e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_4

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safeguard the most elementary human rights and social justice, it is fundamental that these legislations of hard law or soft law, are based on equality and equity, on dignity and the co-responsibility of all for the violations of the most elementary human rights.

4.2  S  ocial Justice and the Universal Dignity of Human Beings The first question we should all ask is, will there be minimum requirements for living with dignity? Are there minimum requirements for poverty? Or do the minimum requirements of poverty intersect when human dignity is affected? But when is human dignity affected? How can human dignity be impacted? These are some questions we must always ask when we want to address the issue of social justice and the universal dignity of man. Undoubtedly, human dignity is affected by poverty. However, poverty is a decisive factor in determining whether human dignity has been violated. As Carlos V. Estevão argues, “human dignity requires the non-humiliation and non-­degradation of others, but what constitutes degradation or humiliation varies from society to society and cannot be legislated universally”. (Estevão, 2007, p. 54). We often read in the written media that “more than 1.6 million Portuguese live below the poverty line, that is, with less than 540 euros per month, a reality that affects large families, but also those who live alone, the elderly, children, students and workers” (Diário de Notícias, 2021). But are these Portuguese really poor? Yes, unquestionably, the Portuguese who live on less than 540 euros per month live on the poverty line, so they are poor, especially if we compare them to the Germans “[according to] the [German] Federal Office of Statistics, the poverty threshold is 1,074 euros for a one-­ person household ... [and] anyone who receives less than that is considered at risk of poverty.” (Noticias, 2021). Thus, it is indeed a reality that the Portuguese are poor compared to the Germans but, they are very rich compared to some countries in Africa “[a] report revealed by the World Bank reports that almost 800 million people lived, in 2013, on less than 1.70 euros a day.”(Jornal Económico, 2016) and/or India “[despite] beautiful palaces, 70% of India’s population lives in poverty” (Globo Repórter, 2018). In fact, “[t]he most populous countries in South Asia (India and Bangladesh) and sub-­ Saharan Africa (Nigeria, Ethiopia, and the Democratic Republic of Congo) have the largest number of people in extreme poverty. India, with over 170 million poor people in 2015, has the largest number of poor people and accounts for almost a quarter of the world’s poverty. In the South Asian region, 4 out of 5 of the extreme poor live in India. With a poverty rate of 13.4 percent, India’s huge population of 1.3 billion results in a high absolute number of poor people.” (The World Bank, 2018). Therefore, the notion of poverty varies in time and space, but it is undeniably timeless in its modus operandi because it affects human dignity and human rights.

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Imperatively, “it is human rights that end up civilizing democracy itself and the State”. (Estevão, 2007, p. 46). Thus, we live in a global, unequal and imperfect world whose existential minimum content is essentially based on social fundamental rights. As a matter of fact, as Thadeu Weber (2013) states: [the] guarantee of a dignified existence goes beyond the notion of physical survival, but implies a development of the personality as a whole. To live is not only to survive (Weber, 2013, p. 207).

Mandatorily, when we talk about the violation of human dignity, we cannot analyze it from a particular, individual and/or state perspective. We have to analyze from a global perspective because human dignity is universal, regardless of the state of origin. From this perspective, Martha C. Nussbaum (2013) lists ten capabilities that are responsible for ensuring a minimum of human dignity: 1. “Life: Being able to live to the end of human life of normal duration, without dying prematurely; 2. Body health: Being able to have good health, including reproductive health; being adequately nourished; being able to have adequate shelter; 3. Body integrity: Being able to move freely from one place to another; to be safe from violent assault, including sexual assault; to have opportunities for sexual satisfaction and choice for reproductive purposes; 4. Feeling, imagination and thinking: To be able to use the senses, to imagine, to think, and to reason - and to do these things in a humane way, a way informed and cultivated by an adequate education; to be able to use imagination and thinking in connection with experience, and producing expressive works and authentic events; to be able to use imagination with guarantees of freedom of expression with respect to political and artistic discourse and freedom of religious exercise, and to be able to have pleasurable experiences and avoid non-­ beneficial pain; 5. Emotions: Being able to establish attachments with things and people; being able to love those who love and care for us, being able to suffer their absence, to experience longing, gratitude, and justified anger, thus not having an emotional scarred or imprisoned by fear or anxiety; 6. Practical reason: Being able to form a conception of the good and engage in critical reflection about the planning of one’s own life; 7. Affiliation: Being able to live with and in relation to others, recognizing and showing concern for other human beings and engaging in various forms of social interaction, being able to imagine another’s situation and have compassion for that situation, having the capacity to exercise justice and friendship; being able to be treated as a worthy being whose worth is equal to that of others; 8. Other species: Being able to live with concern for animals, plants, and the world of nature; 9. Fun: Being able to laugh, play, and enjoy recreational activities; 10. Control over the environment: (A) political: being able to participate in the political choices that effectively govern one’s life, having the rights of political

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participation, freedom of speech, and freedom of association; (B) material: being able to hold property (both immovable and movable), having the right to seek employment on an equal basis with others” (Nussbaum, 2013, p. 94). This list of Nussbaum’s principles of ensuring a minimum of human dignity is a way to address human rights themselves, seen as minimum requirements for living in dignity. In fact, as Anna Paula Bagetti Zeifert (2019) argues that the ‘minimum of dignity and the most fundamental human needs, should be provided: [guaranteeing] the minimum of dignity and the most fundamental human needs is the task of the theory of justice presented by the philosopher [Nussbaum]. Public policies, which seek to foster a more just and inclusive social development, will be the fundamental point for such issues to become effective. In the construction of public policies, it is necessary to establish strategies that involve all citizens and segments of society in a joint effort to bring about social justice (Zeifert, 2019, p. 20).

Thus, social justice plays a crucial role in promoting fundamental needs and, concomitantly, in building a more equal and equitable society. Thus, it is up to the international community and civil society, as “a political space in which voluntary associations explicitly seek to formulate the rules (in terms of specific policies, broader norms, and deeper social structures) for governing one or another aspect of social life” (Scholte, 2001), develop fundamental public policies to promote human and social dignity in order to create a more inclusive, welcoming, and humane society. In fact, as Oscar Vilhena Vieira and A. Scott Dupree reiterated, it is up to civil society to create and recreate the conditions to validate and realize human rights. We emphasize five aspects of this action: (1) providing a sphere of action for all social groups; (2) making injustice public; (3) protecting private space from the incursion of the state and the market; (4) intervening and interacting directly in legal and political systems; (5) promoting social innovation (Vieira & Dupree, 2004, p.60).

4.3  S  ocial Justice and Human Rights: Principle of Equality and Fairness Social justice aims to minimize social inequalities resulting from the position each person occupies in the social structure of a given society. And, whether we like it or not, the position each person occupies in the social structure causes social inequality, conferring upon them some powers, prestige, and/or privileges, and, concomitantly, upon others a subordinate position, of submission and/or absence of privileges. And, this happens because men are not all equal. In fact, they may even be so before the law, but before society, the social structure or the social stratification where they are inserted, they are not. And they are not, for a wide range of reasons, namely, because of their ancestry, sex, race, language, territory of origin, religion, political or ideological convictions, education, economic situation, social condition, or sexual orientation. In fact, there are many factors that individually or cumulatively cause social inequality. In fact, today, one of the most

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pressing issues for those who promote human rights is social and economic inequality. Inequality today is overwhelming and growing. As the United Nations Human Development Report points out, lack of resources also means lack of adequate education, health conditions, housing, water, and sanitary infrastructure. The absence of these basic conditions for the majority creates a situation of disparity and inferiority between those who have access to them and those who do not. Such circumstances occur in both the most influential and the least influential nations. Social and economic inequality trigger moral exclusion. They reduce the perception of equality among human beings, destroying the conditions of respect for human rights (Vieira & Dupree, 2004, p.55). Social inequality between people is evident, notorious and sociologically proven over time, regardless of space. That is why we should not anchor our legal and sociological arguments only in the principle of equality among men. Indeed, if we want to be fair and impartial in order to implement true social justice, we must necessarily anchor our arguments in the respect for human rights and, in particular, adopt policies that foster and implement respect for the principle of equity. Social justice cannot be egalitarian but must be based on equity. In fact, it is common to use these two concepts as synonyms, but, in fact, these two concepts are completely different. This is why it is crucial to distinguish their essence from their meaning. Thus, equality is treating all people equally and ensuring that all individuals have access to the same opportunities. Indeed, Article 1 of the Universal Declaration of Human Rights reiterates that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood” (Universal Declaration of Human Rights, 1948a, b) and, in the same vein, Article 7 of the same Declaration states that “[everyone] is equal before the law and is entitled without distinction to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”. Also, article 13.1 and 2 of the Constitution of the Portuguese Republic, addresses the principle of equality “[all] citizens have the same social dignity and are equal before the law. No one shall be privileged, favoured, prejudiced, deprived of any right or exempted from any duty on the basis of ancestry, sex, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social condition or sexual orientation” (Constituição da República Portuguesa, 2005). On the other hand, equity recognizes that we are not all equal, that we do not all start from the same place, and that this imbalance needs to be adjusted. The notion of equity is therefore related to giving people what they need, so that everyone really has access to the same opportunities. This means giving more to those who require it most, in a way that is proportional and appropriate to their circumstances. Although both aim to promote justice, it is possible to see that equity and equality have different concepts and parameters, and this difference needs to be emphasized. While equality seeks to treat everyone the same, regardless of their needs, fairness treats people differently, taking into account what they need (Tree, 2021). A good image to understand the distinction between equality and fairness is perhaps this, if we give the same ladder to three people of different heights, they will

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not become the same size: the tallest will remain taller, the middle height one will remain the same, and the shortest one will remain the smallest of the trio. Now, if we have three ladders of different sizes, we can distribute them in such a way that the three people get balanced heights - the largest scale for the shortest person, the middle one for the middle one, and the smallest scale for the tallest. Another example, paradigmatic to understand the difference between these two concepts is, to apply in a classroom the equality principle means to give all students the same level of support; however, since we are all different, it is evident that some need more help than others, and to balance this balance we need equity. Therefore, we have to readapt the principle of equality, because human beings should be equal before the law, but, undoubtedly, they are distinct from each other for a variety of reasons. Therefore, the principle of equity must be enshrined in international legal instruments of universal and/or regional character, whether they are hard law and/or soft law instruments. In fact, it is fundamental that the International Community and the States definitely realize that they cannot treat all people equally; otherwise, they will foster and increase more and more discrimination among human beings and, concomitantly, social injustice. In fact, the fundamental difference between equity and equality lies in the fact that the former recognizes diversity, considering the different socioeconomic and cultural contexts of each, and allocates the necessary resources so that everyone can achieve the same results. The perpetuation of the equality principle in international and national legal instruments allows, with rare exceptions, driven essentially by the contribution of education, that social inequality between people is maintained and proliferates. That is why we continue to read repeatedly in the written media, “1% of the population got 80% of the world’s wealth” (Observador, 2018).

4.4  Global Co-Responsibility for Human Rights Violations Human rights discourse must be practical, accountable, and accessible to a plurality of perspectives. It must engage despised and invisible groups as proponents of the changes they consider necessary for justice. Obviously, civil society is the source of conflicts among cries for justice, and one aspect of the dialogue is the negotiation among various rights and the distribution of resources to be invested in solutions (Vieira & Dupree, 2004, p. 60). The international community must look to man and to respect for human dignity, inasmuch as, man is mankind’s main problem. Above all, respect for human rights is the responsibility of the individual, even the greatest abuses of human rights are often, though not always, committed through the fault of an individual. In fact, as Valdemar Sguissardi (2021) said, “[t]he Human Being is the measure of all things. The size of the human being measures the vastness of the universe, just as the Earth began to be measured by the span and the fathom” (Sguissardi, 2021, p. 291).

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Consequently, the agency of individuals is extended through access to state, corporate, or informal authority. To separate individuals from the contexts in which they are generated, nurtured, and thrive is unwise. But clearly, they must have respect for rights. The illusion that the state is the only party responsible for human rights should be shattered once and for all. Authority lies in whatever power an individual or group holds over another, not solely in the power of the state (Vieira & Dupree, 2004, pp. 50–51). In fact, Jane Goodall (2018) mentioned “[the] most intellectual creature ever to walk the earth, is destroying its only home” (Goodall, 2018). In this sense, Ivo Lesbaupin and Mauri Cruz (2019) also have argued that at this crucial moment for humanity, where the limit of the current development model puts the existence of the human race in danger, it is essential to reflect and point to ways that can radically and urgently change the directions of our predatory practices of the environment and the conditions that sustain our life on earth (Lesbaupin & Cruz, 2019, p. 6). Moreover, as Teresa Cunha (2005) argued there was a need to address and overcome economic inequalities: [the] human communities, nations, states and their regional or international, political, economic and social organizations are, in the same way, exposed to the multiple phenomena of a time and space in which the different globalization which are underway exert an enormous attraction and influence. (...) The financial predominance in the economy, the creation of a planetary market, the deterioration of the principle of multilateralism, which had marked international relations in the second half of the twentieth century, the worsening of worldwide inequalities in the access to and distribution of produced and existing wealth, the proliferation of violent conflicts inside and outside the borders of national states, as well as the increase and irreversibility of ecological imbalances, have created new problems and produced new contours in all existing social relations (Cunha, 2005, p. 2).

In this sense, José Noronha Rodrigues (2009), also believed that both safety and attacks againt humans need to be addressed, in order to deliver social hjustice for all: ...the 21st century will be remembered in the History of Humanity as the century of change, of imminent danger, of the “clash of civilizations”, of collective insecurity, of distrust of the “other”, of the injustices committed, of the Iraq War and, mainly, of the tragic terrorist attacks that took place on September 11th 2001, in the United States, on March 11th 2004, in Spain and on July 7th 2005, in London. However, we must not forget all the other attacks on the most basic human rights perpetrated daily around the world. We cannot continue with the “ostrich” policy, of the “protruding navel” and of incriminating the “other”. We have an obligation to stop and reflect, to analyze, to conjecture what is really wrong between the Western and Eastern Worlds, between North and South. Furthermore, we have the duty to realize that the “other” is “us”. (Rodrigues, 2009, pp. 27-28).

The world is in crisis. Not only because of the coronavirus pandemic, but also because economic inequality has grown significantly, climate emergencies threaten humanity, dictatorships, real or disguised, are back, democracy is threatened, the sovereignty of peoples and nations is in danger. There are other major economic, social and political changes. For the first time, a WSF [World Social Forum] is totally virtual, because of the pandemic. At the same time, the owners of the Internet and social media are also owners of lives, owners of power, and owners of the world (Heck, 2021). In other words, the epidemic of insecurity, social injustice, and the

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systematic violation of human rights in all latitudes proliferates throughout the World. What to do, how to build a new World? Is a new World possible? Is there light on the horizon or at the end of the tunnel? Undoubtedly, in a global and increasingly technological world, another world is possible. To do so, it is necessary that human rights truly safeguard man. Attacks on the most basic human rights are global, they do not vary from state to state, and therefore deserve the global attention of international legal instruments, both hard law and soft law. In fact, international legal instruments serve as barometers, since they safeguard minimum rights and impose convergence/harmonization of national legal instruments to these same international instruments. Human rights are rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other condition. The rights apply without discrimination to all human beings they are today considered universal, indivisible, and inalienable - and include the right to life and liberty, freedom of opinion and expression, work, and education, among others. It is evident that there is inequality in human rights depending on the geography and, mainly, on the environment where one is born and lives. This inequality can and must be mitigated through education, so it is essential to safeguard and support the right to education as a universal, global, and inalienable human right. We must also implement social justice, putting an end to child labor, implementing gender equality, where men and women enjoy the same opportunities, income, rights and obligations in all areas, and, to this end, must enjoy the same conditions of access to education, opportunities at work and in their careers, access to health care, and, finally, to power and influence. In fact, we believe that the safeguarding of the most basic human rights is conditioned by some global risks, regardless of whether they are short, medium and/or long term, such as, for example, infectious diseases, livelihood crises, climate change, terrorist attacks, geopolitization of resources, and weapons of mass destruction. This is because all of these risks put the dignity of the human person at stake, regardless of the state of origin and/or the state where these risks or violations occur, so a binding international human rights instrument that projects them globally is essential. But if we are to maintain human dignity, we must fight poverty, advocate for equality and equity, and remove the obstacles that perpetuate human rights violations  - legal, institutional, practical, and mentality obstacles. This can only be pursued by fighting discrimination and building more just and inclusive institutions and societies. In this context, it is crucial to realize that extreme poverty can and should be considered a violation of a human right. Indeed, as Pope Francis stated, “[never] lose sight of the fact that there is no democracy with hunger, no development with poverty, and even less justice with inequality. (...) high levels of poverty are the clearest indicator of the distributive injustice that prevails in the world” (Vatican News, 02/10/2021). Therefore, irreducibly, the nobility of human rights in contemporary times is correlated with social justice. From this perspective, “[i]n light of these questions, justice can be understood as a field of social action in which relations of reciprocity and trust are involved, actualized by the mechanisms of exchange, which imply

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commitments, identities, and values that support the political culture of different social groups. From this point of view, justice to be realized requires the concretization of the principle of social equity that equates men with the law, but does not homogenize and preserves differences. It allows us to situate the actions of groups that defend human rights in a sociopolitical dimension and as a possible space for the contestation of norms, in which new values originating in the demands proposed in social and political conflicts can be incorporated, through which it is possible to evaluate contexts and situations as being just or unjust, validating them or not” (Heller, 1998, p.15). Thus, in a time of immense global economic and social challenges impacting human rights, it has become clear that it is necessary to look at human rights and their violation from a global perspective, of co-responsibility, so that human risks are mitigated globally. Indeed, one of the greatest risks is the stratification of global society between citizens with rights and citizens without rights, varying according to status, ancestry, gender, race, language, territory of origin, religion, political or ideological beliefs, education, economic situation, social status, or sexual orientation. In this context, the fight for a world without excluded people should be the main banner of the twenty-first century. In fact, the promotion of Human Rights, the Rule of Law and Good Governance, together with Inclusive and Sustainable Growth are the two fundamental pillars of the European Union’s Development Policy. To promote human rights and democracy around the world, the European Union uses a wide range of measures, from political dialogue and diplomatic initiatives to financial and technical cooperation and assistance. In addition to providing resources in the context of its bilateral policies with developing countries, the EU has a dedicated financial instrument for the promotion of democracy and human rights worldwide, which in the current Multiannual Financial Framework (2014–2020) has an allocation of more than €1.3 million. Moreover, as stated in Regulation (EU) No. 235/2014 of the European Parliament and of the Council of March 11, 2014, establishing a financing instrument for democracy and human rights worldwide: [article] 2 of the Treaty on European Union (TEU) provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. Those values are common to the Member States in a society in which pluralism, non-­discrimination, tolerance, justice, solidarity and equality between women and men prevail (…) Within the framework of the principles and objectives of the Union’s external action, the promotion of human rights, democracy, the rule of law and good governance, and of inclusive and sustainable growth, constitute two basic pillars of the Union’s development policy. A commitment to respect, promote and protect human rights and democratic principles is an essential element of the Union’s contractual relations with third countries1

What happens is that these principles, these proposals and/or these goals for the promotion of human rights should not be limited to the European Union and/or 1  See point (2), (5) Regulation (EU) No 235/2014 of the European Parliament and of the Council of 11 March 2014, establishing a financing instrument for democracy and human rights worldwide.

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developed countries, but should be globally assimilated by the international community, as well as based on international legal instruments of hard law, in order to achieve a global co-responsibility for the protection and promotion of human rights in the world.

4.5  S  ocial Justice and the Globalization of International Social Security Law One cannot talk about social justice and respect for human rights without necessarily addressing the topic of social security and/or International Social Security Law. To this end, it is fundamental that we focus our analysis on the various international legal instruments adopted within the United Nations, the International Labor Organization (ILO), the Council of Europe and the European Union. Because if we want to have a world without excluded people, but with the inclusion of all, we have to globalize some of these legal instruments adopted in order to protect people who, for whatever reason, are on the margins of society.

4.5.1  United Nations Organization Essentially, the United Nations aims to maintain international security and peace, to develop friendly relations among nations and to promote social progress, better standards of living and human rights. However, the United Nations “thanks to its sui generis international character, can take action on major issues related to humanity such as, peace and security, climate change, sustainable development, human rights, disarmament, terrorism, humanitarian aid and health emergencies, gender equality, governance, among many others” (United Nations, 2019), such as, still, on the issues of refugees, stateless persons, migrants, social and economic development, promotion of democracy, among which the right to social security is included. In fact, one of the international soft law instruments adopted within the United Nations, and arguably one of the most important international instruments, was the Universal Declaration of Human Rights.2 This provides in its preamble “that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ... [and] universal respect for the fundamental rights and freedoms of the human being ... [is] a common ideal to be attained by all peoples and all nations.” (Universal Declaration of Human Rights, 1948a, b). However, the importance of this international instrument for the topic of social security, goes further, not least because, the

2  Adopted and proclaimed by the United Nations General Assembly (resolution 217 A III) on December 10, 1948.

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Universal Declaration of Human Rights did not stick to abstract concepts and statements on this topic, on the contrary, it was incisive in this scope which, naturally, demonstrates the importance of this topic at an international level and, attributes two specific articles to it. Thus, Article 22 of the Universal Declaration of Human Rights states: “[e]very human being, as a member of society, has the right to social security, the realization by national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality”. In the same vein, Article 25, paragraphs 1 and 2 state that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.” Indisputably, the United Nations is the pillar and engine of human rights development, always from the perspective of defending human dignity and the rights of humanity. And as a result of this mission and values many international legal instruments have been adopted, both hard law and soft law, such as, for example: (a) Slavery Convention 19263; (b) Convention on the Prevention and Punishment of the Crime of Genocide, 19484; (c) Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 19505; (d) Convention relating to the Status of Refugees, 19516; (e) Convention relating to the Status of Stateless Persons, 19547; (f) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 19568; (g) Convention Against Discrimination in Education, 19609;

 Adopted in Geneva, September 25, 1926.  Approved and proposed for signature and ratification or accession by the United Nations General Assembly resolution 260 A (III) of 09/12/1948. 5  Approved for ratification by the Resolution of the Assembly of the Portuguese Republic no. 31/91, of 10/10; ratified by the Decree of the President of the Republic no. 48/91, of 10/10. 6  Adopted on 07/28/1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, convened by General Assembly resolution 429 (V) of 14/12/1950. 7  Adopted and opened for signature by the United Nations Conference on the Status of Stateless Persons, held at United Nations Headquarters in New York from September 13 to 23, 1954, convened pursuant to United Nations Economic and Social Council resolution 526A (XVII) of April 26, 1954. 8  Adopted in Geneva on September 7, 1956. 9  Adopted by the General Conference at its 11th session, Paris, December 14, 1960. 3 4

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(h) Convention on the Reduction of Statelessness, 196110; (i) International Convention on the Elimination of All Forms of Racial Discrimination, 196511; (j) International Covenant on Civil and Political Rights, 196612; (k) Optional Protocol to the International Covenant on Civil and Political Rights, 196613; (l) Additional Protocol to the Convention relating to the Status of Refugees, 196714; (m) Declaration of the Fundamental Principles Concerning the Contribution of the Media to the Strengthening of International Peace and Understanding, to the Promotion of Human Rights and to Combating Racism, Apartheid and Incitement to War, 197815; (n) Convention on the Elimination of All Forms of Discrimination against Women, 197916; (o) Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 198117; (p) Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 198418; (q) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 198419; (r) Convention on the Rights of the Child, 198920;

 Adopted and opened for signature by the United Nations Conference on the Elimination or Reduction of Future Statelessness, convened by the UN Secretary-General pursuant to General Assembly resolution 896 (IX) 1 on December 4, 1954. 11  Adopted and opened for signature and ratification by United Nations General Assembly resolution 2106 (XX) of 21/12/1965. The High Commissioner for Immigration and Ethnic Minorities was the body designated for the purposes of Article 14, paragraph 2 of the Convention (Notice No. 95/2001 of August 24). 12  Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 2200A (XXI) of 16/12/1966. 13  Adopted and opened for signature, ratification, and accession by United Nations General Assembly resolution 2200A (XXI) of 16/12/1966. 14  Adopted on 28/07/1951 by the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, convened by General Assembly resolution 429 (V) of 12/14/1950. 15  Proclaimed by the General Conference of the United Nations Educational, Scientific and Cultural Organization at its 20th session, Paris, France, November 28, 1978. 16  Adopted and opened for signature, ratification, and accession by United Nations General Assembly resolution 34/180 of December 18, 1979. 17  Proclaimed by the United Nations General Assembly in its resolution 36/55 of November 25, 1981. 18  Adopted and opened for signature, ratification, and accession by United Nations General Assembly resolution 39/46 of December 10, 1984. 19  Adopted and opened for signature, ratification and accession by United Nations General Assembly resolution 39/46 of December 10, 1984. 20  Adopted and opened for signature, ratification, and accession by United Nations General Assembly resolution 44/25 of November 20, 1989. 10

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(s) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 199021; (t) Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 199222; (u) Rome Statute of the International Criminal Court, 199823; (v) Second Optional Protocol to the International Covenant on Civil and Political Rights to abolish the death penalty, 198924; (w) Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, 199925; (x) United Nations Convention against International Organized Crime, 200026; (y) Additional Protocol to the United Nations Convention against Transnational Organized Crime to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 200027; (z) Additional Protocol against the Smuggling of Migrants by Land, Sea and Air, 200028; (aa) Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, 200029; (bb) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 200030; (cc) Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, 200131;

 Adopted by the United Nations General Assembly in its resolution 45/158, December 18, 1990.  Adopted by the United Nations General Assembly in its resolution 47/135, December 18, 1992. 23  Law 31/2004, of 22/07, adapts Portuguese criminal legislation to the Statute of the Court, typifying the conducts that constitute the crime of violation of international humanitarian law (17th amendment to the Criminal Code). 24  Adopted and proclaimed by the United Nations General Assembly resolution 44/128 of December 15, 1989. 25  Adopted by the United Nations General Assembly in its resolution no. 54/4, on October 6, 1999, and opened for signature on December 10, 1999. 26  Adopted by the UN General Assembly at its 55th session, through resolution A/RES/55/25, November 15, 2000. 27  Adopted by the United Nations General Assembly at its 55th session, through resolution A/ RES/55/25, 11/15/2000. 28  Adopted and opened for signature, ratification and accession by the United Nations General Assembly resolution 55/25 of 15/11/2000. The European Union became party to this treaty on 06/09/2006. 29  Adopted and opened for signature, ratification and accession by the United Nations General Assembly resolution 54/263 of May 25, 2000. 30  Adopted and opened for signature, ratification and accession by the United Nations General Assembly resolution 54/263 of May 25, 2000. 31  Adopted by the UN General Assembly at its 55th session, through resolution A/RES/55/255, dated May 31, 2001. 21 22

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(dd) Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 200232; (ee) International Convention for the Protection of All Persons from Enforced Disappearance, 200633; (ff) International Convention for the Protection of All Persons from Enforced Disappearance, 200634; (gg) Convention on the Rights of Persons with Disabilities, 200635; (hh) Convention on the Rights of Persons with Disabilities, 200636; (ii) Optional Protocol to the Convention on the Rights of Persons with Disabilities, 200637; (jj) Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 200838; (kk) Optional Protocol to the Convention on the Rights of the Child on the Establishment of a Communication Procedure, 201139; However, the paradigmatic example of an international instrument specifically concerned with social security is undoubtedly the International Covenant on Economic, Social and Cultural Rights40: [recognizing] that, in accordance with the Universal Declaration of Human Rights, the ideal of the free human being, free from fear and want, cannot be realized unless conditions are created which will enable every person to enjoy his economic, social and cultural rights, as well as his civil and political rights (International Covenant on Economic, Social and Cultural Rights, 1966).

But it is in article 9 that it specifically provides that: [t]he States Parties to the present Covenant recognize the right of everyone to social security including social insurance” and article 10, paragraphs 1, 2, and 3 recognize that “[t]he

 Adopted and opened for signature in New  York on December 18, 2002, by United Nations General Assembly resolution 57/199. 33  Adopted on December 20, 2006, by the United Nations General Assembly at its 61st session through resolution A/RES/61/177, and opened for signature in Paris on February 6, 2007. 34  Adopted on December 20, 2006, by the United Nations General Assembly at its 61st session through resolution A/RES/61/177, and opened for signature in Paris on February 6, 2007. 35  Adopted December 13, 2006 (resolution A/RES/61/106) and opened for signature in New York on March 30, 2007. 36  Adopted on 13/12/2006 by the UN General Assembly in its resolution A/RES/61/106 and opened for signature in New York on 30/03/2007. 37  Adopted on 13/12/2006 (resolution A/RES/61/106) and opened for signature in New York on 30/03/2007. 38  Adopted by the United Nations General Assembly on 10/12/2008 by resolution A/RES/63/117; opened for signature on 24/09/2009, in New York. 39  Adopted by United Nations General Assembly resolution 66/138 of 19/12/2011 and opened for signature in Geneva, Switzerland, on 28/02/2012. 40  Adopted and opened for signature, ratification and accession by the General Assembly of the United Nations in its Resolution No. 2200-A (XXI) of December 16, 1966. 32

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widest possible protection and assistance should be accorded to the family, as a natural and fundamental group unit of society, particularly for its establishment and in its responsibility for the care and upbringing of dependent children. (...) Special protection should be accorded to mothers during a reasonable period of time before and after childbirth. During this period, working mothers shall be granted leave with pay or with adequate social security benefits. (...) Special measures of protection and assistance should be adopted in favor of all children and adolescents, without any discrimination for reasons of parentage or any other condition. (...) (International Covenant on Economic, Social and Cultural Rights, 1966).

In fact, this international legal instrument contains programmatic and generic norms at the social security level, allowing it to be adapted to the specific development of the countries that make up the UN.  However, the generic orientations, principles, rights and ambitions enshrined in this instrument, especially those safeguarding the most basic human rights, have allowed states to assimilate these norms into domestic legislation. However, as argued by Maria do Céu Pinto, it is worth emphasizing that, “[t]he UN is not a super-government: it is an intergovernmental organization that depends on the cooperation of states for the pursuit of its goals. It is the result of the political will of each of the member countries. The organization has never fully exercised its prerogatives and functions, because it has no power of its own and depends on the veto power of the five permanent member powers of the Security Council. (...) The problems and difficulties of today’s world, from conflict resolution to the fight against poverty and the fight against HIV/ AIDS, have made it clear that the UN is more necessary than ever.” (Pinto, 2010, p.295). In fact, the United Nations is the real engine of human development and human rights.

4.5.2  International Labor Organization The Treaty of Versailles, signed on June 28, 1919, by the Peace Conference after World War I, in its Part III provided for the establishment of an agency of the League of Nations, namely, a specialized agency for labor issues - the International Labor Organization (ILO). This multilateral agency of the United Nations, now with 187 members, is responsible for the formulation and enforcement of international labor standards and is based on a tripartite structure composed of representatives of governments, employers’ and workers’ organizations. Essentially, the International Labor Organization (ILO) is dedicated to promoting social justice and internationally recognized human and labor rights, pursuing the fundamental mission that social justice is essential for universal and lasting peace (Social Security, 2020). Thus, from a normative point of view, the ILO issues conventions and recommendations, which are differentiated according to the degree of bindingness resulting from them, that is, conventions contain norms that are likely to be binding on the member states that approve and ratify them, while recommendations contain guidelines,

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orientations or programmatic principles, which do not assume a binding normative character. (Diário da República Eletrónico, 2021). Since its creation in 1919, the ILO’s tripartite members have adopted 189 International Labor Conventions41 and  Hours of Work (Industry) Convention, 1919 (No.1); Night Work (Women) Convention, 1919, (No. 4); Night Work of Minors (Industry) Convention, 1919, (No. 6); Minimum Age (Sea) Convention, 1920 (No.7); Unemployment Indemnity (Shipwreck) Convention, 1920 (No.8); Seafarers` Placement Convention, 1920, (No.9); Right of Association (Agriculture) Convention, 1921, (No. 11); Industrial Accidents Compensation (Agriculture) Convention, 1921 (No. 12); Weekly Rest (Industry) Convention, 1921, (No. 14); Medical Examination of Young Persons (Sea Labor) Convention, 1921, (No. 16); Workmen’s Compensation (Accidents) Convention, 1925 (No.17); Workmen’s Compensation (Occupational Diseases) Convention, 1925 (No.18); Equality of Treatment (Accident Compensation) Convention, 1925 (No.19); Seamen’s Articles of Agreement Convention, 1926 (No.22); Repatriation of Seamen Convention, 1926 (No.23); Minimum Wage-­ Fixing Machinery Convention, 1928 (No.26); Marking of Weight (Packages Transported by Vessels) Convention, 1929 (No.27); Forced Labor Convention, 1930 (No.29); Underground Work (Women) Convention, 1935 (No.45); Officers` Competency Certificates Convention, 1936 (No.53); Holidays with Pay (Sea) Convention, 1936 (No.54); Shipowners’Liability (Sick and Injured Seamen) Convention, 1936 (No.55); Sickness Insurance (Sea) Convention, 1936 (No.56); Hours of Work and Manning (Sea) Convention, 1936 (No.57); Minimum Age (Sea) Convention (Revised), 1936 (No.58); Convention concerning Statistics of Wages and Hours of Work, 1938 (No.63); Food and Catering (Ships’Crews) Convention, 1946 (No.68); Certification of Ships’Cooks Convention, 1946 (No.69); Social Security (Seafarers) Convention, 1946 (No.70); Paid Vacations (Seafarers) Convention, 1946 (No.72); Medical Examination (Seafarers) Convention, 1946 (No. 73); Certification of Able Seamen Convention, 1946 (No.74); Accommodation of Crews Convention, 1946 (No.75); Wages, Hours of Work and Manning (Sea) Convention, 1946 (No.76); Medical Examination of Young Persons (Industry) Convention, 1946 (No.77); Medical Examination of Young Persons (Non-Industrial Occupations) Convention, 1946 (No.78); Labor Inspection Convention, 1947 (No. 81); Night Work (Women) Convention (Revised), 1948 (No.89); Freedom of Association and Protection of the Rights to Organize Convention, 1948 (No.87); Employment Service Convention, 1948 (No.88); Paid Vacations (Seafarers) Convention (Revised), 1949 (No.91); Accommodation of Crews Convention (Revised), 1949 (No.92); Wages, Hours of Work and Manning (Sea) Convention (Revised), 1949 (No.93); Protection of Wages Convention, 1949 (No.95); Fee-Charging Employment Agencies Convention (Revised), 1949 (No.96); Migration for Employment Convention (Revised), 1949 (No.97); Right to Organize and Collective Bargaining Convention, 1949 (No.98); Equal Remuneration Convention, 1951 (No.100); Social Security (Minimum Standards) Convention, 1952 (No.102); Maternity Protection Convention (Revised), 1952 (No.103); Abolition of Penal Sanctions (Indigenous Workers) Convention, 1955 (No. 104); Abolition of Forced Labor Convention, 1957 (No.105); Weekly Rest (Commerce and Offices) Convention, 1957 (No.106); Indigenous and Tribal Populations Convention, 1957 (No.107); Seafarers` Identity Documents Convention, 1958 (No.108); Wages, Hours of Work and Manning (Sea) Convention (Revised), 1958 (No. 109); Discrimination (Employment and Occupation) Convention, 1958 (No.111); Radiation Protection Convention, 1960 (No.115); Social Policy (Basic Aims Standards) Convention, 1962 (No. 117); Equality of Treatment (Social Security) Convention, 1962 (No.118); Hygiene (Commerce and Offices) Convention, 1964 (No.120); Employment Policy Convention, 1964 (No.122); Medical Examination of Young Persons (Underground Work) Convention, 1965 (No.124); Maximum Weight Convention, 1967 (No.127); Invalidity, Old-Age and Survivors’Benefits Convention, 1967 (No. 128); Labor Inspection (Agriculture) Convention, 1969 (No.129); Minimum Wage Fixing Convention, 1970 (No.131); Holidays with Pay Convention (Revised), 1970 (No.132); Accommodation of Crews (Supplementary Provisions) Convention, 1970 (No.133);Prevention of Accidents (Seafarers) Convention, 1970 (No.134); Workers’Representatives Convention, 1971 (No.135); Dock Work

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205 Recommendations on various topics (employment, social protection, human resources, health and safety at work, maritime labor, etc.). In addition, another soft law instrument was approved in 1998, the Declaration of Fundamental Principles and Rights at Work, “[whereas] the creation of the ILO stems from the conviction that social justice is essential to ensure universal and permanent peace; [whereas] economic growth is essential, but insufficient, to ensure equity, social progress and the eradication of poverty, which confirms the need for the ILO to promote sound social policies, justice and democratic institutions; (...) [considering] that the ILO should pay special attention to the problems of persons with special social needs, in particular the unemployed and migrant workers, mobilize and stimulate national, regional and international efforts directed to solving their problems, and promote effective policies aimed at job creation” (Declaração da OIT sobre os Princípios e Direitos Fundamentais no Trabalho, 1998). The normative instruments adopted by the ILO regarding the social security system can be grouped as follows: a) first generation instruments (1919 to 1939), where social protection is dealt with in the form of social insurance; b) second generation

Convention, 1973 (No. 137); Minimum Age Convention, 1973 (No. 138); Occupational Cancer Convention, 1974 (No.139); Human Resources Development Convention, 1975 (No.142); Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143); Tripartite Consultation (International Labor Standards) Convention, 1976 (No.144); Continuity of Employment (Seafarers) Convention, 1976 (No.145); Seafarers’Annual Leave with Pay Convention, 1976 (No.146); Merchant Shipping (Minimum Standards) Convention, 1976 (No. 147); Working Environment (Air Pollution, Noise and Vibration) Convention, 1977 (No. 148); Nursing Personnel Convention, 1977 (No.149); Labor Administration Convention, 1978 (No. 150); Labor Relations (Public Service) Convention, 1978 (No.151); Collective Bargaining Convention, 1981 (No.154); Occupational Safety and Health Convention, 1981 (No.155); Maintenance of Social Security Rights Convention, 1982 (No.157); Workers with Family Responsibilities Convention, 1981 (No.156); Termination of Employment Convention, 1982 (No. 158); Vocational Rehabilitation and Employment (Disabled Persons) Convention, 1983 (No. 159); Labor Statistics Convention, 1985 (No.160); Asbestos Convention, 1986 (No. 162); Seafarers’Welfare Convention, 1987 (No. 163); Health Protection and Medical Care (Seafarers) Convention, 1987 (No. 164); Social Security (Seafarers) Convention (Revised), 1987 (No.165); Repatriation of Seafarers Convention (Revised), 1987 (No. 166); Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168); Night Work Convention, 1990 (No. 171); Protection of Workers’Claims (Employer’s Insolvency) Convention, 1992 (No.173); Part-Time Work Convention, 1994 (No. 175); Safety and Health in Mines Convention, 1995 (No.176); Labor Inspection (Seafarers) Convention, 1996 (No. 178); Protocol of 1996 to the Merchant Shipping (Minimum Standards) Convention, 1976 (P.147); Recruitment and Placement of Seafarers Convention, 1996 (No.179); Seafarers’Hours of Work and the Manning of Ships Convention, 1996 (No.180); Private Employment Agencies Convention, 1997 (No.181); Worst Forms of Child Labor Convention, 1999 (No.182); Maternity Protection Convention, 2000 (No.183); Convention concerning the Revision of the Maternity Protection Convention (Revised), 1952 (No. 183); Safety and Health in Agriculture Convention, 2001 (No. 184); Maritime Labor Convention, 2006 (No. 184); Protocol of 2002 to the Occupational Safety and Health Convention, 1981 (P.155); Seafarers` Identity Documents Convention (Revised), 2003, as amended (No. 185); Maritime Labor Convention, 2006 (MLC, 2006); Promotional Framework for Occupational Safety and Health Convention, 2006 (No.187); Work in Fishing Convention, 2007 (No.188); Domestic Workers Convention, 2011 (No.189); Protocol of 2014 to the Forced Labor Convention, 1930 (P.029).

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instruments (1940 to 1965) consolidate the international model of social security; c) third generation instruments (1965 to 1988) focus on the consolidation of social security systems and on raising the levels of protection in terms of population covered, amounts and types of benefits. (Social Security, 2020). In particular, the adoption of these multiple Conventions, we must highlight only three of these Conventions, namely, Convention no. 102, concerning the minimum standard of Social Security, regarding medical care, sickness benefits, unemployment benefits, old-age benefits, benefits in case of accidents at work and occupational diseases, family benefits, maternity benefits, disability benefits and survivor’s benefits. It is noteworthy that this instrument defines, for example: A) what the benefits must cover, in the case of medical care: the benefits must cover at least: a) In the case of morbid condition: i) general practitioner care, including domiciliary visiting; ii) specialist care at hospitals for in-patients and out-­ patients, and such specialist care as may be availabre outside hospitals; iii) the essential pharmaceutical supplies as prescribed by medical or other qualified practitioners; and; iv) hospitalisation where necessary; and; b) in case of pregnancy and confinement and their consequences: (i) pre-natal, confinement and post-natal care either by medical practitioners or by qualified midwives; and (ii) hospitalization, when necessary. “(Social Security (Minimum Standards) Convention No.102, 1952)42; This Convention no. 102 was considered by Sebastião Nóbrega Pizarro as a “true Magna Carta of international social security, and of the subsequent instruments that took it as a model or reference (Pizarro, 1997, p. XIX).

B) who should be granted sickness benefit (art. 13 to 18), unemployment benefit (art. 19 to 24), old age benefit (art. 25 to 30), benefits in case of accidents at work and occupational diseases (art. 31 to 38), family benefits (art. 39 to 45), maternity benefits (art. 46 to 52), disability benefits (art. 53 to 58), survival benefits (art. 59 to 64). C) how periodic payments are calculated (articles 65 to 67). Essentially: [t]he importance of this Convention stems from the fact that in addition to serving as a guide to the definition of the internal regimes of the member states, it has served as a model for international instruments of the same nature, such as those of the Council of Europe (Social Security, 2020).

On the other hand, Convention No. 118 on Equal Treatment of Nationals and Foreigners in Social Security addresses in essence, as provided in Article 3(1): [any] Member, for which the present Convention is in force, shall accord in its territory to nationals of any other Member for which the said Convention is also in force, the same treatment as its own nationals in accordance with its legislation, both as regards subjection to and entitlement to benefits, in any branch of social security for which it has accepted the obligations of the Convention (Convenção n° 118, sobre a Igualdade de Tratamento entre Nacionais e Estrangeiros em Previdência Social, 1962).

Truly, equal treatment or reciprocity of work is what really makes sense in social security. And finally, Convention No. 157 on the maintenance of social security

42

 Cf. Article 10.1 (a) and (b) of Social Security (Minimum Standards) Convention No.102, 1952

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rights applies to persons who are or have been subject to the legislation of one or more Members, as well as to the members of their families and to their survivors, in all cases where the international system of maintenance of rights established by this Convention requires the legislation of a Member other than that in whose territory they habitually or temporarily reside to be taken into account (Convenção n° 157, sobre a Manutenção de Direitos de Segurança Social, 1982).43 Thus, the importance of the ILO should be emphasized as it “works with its members to extend the scope of social protection in two directions: either by supporting the rapid adoption of national social protection floors that contain basic social security guarantees to prevent and mitigate poverty and social exclusion, or at the same time by improving existing social protection schemes to progressively provide a better level of benefits to as many people as possible.” (Social Security, 2020). In short, although we have only focused the analysis on these three Conventions because they are more directly related to Social Security, it is worth emphasizing that all the other instruments adopted within the ILO, directly or indirectly, address issues related to work, working conditions, rights and guarantees, support and assistance, and, in particular, social security.

4.5.3  Council of Europe On May 5, 1949, ten European states signed in London the Convention establishing the Council of Europe, whose purpose, according to Article 1 of the Convention, was to bring about a closer union among its members in order to safeguard and promote their common ideals and principles and to foster their economic and social progress (Council of Europe Statute, 1949). However, it should be noted that, since 1989: the Council has had observer member status at the United Nations (UN), since the resolution passed by the United Nations General Assembly (UNGA). As such, the [Council of Europe] is regularly represented at the UNGA and plays an important role in the organization of regional conferences on various levels of the human rights field (Gregório et al., 2000, p. 148).

As the same authors point out, the Council of Europe is guided by the European Convention on Human Rights: The Council of Europe is the main organization for the defense of human rights on the European continent, with 47 members in total, of which [27] are part of the European Union (EU). The organization is guided by the European Convention on Human Rights, a treaty signed by all members, which aims to protect human rights, the maintenance of democracy and the rule of law, which can be understood as the tripod that supports the proper development of countries. The principles that underpin the Council of Europe (COE) are the defense of freedom of expression and the media, freedom of association, and the protection of national minorities (Gregório et al., 2000, p. 148).

43

 Cf. Article 3.1 of Convention No. 157 on the Maintenance of Social Security Rights (1982).

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It should be noted, however, that the only way in which the Council of Europe binds countries is to impose international agreements negotiated by member states on various parameters of life in society. Thus, and with specific regard to the European social model, the Council of Europe has adopted two basic instruments aimed at minimum harmonization at the social security level, namely the European Social Charter of 1961, as well as its additional protocols, and the Revised European Social Charter of 1996, as well as the European Social Security Code and its Protocol. The European Social Charter of 1961 presents a set of programmatic rules on social security, aiming to harmonize and level above a certain limit the policies and legislations of the member states. In addition to the right to social security (article 12), it enshrines the right to social and medical assistance (article 13) and the right to social services (article 14), protecting 23 fundamental rights (European Social Charter, 1996). And, the 1996 Charter attempts to adapt to the new desires of workers and developments in labor law [v.g. the right to work, to fair working conditions, to safety and hygiene at work, to fair remuneration, the right to organize and to collective bargaining, the right of children and adolescents to protection, the right of women workers to maternity protection, the right to vocational guidance, vocational training, health protection, social security, social and medical assistance, the benefit of social services the right of persons with disabilities to autonomy, social integration and participation in the life of the community, the right of the family to social, legal and economic protection, the right of children and adolescents to social, legal and economic protection, the right to engage in gainful activity in the territory of the other Parties, the right of migrant workers and their families to protection and assistance The right to equal opportunities and equal treatment in employment and occupation without discrimination on the grounds of sex, the right to information and consultation, the right to take part in determining and improving working conditions and the working environment, the right of the elderly to social protection, the right to protection in the event of dismissal, the right of workers to protection of their claims in the event of the insolvency of their employer, The right to dignity at work, the right of workers with family responsibilities to equal opportunities and equal treatment, the right of workers’ representatives to protection within the company and facilities to be granted to them, the right to information and consultation in collective dismissal procedures, the right to protection against poverty and social exclusion, the right to housing - Art. 1 to 31] (Social Security, 2020). On the other hand, and following Convention 102 of the International Labor Organization, which set minimum social security standards, the European Social Security Code sets a higher level than the minimum standard, mainly because “one of the objectives of the Council of Europe’s social program is to encourage all members to develop their social security systems further. Recognizing the desirability of harmonizing the social burdens of member countries” (European Social Security Code, 1964). Thus, this Code sets a higher level for the population to be covered, for the amounts of the benefits concerning, for example, medical assistance (articles 7 to 12), sickness benefits (articles 13 to 18), unemployment benefits (articles 19 to 24), old age benefits (articles 25 to 30), benefits in case of work accidents and occupational diseases (articles 31 to 38), family benefits (articles 39 to 45), maternity

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benefits (articles 46 to 52), disability benefits (articles 53 to 58), disability benefits (articles 53 to 59), family allowances (articles 39 to 59), maternity benefits (articles 46 to 52), disability benefits (articles 53 to 59), disability benefits (articles 53 to 59), family allowances (articles 53 to 59) and family allowances (articles 53 to 59). 31 to 38), family benefits (articles 39 to 45), maternity benefits (articles 46 to 52), disability benefits (articles 53 to 58), survival benefits (articles 59 to 64) and finally, similar to ILO Convention no. 102, it also establishes the method for calculating periodic payments (articles 65 to 67). In essence, the Code tends to encourage the contracting states to develop their social security systems further and to direct this development towards a progressive harmonization of the material and personal scope of these systems and, therefore, of the financial burdens, to reduce the competitive disparities of the national economies. The states thus undertake to adapt their legislation so that it complies with what is established and does not conflict with the provisions of the Code. (Social Security, 2020). In addition, the Council of Europe has adopted several other international instruments in this area, such as: a) the European Convention on Social Security of 1972. This aims to regulate in a special instrument matters relating to the social security of foreigners and emigrants, particularly with regard to equal treatment with nationals and the preservation of rights acquired or in the process of being acquired. Affirming the principle of equal treatment of nationals of the Contracting Parties, refugees and stateless persons with respect to the social security legislation of any Contracting Party, as well as the principle of maintenance of the advantages deriving from the benefit of social security legislations (European Convention on Social Security, 1972); b) other international coordination instruments “– European Interim Agreements on Social Security Regimes concerning invalidity, old age and survival, ratified by Decree no. 3/78 of January 9; – European Interim Agreement on Social Security Regimes other than invalidity, old age and survival, ratified by Decree no. 13/78 of January 25; – European Convention on Social and Medical Assistance and its Protocol, ratified by Decree no. 182/77, December 31; – European Convention on Social Security and Complementary Agreement, ratified by Decree no. 117/82, October 19; – European Convention on the Legal Status of Migrant Workers, ratified by Decree no. 162/78, December 27” (Social Security, 2020). In short, the Council of Europe has always been a lever for safeguarding the most elementary human rights, and it is also a driving force behind practically all the instruments adopted by the European Union.

4.5.4  European Union Parts of the preamble to the Treaty on European Union are a good illustration of the European Union’s aims and ambitions, “[drawing] inspiration from the cultural, religious and humanist heritage of Europe, from which have sprung the universal values of inviolable and inalienable human rights, freedom, democracy, equality

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and the rule of law, [confirming] its attachment to fundamental social rights as defined in the European Social Charter signed in Turin on October 18, 1961, and in the 1989 Community Charter of the Fundamental Social Rights of Workers [44], [determined] to promote economic and social progress for their peoples (...)” (Treaty on European Union, 1992). Moreover, Article 151, Treaty of Lisbon 2007, follows the same line principles of the previous Treaty, namely, points c), d), h), j) and k) of paragraph 1 of Article 153 state that the Union shall support and complement the activities of the Member States in the following fields: a) Social security and social protection of workers; d) Protection of workers where their employment contract is terminated; h) Integration of persons excluded from the labor market; j) Combating social exclusion; k) Modernization of social protection systems (Treaty of Lisbon, 2007). On the other hand, we cannot forget that the Charter of Fundamental Rights of the European Union itself also provides, in an exhaustive manner, in its article 34 under the heading (Social Security and Social Assistance) that “1. The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices 2. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national law and practices. (3) In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Union law and national laws and practices. (Charter of Fundamental Rights of the European Union, 2012). Thus, in general, we can say that the right to social security is embodied in the European Union, in its original law, but mainly in its secondary law (directives, recommendations, resolutions and regulations), for example: 1. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security45; 2. Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes46; 3. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth

 The Community Charter of the Fundamental Social Rights of Workers is non-binding and was adopted on December 9, 1989. 45  See OJ L 6, 10.1.1979, pp. 24–25. 46  See OJ L 225, 12.8.1986, pp. 40–42. 44

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individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)47; 4. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)48; 5. Directive 2007/30/EC of the European Parliament and of the Council of 20 June 2007 amending Council Directive 89/391/EEC, its individual Directives and Council Directives 83/477/EEC, 91/383/EEC, 92/29/EEC and 94/33/EC with a view to simplifying and rationalizing the reports on practical implementation49; 6. Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC50; 7. Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC51; 8. Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights52; 9. 82/857/EEC: Council recommendation of 10 December 1982 on the principles of a Community policy with regard to retirement age53; 10. 92/441/EEC: Council Recommendation of 24 June 1992 on common criteria concerning sufficient resources and social assistance in social protection systems54; 11. 92/442/EEC: Council Recommendation of 27 July 1992 on the convergence of social protection objectives and policies55; 12. Council Resolution of 30/06/93 on Flexible Retirement Schemes; 13. Regulation (EC) No 883/2004 of 29 April 2004 on the coordination of social security systems,56 amended by Regulation (EC) No 988/2009 of the European Parliament and of the Council of 16 September 2009, Commission Regulation

 See OJ L 348, 28.11.1992, pp. 1–7.  See OJ L 204, 26.7.2006, pp. 23–36. 49  See OJ L 165, 27.6.2007, pp. 21–24. 50  See OJ L 68, 18.3.2010, pp. 13–20. 51  See OJ L 180, 15.07.2010, pp. 1–10. 52  See OJ L 128, 30.04.2014, pp. 1–7. 53  See OJ L 357, 18.12.82, pp.27–28. 54  See OJ L 245, 26.08.1992, pp. 46–48. 55  See OJ L 245, 26.08.1992, pp.49–52. 56  See OJ L 166, 30.4.2004, pp. 1–123. 47 48

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(EU) No 1244/2010 of 9 December 2010, Regulation (EU) No 465/2012 of the European Parliament and of the Council of 22 May 2012, Commission Regulation (EU) No 1224/2012 of 18 December 2012, Council Regulation (EU) No 517/2013 of 13 May 2013, Commission Regulation (EU) No 1372/2013 of 19 December 2013, as amended by Commission Regulation (EU) No 1368/2014 of 17 December 2014; 14. Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, as amended by Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 201057; 15. Regulation (EU) 2019/500 of the European Parliament and of the Council of 25 March 2019 establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom from the Union.58 As we can see from the above documents, there are a multiplicity of instruments of secondary European Union law that address the issue of social security. However, it should also be noted that many of these secondary law instruments are adaptations of other legal instruments of the Council of Europe, despite this, it is never too much to emphasize that “the case law of the Court of Justice, which ensures the uniform interpretation and application both of the Treaties and of secondary law acts, in particular the aforementioned Social Security Regulations, which, without altering the characteristics of the different national social security schemes, coordinate their application to people who move in the exercise of their right to free movement” (Social Security, 2020). As Pizarro (1997) argued that the “Community Regulations on social security that apply today to the social security systems of the Member States of the European Economic Area constitute the most complete and elaborate model of coordination system”: ...the Community Regulations on social security that apply today to the social security systems of the Member States of the European Economic Area constitute the most complete and elaborate model of coordination system, and certainly the one with the greatest practical impact that has ever been adopted internationally. These characteristics are not foreign either to the specificities of the community acts of secondary legislation that integrate them or, above all, to the dynamic influence of the considerable acquis, both from a quantitative and qualitative point of view, of the consolidated jurisprudence, in this field, of the Court of Justice of the European Communities (Pizarro, 1997, p. XIX).

Thus, and as Sebastião Nóbrega Pizarro (1997) stated, and bearing in mind this variety of sources and instruments, it is perhaps more appropriate, or at least more convenient, and undoubtedly simpler, to describe International Social Security Law as the set of legal instruments that establish relations of coordination, harmonization or convergence among national legislations, systems and policies on social security 57 58

 See OJ L 124, 20.05.2003, pp. 1–3.  See OJ L 85, 27.3.2019. pp-35-38.

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or social protection. (Pizarro, 1997, p. XXI). However, talking about social security and social justice is not easy, because it means talking about the other and about ourselves, it means focusing on the issue of protecting the other and ourselves, it means addressing the support in case of need, and, most importantly, it means definitely understanding that, although we are all equal before the law, we do not all have the same economic, social, cultural, family, work, and/or support conditions, so it is essential that social policies are also based on equity, because only then can we respect diversity and adopt inclusive policies.

4.6  Conclusion Social justice, social security, dignity, equality, equity and human rights are legal terminologies that serve to strengthen social cohesion among people and the co-­ responsibility of all for any violations of the most basic human rights. Mainly because all people, directly or indirectly, at some point in their lives are faced with the contingencies of old age, unemployment, disability, children, family, death, illness, homelessness, among other factors, and therefore need public policies that can support its members in these situations, with the necessary social equity. Thus, it is fundamental that all international instruments, both hard law and soft law, which focus on social justice and social security policies, human rights and/or humanitarian law, base their guidelines not only on the principle of equality of people before the law, but on the principle of necessary equity among people. It is crucial to realize that people must be treated differently and with equity if equality among people is to be achieved.

References Charter of Fundamental Rights of the European Union. (2012). Retrieved from https://eur-­lex. europa.eu/legal-­content/EN/TXT/PDF/?uri=CELEX:12012P/TXT&from=PT. Constituição da República Portuguesa. (2005). VII Revisão Constitucional. Retrieved from https://www.parlamento.pt/Legislacao/Paginas/ConstituicaoRepublicaPortuguesa.aspx. 11 November 2021. Convenção n° 118, sobre a Igualdade de Tratamento entre Nacionais e Estrangeiros em Previdência Social. (1962). Retrieved from https://www.ilo.org/brasilia/convencoes/WCMS_235330/ lang%2D%2Dpt/index.htm. Convenção n° 157, sobre a Manutenção de Direitos de Segurança Social. (1982). Retrieved from https://www.ilo.org/brasilia/convencoes/WCMS_242710/lang%2D%2Dpt/index.htm. Council of Europe Statute, (1949). Retrieved from http://www.dhnet.org.br/direitos/sip/euro/1.htm. Cunha, T. (2005). A questão da paz no Fórum Social Mundial. Junus. Retrieved from https://www. janusonline.pt/arquivo/2005/2005_4_2_16.html#dados. Declaração da OIT sobre os Princípios e Direitos Fundamentais no Trabalho (1998). Retrieved from https://www.ilo.org/public/english/standards/declaration/declaration_portuguese.pdf. 25 November 2021.

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Diário da República Eletrónico (2021). OIT (Organização Internacional do Trabalho). Lexionário. Retrieved from https://dre.pt/web/guest/lexionario/-­/dj/148212787/view. Diário de Notícias. (2021, October 17). Mais de 1,6 milhões de portugueses são pobres e vivem com menos de 540 euros por mês. Retrieved from https://www.dn.pt/sociedade/mais-­de-­16-­milhoes-­ de-­portugueses-­sao-­pobres-­e-­vivem-­com-­menos-­de-­540-­euros-­por-­mes-­14228327.html. Pinto, M. C. (2010). O Papel da ONU na criação de uma nova ordem mundial. Lisboa. Estêvão, C. V. (2007). Direitos Humanos, Justiça e Educação. Educação Sociedade & Cultura, n° 25. Retrieved from https://www.fpce.up.pt/ciie/revistaesc/ESC25/CarlosEstevao.pdf. European Convention on Social Security. (1972). Retrieved from https://gddc.ministeriopublico. pt/sites/default/files/documentos/instrumentos/dec117-­1982.pdf. European Social Charter. (1996). Retrieved from https://gddc.ministeriopublico.pt/sites/default/ files/documentos/instrumentos/carta_social_europeia_revista.pdf. European Social Security Code. (1964). Retrieved from https://gddc.ministeriopublico.pt/sites/ default/files/documentos/instrumentos/dec35-­1983.pdf. Globo Repórter. (2018, April 27). Apesar dos belos palácios, 70% da população da Índia vive na pobreza. Retrieved from http://g1.globo.com/globo-­reporter/noticia/2018/04/apesar-­dos-­ belos-­palacios-­70-­da-­populacao-­da-­india-­vive-­na-­pobreza.html. Goodall, J. (2018). The most intellectual creature to ever walk Earth is destroying its only home. The Guardian (3/11/2018). Retrieved from https://www.theguardian.com/environment/2018/ nov/03/the-­most-­intellectual-­creature-­to-­ever-­walk-­earth-­is-­destroying-­its-­only-­home. . Gregório, A.S., de Paiva, F.B., de Penna, G.M.L., Vitola, M.R., de Longo, P.H.A. (2000). Conselho da Europa - A Situação Humanitária na Criméia. Porto Alegre, Guia de Estados 2020, UFRGS MUNDI.  Retrieved from https://www.ufrgs.br/ufrgsmundi/wp-­content/uploads/2020/09/ GUIA-­UFRGSMUNDI-­2020.pdf#page=147. Heck, S. (2021). Um outro mundo possível: Fórum Social Mundial 20 anos. Retrieved from https://sul21.com.br/colunasselvino-­heck/2021/01/um-­outro-­mundo-­possivel-­forum-­social-­ mundial-­20-­anos/. Heller, A. (1998). Além da justiça. Civilização Brasileira. International Covenant on Economic, Social and Cultural Rights. (1966). Retrieved from https:// www.dge.mec.pt/sites/default/files/ECidadania/educacao_para_a_Defesa_a_Seguranca_e_a_ Paz/documentos/pacto_internacional_sobre_direitos_economicos_sociais_culturais.pdf. Jornal Económico. (2016, October 03). 800 milhões de pessoas ainda vivem abaixo do limiar da probreza. Retrieved from https://jornaleconomico.sapo.pt/ noticias/800-­milhoes-­pessoas-­ainda-­vivem-­do-­limiar-­da-­pobreza-­74174 Lesbaupin, I. & Cruz, M. (2019). Novos Paradigmas para outro Mundo Possível. 1ª edição, S. Paulo. Usina Editora. Retrieved from https://fase.org.br/wp-­content/uploads/2019/05/Livro-­ Novo-­Paradigmas-­para-­Outro-­Mundo-­Poss%C3%ADvel-­2019.pdf. Nações Unidas. (2019). História da ONU. Retrieved from https://unric.org/pt/historia-­da-­onu/. Notícias. (2021). Pandemia aumenta desigualdade social na Alemanha. Retrieved from https:// www.dw.com/pt-­br/pandemia-­aumenta-­desigualdade-­social-­na-­alemanha/a-­56830278. Nussbaum, M.C. (2013). Fronteiras da Justiça: Deficiência, nacionalidade, pertencimento à espécie. (Tradução de Susana de Castro). Martins Fontes. Observador. (2018, January 22). Relatório. 1% da população ficou com 80% da riqueza mundial. Retrieved from https://observador.pt/2018/01/22/relatorio-­1-­da-­populacao-­ficou-­com-­ 80-­da-­riqueza-­mundial/. Pizarro, S. N. (1997). Prefácio. In Direito Internacional e Europeu de Segurança Social, Lisboa, Edições Cosmos. Regulation (EU) No 235/2014 of the European Parliament and of the Council of 11 March 2014, establishing a financing instrument for democracy and human rights worldwide. Retrieved from https://eur-­lex.europa.eu/legal-­content/EN/TXT/PDF/?uri=CELEX:32014R0235&from=PT. Rodrigues, J.N. (2009). A Política Exterior e de Segurança Comum. In Scientia Ivridica, 317, Tomo LVIII, Janeiro/março. Scholte, J. A. (2001). Civil society and democray. In Global governance. CSGR Working Paper n.65/01, Centre for the Studay of Globalization and Regionalization. Universidade de Warwich.

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Sguissardi, V. (2021). Fórum Social Mundial: um outro mundo é possível. Jornal da Educação Education and Society 22(75), Ago. Retrieved from https://www.scielo.br/j/es/a/LTbNHTQh 5xss3Tv5ZFsgLYc/?lang=pt. Social Security (2020). As Organizações Internacionais e a Segurança Social. Retrieved from https://www.seg-­social.pt/as-­organizacoes-­internacionais-­e-­a-­seguranca-­social. Social Security (Minimum Standards) Convention No.102 (1952). Retrieved from https://www.ilo. org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_INSTRUMENT_ID,P12100_LANG_ CODE:312247,en:NO. The World Bank (2018). Poverty and shared prosperity 2018: Piecing together the poverty puzzle - Frequently asked questions. Retrieved from https://www.worldbank.org/en/research/brief/ poverty-­and-­shared-­prosperity-­2018-­piecing-­together-­the-­poverty-­puzzle-­frequently-­asked-­ questions. Tratado da União Europeia. (1992). Retrieved from https://eur-­lex.europa.eu/legal-­content/PT/ TXT/?uri=CELEX%3A12016M000. Treaty of Lisbon. (2007). Retrieved from https://www.parlamento.pt/europa/Documents/Tratado_ Versao_Consolidada.pdf. Tree (2021). Equidade e igualdade: qual é a diferença e a importância dessa distinção no ambiente corporativo. Retrieved from https://treediversidade.com.br/ equidade-­e-­igualdade-­qual-­a-­diferenca/. Universal Declaration of Human Rights (1948a). Retrieved from https://www.unicef.org/brazil/ declaracao-­universal-­dos-­direitos-­humanos. Universal Declaration of Human Rights. (1948b). Retrieved from https://dre.pt/dre/geral/ legislacao-­relevante/declaracao-­universal-­direitos-­humanos. Vatican News. (02/10/2021). Francisco aos juízes argentinos: não há democracia com fome. Retrieved from https://www.vaticannews.va/pt/papa/news/2021-­10/francisco-­aos-­juizes-­ argentinos-­nao-­ha-­democracia-­com-­a-­fome.html. Vieira, O. V., & Dupree, A. S. (2004). Reflexões acerca da sociedade civil e dos direitos humanos. Revista Internacional de Direitos Humanos, 1(1) Retrieved from https://www.scielo.br/j/sur/a/ NXjt7Yd5KhY7GVXV6kW5xxL/?format=pdf&lang=pt Weber, T. (2013). Ética e filosofia do Direito: autonomia e dignidade da pessoa humana. Vozes. Zeifert, A.  P. B. (2019). Pensar as Políticas Públicas a partir do enfoque das capacidades: justiça social e respeito aos direitos humanos. Revista Direitos Sociais e Políticas Públicas (UNIFAFIBE), 7(1) Retrieved from https://d1wqtxts1xzle7.cloudfront. net/61217672/542-­1772-­1-­PB20191114-­87426-­o5zsgm-­with-­cover-­ José Noronha Rodrigues Professor José Noronha Rodrigues, Ph.D. in Law ‘CUM LAUDE’ from the University of Santiago de Compostela (Spain), recognized as the equivalent of the degree of Doctor of Law, by the Faculty of Law of Lisbon University. He holds an MS.c. in International Relations (2004), a DEA in European Law (2008), a BS.c. in Law and Post Graduate in Labor Law (2003) and Regional Law (1998). He is currently the Chair of the UNCRC Policy Center, ViceDean and Professor of the Faculty Business and Economics at the University of the Azores. Author of the Chapter ‘Refugees and Migrant Children in Europe’ In V. Vissing & S. Leitão (Eds.), (2021). The Rights of Unaccompanied Minors – Perspectives and Case Studies on Migrant Children. Springer, and has contributed several articles in international and national law journals.  

Dora Cristina Ribeiro Cabete Professor Dora Cristina Ribeiro Cabete, Professor of Law at the Faculty of Business and Economics at the University of Azores, Ph.D. candidate of Law at the Nova Scholl of Law, and Ph.D. candidate of Economy at Azores University, Master in Social Sciences, Postgraduate in Social Sciences, Degree in Law and Sociology, Senior Lawyer at NRDC & Advogados. Co-author of chapter ‘Ultracentralidade Euro-Atlântica Açoriana’ (2020). Revista Temas de Integração, nº 40 and ‘O Terrorismo a nova desordem mundial: uma vulnerabilidade’ (2020). Revista de Direito Constitucional e International (RDCI), 28(122), 369–385.  

Chapter 5

Inclusive Education and Discrimination in France: The Case of Turkish and Arabic Teaching Elisabeth Regnault

Abstract  The chapter argues that inclusive education, whose aim is to bring marginalized children, back to the center of school systems, needs to consider discrimination, as experienced by Turkish and Arabic migrants. Inclusive education promotes assimiliation and integration of migrants and their children because inclusion involves the whole society and not just migrants. Discrimination can occur involuntarily but is influenced by social representations and prejudices concerning specific groups in society. France has difficulties transcending its tradition of assimilation. The state is very prescriptive and does not allow dialogue between pupils with different values who speak different languages, in order to find common values in the French intercultural society. Turkish and Arabic languages need to be accepeted and recognized as international languages, in order to bring excluded children, on the margins of the schools system back to the center. Keywords  Assimiliation · Discrimination · Equality · Excluded children · Identity · Prejudice · Schooling in France · Social justice · Values

5.1  Introduction Inclusive education is a new concept in French society. Both society and the school must include every child with special needs and fight against discrimination (Bouquet, 2015). Inclusive education aims to bring excluded children on the periphery back to the center of the school system (Van Zanten, 2015). This concept helps to explain the process of assimiliation and integration for migrants and their children, because inclusion involves the whole society and not just the migrants. Discrimination, on the other hand, implies a volontary act which leads to inequity.

E. Regnault (*) LISEC, University of Strasbourg, Strasbourg, France e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_5

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Discrimination can exist involuntarilybut is influenced by social representations and the prejudices concerning specific groups in society (Lochak, 2004). There is a link between inclusive education and intercultural education, since inclusion combats any type of discrimination. Allemann-Ghionda (2009) uses the idea of moving from intercultural education to the inclusion of diversity. Intercultural education is not only related to something taught in schools, but also involves intercultural dialogue and communication between persons from diverse cultures (Regnault, 2006). In 2000, the Council of Europe considered that the intercultural is not only in the framework of elementary and secondary schools but also in tertiary education, in NGO’s and in society as a dimension of non-formal and informal education (Allemann-Ghionda, 2009). In 2005, the European commission linked intercultural education with citizenship education and the human rights. In 2017, the European Council published a report concerning all forms of discrimination in schools (handicap, xenophobia, etc), including intercultural education. Within the concept of intercultural, there is “Inter” and “Culture”. “Inter” means interactions and “Culture”, in the anthropological area, concerns specific norms and values from one group to another but everyone interprets their parental culture throughout their life (Clanet, 1990). The challenges, in an intercultural society, are not the same as in a multicultural society which means juxtaposition of cultures. An intercultural society implies interactions, therefore modifications and also maintainance of the culture of each group in contact. Integration is not assimilation, a French tradition, which asks migrants to lose their cultural connections. This results in a confrontation of values (Perotti, 1986). Intercultural does not consist of enclosingthe cultural characteristics of the otherbut considers him as a unique, equal and universal subject (Abdallah-Pretceille, 2005). In order to illustrate this problematic situation in French society, we will analyse the place of the mother tongues. The concepts emphasized are the following: additive and subtractive bilingualism and the awakening to languages.

5.2  French Values Based on the Philosophy of Universalism The universalist philosophy implies equity between migrants and natives based upon similarities. The migrant must put aside his cultural, linguistic and religious characteristics in public institutions. He can obtain nationality of the host society and, therefore, access all the civil rights (Jus Soli) (Todd, 1994). This is a tradition in France. France has strong republican principles, dating from the French Revolution: citizens must become autonomous by distancing themselves from the groups they belong to (religious, cultural and familial) and common values have to transcend the differences (Regnault, 2006). The intent is to free the child from indoctrination and to allow him the freedom to think for himself. The differentialist philosophy implies equity between migrants and natives based upon differences. The migrant does not have to renounce cultural, linguistic and religious characteristics in public institutions. He cannot obtain nationality of the

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host society but can get some civil local rights (Jus Sanguinis) (Todd, 1994). The United Kingdom and Finland belong to this tradition.

5.2.1  Secularism in France Secularism is not seen as an attitude against religious beliefs but is opposed to certain historical religious claims (Regnault & Vieille-Grosjean, 2015). In the French Constitution of 1958, the French people is considered as one and only. Article 2 of the December, 9th, 1905 law, separating the Catholic church and the state, specifies that the Republic does not recognize any particular religion except in Alsace-­ Moselle where some religions are taught in schools (Catholicism, Protestantism and Judaism)1 with the possibility of exemption on grounds of freedom of conscience. Children can follow religious lessons in separate groups, catholic or protestant, or ethics lessons given by the teacher to whole class. The religious phenomenon is taught to the whole class since 1996 in lower secondary school and, since 2005, in elementary school. Priests, pastors and rabbis are civil servants. The only catholic and protestant faculties are located in Strasbourg, France. In 2015, a Bachelor in History of Muslim civilisations was created. Because of this, Strasbourg has many interreligious exchanges. Secularism is based on three pillars: neutrality in state institutions, equity between religious beliefs and freedom to practise them (Baubérot, 2011). Since March 2004, secularism is more restricted because it is forbidden to wear religious symbols and clothes in schools but not at university. This act aims to reinforce a sense of the Republic in schools. Instruction is national and concerns only people and not cultural or religious communities which are not recognized in French law. The school model, in France, shows a recurring tendency to resist recognition of cultural diversity for fear of losing social cohesion (Meunier, 2013).

5.2.2  C  urrent Law Reinforcing Respect for Republican Principles There was a statute proposed called ‘Fight against religious separatism’, but it stigmatized Muslims. Therefore, the name was changed. The aim is to fight against communitarianism, religious separatism and islamist terrorism. Some journalists, on TV and radio, regularly used the original name of the project. Currently some politicans propose that mothers wearing hijab will not be allowed to accompany their child’s class on a school trip. Nethertheless, I consider that mothers as parents, are just partners of the school and do not need to be be neutral with their clothes as is the case for teachers and students.  This religion is more commonly taught in private Jewish schools.

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On December, 9th, 2020, Emmanuel Macron, the French President, said: I’m not confortable with the word ‘Community’, because communities can constitute a form of identity in addition to belonging to the Republic and can enrich the Republic with cultures. The problem arises when these communities become, not additions, but subtractions from republican laws and values (https://www.economist.com/europe/2020/12/09/ emmanuel-macron-unveils-a-controversial-bill-to-fight-islamism).

This law was adopted, on the first reading, by the National Assembly on February, 17th, 2021 and by the Senate on April, 12th, 2021. The Senate has added ‘Fight against religious separatism’. The text must be definitively adopted soon by the National Assembly on second reading. The wording of the statute included below reinforces state control: • Respect for equity, neutrality and secularism by employees who participate in a public service mission. • State control of sport federations with a republican commitment contract. • Signature of a republican commitment contract for associations that get subventions from public institutions. • It is compulsary to declare foreign subventions for religious organisations. • Expansion of the national file of perpetrators of terrorism and to those who advocate and provoke terrorist acts. • No residence permit will be given to a man who is polygamous. Automatic renewal of residence permit for women victims of polygamy. Ban on virginity certificates. Strengthening the fight against forced or fraudulent marriages. Concerning teacher training and schools, the statute included: • A specific secularism training in the INSPE (Faculty of Lifelong Education). • Compulsary instruction from 3 years of age in preschool. (Earlier it started at 6 years of age) Home schooling is possible if the child is ill. • Diffusion of a charter of values and republican principles in private schools. The Senate has adopted amendments tending to move towards a secularism that is more exclusionary than open. The words ‘forbidden’ and ‘prohibition’ are still present and it will be not easy for anybody to have a critical opinion of secularism: • Wearing a hijab and other ostentatious signs is forbidden during school trips. The bikini is also forbidden in swimming pools and in public bathing areas. Minors cannot wear ostentatious signs outdoors. All signs showing the inferiority of women compared to men are forbidden. • Prohibiting openly communitarian electoral lists and campaigns. • Each year, on 9th of December, a secularism day is going to be established as a symbol of the separation between the state and the Catholic church. • When celebrating weddings, allowing mayors to regulate the display of flags other than those of the French Republic or the European Union. • Hindering the issue and the renewal of residence permits for individuals who have expressed rejection of the principles of the Republic.

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• Health professionals, who are asked to provide a certificate of virginity for patients, must give the patient written and documented information relating to the prohibition of this practice. They can inform her of organizations specializing in the defense of women's rights that she can contact. • Strengthening sanctions in case of political meetings and voting operations used for the practise of religious beliefs. The consequences are a penalty of ineligibility. • Preventing those convicted of felony or terrorist behaviours from working with minors in early childhood establishments and collective childcare centers. • Asking families who practice home schooling to provide education mainly in French to be consistent with the principles of the Republic. • Include in the territorial education project the promotion of the secularism charter and the principle of equality between men and women. • To consider that the religious phenomenon’ is not taught for itself but clarified in the context of disciplinary lessons with the addition of the word ‘multidisciplinary’. • Propose to teachers training related to dialogue with parents. • Prohibit the wearing of religious symbols during participation in sports events and competitions organized by sports federations and affiliated associations. • Prohibition of all political, religious or racial propaganda in sport federations. For Baubérot,2 who is a specialist in the history of secularism, France created the separatism it criticizes by building a concentration of misery and hardship. Teaching of Languages and Cultures of Origin (ELCO) is given as an example. It consists of offering language courses to children who speak a home language (other than French). Since 1977, those courses have been taught by staff appointed and paid by foreign governments without any control over the content of their teaching. This is contrary to the republican logic which sets itself the objective of offering languages to every one by teachers appointed by the state. Baubérot (2020) considers that France is currently strengthening its tradition of assimilationism as an overly complete unilateral integration. He writes: It would be relevant to remember what Emile Durkheim wrote about integration : it is necessary to make society and avoid anomie but unilateral integration turns society against itself by transforming its citizens, and its groupings into passive members, atrophying and rigidifying the social (Baubérot, 2020)

5.3  Inclusive Education Historically, the international texts dealing with inclusive Education will have an impact on French laws and therefore representations concerning disability, will change:  Baubérot, J. (2020) Lettre à Macron. Nouvel observateur, 28 novembre 2020.

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• 1994: UNESCO Salamanca Declaration concerning the principles, the politics and the practices for children with special needs. • 2006: ONU Convention concerning the rights for children with disabilities and the right to education without discrimination. • 2017: The Council of Europe links the fight against school segregation to the concept of inclusion. The pertinent French laws are the following: • The law of 1909: a first idea is to associate re-education with unsuitability by creating separated schools and improvement classes for the deficient and unsuitable children. • The law of 1975 has an integration objective with compulsory schooling and education for all students. • The orientation law of 1989 on education reaffirms the principle of compulsory schooling for disabled children and the priority of school integration. • The law of 1990 protects people against discrimination on account of their health or disability. • The law of 2005 has an inclusion objective for equal rights and opportunities, participation and citizenship of people with disabilities which affirms the right of every student with a disability to access education. • The School Refoundation law of 2013 recognizes that all children share the same ability to learn and improve and ensures the inclusion of all children without distinction. • The School of Trust law of 2019 aims to develop extensive inclusive education by: –– –– –– ––

Establishing a regional inclusive school service. Organizing local inclusive centers. Better welcoming parents. Recognizing the work of teachers and support them with an accessible training offer. –– Better integrating the Supporters of Students with Disabilities (AESH) to the educational community. –– Simplifying procedures for everyone. –– Better following inclusive courses and evaluating the quality of the actions. Disability is associated with a particular need, that is to say, a difference rather than a deficiency or uncapacity. Everyone has the right to education without discrimination within the framework of a social model of disability which placesthe responsibility on the school system and not on the students’ lack of adaptation to this system (Institut Français en Education-IFE, 2019). National education concerns are starting to be linked to the emergence of issues related to special educational needs and inclusion (Rigoni, 2017). The concept of special educational needs has been developed in England, in the years 1975–1978, by Seamus Hegarty and Mary Warnock before being adopted in the USA. In less than 20 years, this has been established in a number of countries as the basis for the

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education of all pupils with permanent or temporary difficulties. This development is accompanied by a paradigm shift from insertion or integration towards inclusion. Promoted by supranational institutions during the 1990s, inclusion results from a movement mobilizing associative actors and researchers around a social model refusing the exclusion of people in favor of accepting their differences. This movement is thus opposed to any form of schooling in a specialized environment or in a segregated system likely to lock individuals into a stigmatizing and vulnerable sector logic. Therefore, inclusion relates to the terms of social justice and equal opportunities because the school must adapt to children with special needs and not the contrary (Dubet, 2004, 2010).

5.4  Discrimination In the name of the fight against discrimination and for the promotion of equality, it is possible to contact a mediator of the French Republic, the defender of rights and freedoms. The law recognizes 23 criteria of discrimination: • Criteria issued from international or European texts: age; sex; origin; affiliation or no affiliation, true or supposed, to an ethnic group, a nation or a so-called race; pregnancy; health; disabilty; genetic charasteristics; sexual orientation; gender identity; political opinions; union activities; philosophical opinions; beliefs or no beliefs, true or supposed, to a specific religion. For example, concerning the genetic charasteristics: ‘They wanted to submit me to genetic tests as part of the medical examination prior to my hiring’. • Criteria governed only by French legislation: family circumstances; physical appearance; name; customs; place of residence; lost of autonomy; particular vulnerability resulting from the economic situation; and ability to express oneself in a language other than French. In France, North-Africans from the Maghreb and sub-Saharan Africans, tend to be victims of discrimination, due to a history linked to slavery and colonization. In particular, Algeria was a French department and became independent in 1962 after a very violent war. On the other hand, Chinese do not share a colonial history with France but the quick development of China is shaking up the cards at a global level. Some French people are afraid of being dominated by the Chinese. The two first groups are discriminated against on the following criteria: origin; affiliation or no affiliation, true or supposed, to an ethnic group, a nation or a so-­ called race; beliefs or no beliefs, true or supposed, to a specific religion; physical appearance; name and ability to express oneself in a language other than French. For Chinese, the criteria are: origin; affiliation or no affiliation, true or supposed, to an ethnic group, a nation or a so-called race and physical appearance. The aspect of religion doesn’t concern Chinese. The Arabic and Turkish languages, which interest us, are spoken as mother tongues by French people with foreign origin or by foreigners of the Muslims faith.

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Turkey does not share a colonial history with France but the Turkish people are generally Muslims. The process of social domination explains the existence of these representations. The working class, dominated by the upper-class, is dominated by immigrants. Just as the upper-class offers an image of the proletarian, the existence of a colonizer imposes an image of the colonized which became, after independence, an immigrant living in the former colonizing country. Racism, xenophobia and rejection of the other take on a biological and not a sociological dimension (Guillaumin, 1972). People are still considered as foreigners even though they were born in France. Memmi (2013) painted the portrait of the colonizer and the colonized in Algeria. He defines paternalism as a positive and benevolent attitude towards the colonized but bridles when he claims his rights. Fanon (2002), in ‘The Damned of the Earth’, also analyzes the trauma of the colonized. Colonial memory is still present in France. The indigenous people become the indigent, or the power person in France (Stora, 2004). Today, in French society there is also the problem of the place of Islam, a religion that questions secularism and religious neutrality advocated by the state. The question of social class is central because North and Sub-Saharian Africans generally live in suburban areas. The racist theory of the ‘Great Replacement’ by Renaud Camus is currently spreading. Fears hatch in a fantasized threat of a reversal between majority and minority. Some people say ‘We are no longer at home’.

5.5  Interculturality 5.5.1  Culture in the Anthropological Sense Culture refers to norms and values that characterize a society and differentiate it from others. The individual will reinterpret it throughout his life and in contact with others will transform himself (Clanet, 1990). Culture is now described as a process and not as a precondition. Researchers focus on how individuals produce meaning from their initiatives, actions, reactions, choices, relationships with others and conscious or unconscious rejections (Mauviel, 2011). The culture is a set of figurative schemes which guides the behavior of people and constitutes a reading grid on the basis of which they interpret the behavior of others (Blanchet, 2004). The intimate, social and public distances between individuals, under the concept ‘Proxemia’ (Hall, 1959, 1966) also characterize culture. In Japan, people do not touch each other in a public space. In Cameroon, touching and hugging are important as well as in Brazil and Mexico (Abrazos).3

 Abrazos means hugging.

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5.5.2  Acculturation Strategies Berry and Sam (1997) proposed four acculturation strategies concerning migrants: • The strategy of assimilation: he abandons his original identity and culture and seeks to establish relations with the host society. As a result he adopts the culture of the host society to the detriment of his original culture. • The separation strategy: he seeks to maintain his original identity and culture while avoiding interactions or relations with the host society and the dominant culture. • The integration strategy: he wants to maintain his original culture and identityand then establishes contacts with the host society while maintaining his original culture. • The strategy of marginalization pushes him to lose his cultural identity because of the politics of the host society without the right to participate in the functioning of institutions and in social life. Integration is different from assimilation, a French tradition, and indicates the ability from a position of equality to confront and exchange models of behavior both on the part of the migrant and of the host society. Interdependence, confrontation, exchange, the position of equality characterize this socio-cultural model of integration (Perotti, 1986). Pluralist integration is possible under three conditions and also concerns people from the host society (Azzam, 2005): • The need for common languages, essential for communication, is necessary to safeguard the physical and psychological interests of the individuals and groups involved. • The right to cultural difference provided that this does not lead to ethnocentrism or cultural hierarchy. • Reciprocity of exchanges between cultural sub-groups. Interculturation goes in the same direction and means that every individual, in an intercultural society, experiences internal tensions due to contact with the others (Guerraoui, 2009, 2016). The subject builds his identity by assimilating, differentiating himself, synthesizing and experiencing tensions. It achieves a balance between enculturation and acculturation. Clanet (1990) proposes a double movement made of ambivalence, openness, closure, compromise. ‘Inter’ means interrelation but also prohibition and separation. Interculturation refers as well to the psychic integration (Krewer & Jahoda, 1993) of a plurality of cultural references subjectivized by manipulation, reinterpretation, which will combine, interact with one another and therefore could not be reducible to any of the cultural poles present. For interculturation to be possible, it is necessary to create meeting places, to confront and exchange and recognize equality between individuals (Denoux, 1994). Tensions sometimes arise from the fear of domination by the other group whose values and behavior are different. But, for Levinas (1983):

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5.5.3  Identity Contruction and Otherness The individual builds himself through his personal, social and cultural identity (Guerraoui, 2008). There are three types of identity: personal, social and cultural. They are in close interaction and three components of the same person. Indeed, personal and social identity only take on the meaning through cultural identity insofar as this refers to collective representations and practices that the person has integrated since his childhood. Otherness means the experience with the other person. Levinas (1982) places the other person first. She is the center of everything. France has developed an occidental philosophy, with the idea of totality: to integrate, unify, totalize, globalize, etc. As if the mind could be appeased and find satisfaction only through synthesis, unity and identity. To this significant totality, Levinas opposes the infinite, the other in its irreducible otherness (Antenat, 2003).

5.5.4  Interculturalty in France This is a model adapted to French society because it does not juxtapose cultures but rather corresponds to the multiculturality that separates communities from one another. Interculturality means both maintaining and transforming the cultures of people through interaction. Assimilationism, in France, favors the common before the different and the intercultural focuses on the meeting and its effects. However, the integration process is often one-sided because it requires migrants to transform while pluralist integration, a pillar of interculturality, means a transformation of the natives as well. Cultures in contact end up mixing to achieve a new synthesis. Interculturality is a vision of society that corresponds to French society on condition that there is an equal treatment between natives and migrants. This model makes it possible to go beyond the assimilation and acculturation which are a process of internalization of dominant norms. It develops asymmetric relations between the dominant and the dominated. This situation can generate discrimination and tensions.

5.6  The Place of Mother Tongues in France The mother tongue is a structuring component because it is learned from an early age in the family. It is often spoken spontaneously with great affection. National and foreign languages can be added. The foreign language is from another country. The

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national language is that which a nation speaks. What are the differences between mother tongue, first language, native language, language of origin linked to immigration, family language which goes beyond the idea of mother tongue linked to mother, language of use, national language, official language, foreign language and repertoire of languages? The mother tongue is the language of the country of birth or of the mother. The Larousse dictionary (2021) defines the mother tongue as the first language learned in contact with the immediate family environment. Skutnabb-Kangas (2008), cited in Rezzoug et al. (2020), described four registers characterizing the mother tongue: The origin (language that one learns first); the identification (internal, the language one identifies with or external, the language with which one is identified by others as a native speaker); competence (language that one knows best); the function (the most used language) (Skutnabb-Kangas, 2008, pp. 86–88).

The language of origin is linked to immigration and thus perceived by people in the host country. For the Council of Europe, concerning migrants, the language of origin is defined as the language of people or groups who have to settle in other states. This denomination is however external for the speakers concerned, it is their mother tongue where a whole culture and behaviors are transmitted. They themselves do not call it language of origin. The repertoire of languages consists of all the languages from the family and the school, friendly and professional environment. It can change throughout life depending on the situations. There is a Mother Tongue Day proclaimed by UNESCO on February 21, 1999 to recall the importance of multilingualism and plurilingualism in societies. Multilingualism means the presence of several languages in a given society and plurilingualism, the presence of several languages inside the same person.4 In France, within the framework of the cultural and political pillar of secularism, what is the place of foreign languages, mother tongues compared to the official national language, the language of the Republic? French is the only national language above all the others. Foreign languages are recognized by the institutions and taught to learners in schools and universities such as English, German, Spanish, Italian, Portuguese, Chinese, and Japanese. Some mother tongues linked to migrations have become foreign languages open to all. This is the case of Italian, Portuguese and Spanish. They were taught only to

4  Thank you to all the team of the French association Familangues, in Strasbourg, who produced a video to celebrate Mothertongue day on February, 21th, 2021. Iam a member of the executive committee. Familangues is an association whose goal is to enhance multilingualism at home, at school as well as in one’s everyday life, through:

–– Language awareness through multilingual workshops with kids (3–15 years old) –– Support for parents in passing on their mother tongue(s): providing answers and multilingual media in order to read, speak and share their mother-tongue with their kids. –– Providing a common ground between families and educational structures through informal collaborative sessions between parents, socio-cultural agents as well as linguistics professors and language professionals, called “Café discussion”.

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children who spoke this language at home, especially from family reunification in 1976. It allowed women and children to join their fathers. The teaching device was called ELCO (Teaching Languages and Cultures of Origin). In 2013, this device was transformed into EILE (International Teaching of Foreign Languages). It is now open to all children. In Alsace, it mainly concerns Arabic and Turkish languages that were taught only to children who spoke it at home. Does this new device allow these mother tongues to obtain an equal status with other foreign languages? The recognition of these languages can also be linked to social representations concerning those groups that carry these languages.

5.6.1  Additive and Subtractive Bilingualism For the Council of Europe, each child speaking two languages at home is considered as a bilingual person. In France, the official bilingualism concerns the languages taught at school : Franco-German in Alsace-Moselle close to the German border, Franco-English, Franco-Spanish, and Franco-Italian. Family bilingualism, concerning these languages, is highly valued by teachers. Other languages, practiced by migrant families, and less recognized, are perceived as more problematic by the institution or teachers. They suggest that the French should be learned first before the mother tongue. There is also a question of social class and a confusion between language and religion courses. Indeed, people speaking Arabic or Turkish often come from working classes and the lack of recognition of these two languages often leads those persons to follow language courses in mosques. The consequence is also a self-censorship. Hamers and Blanc (1983) have developed a framework concerning the valorisation of the mother tongue. There are two different types of bilingualism: • Additive bilingualism means good skills also in the mother tongue and in the national language because the two languages are valorised in the society and in the school. • Subtractive bilingualism means bad skills also in the mother tongue and in the national language because the mother tongue is not valorised in the society and in the school as the national language is. In France, migrant children are considered as “allophones” by professionals (Camara, 2015). This person has a mother tongue different from the environment where she lives. As regards to the bilingualism of these children, it is generally early, consecutive and can be defined in two forms: active or passive. When languages are used in verbal communication, it is an active bilingualism and when the child lives in a context of bilingualism without necessarily using these languages him or herself, it is called passive bilingualism (Camara, 2015): In France, only around 10% of migrant children, aged six to eight, are additive bilingual. They think, speak, write, dream in one or more of their languages (Moro, 2012, p. 104, in Camara, 2015).

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A child may act as an additive bilingual at age three and the trend reverses around age seven. In this case, bilingualism is in favor of French rather than the mother tongue. In fact, the influence of the school is very important because the child has a perfect knowledge of his second language but he cannot speak his mother tongue. He only has access to some of its registers generally those of the oral and emotional (Moro, 2012; in Camara, 2015). Thus, it is a subtractive bilingualism. This is the case of 40% of the migrants children. The use of French to the detriment of the mother tongue can also be explained by the process of acculturation and the family language depreciation in the society and in the school. According to Brinbaum and Kieffer (2009) in Rezzoug and Moro (2011), a longitudinal analysis of the educational paths of the migrant children shows that they are among the pupils who are at the greatest risk of educational difficulties and failure, early exit from the school system or guidance to less prestigious sectors of the education system. Consequently, the French republican school fails to guarantee all children the same opportunities. These children can have difficulties in the construction of their identity and self-esteem.

5.6.2  Awakening to Languages It means awakening all children, in the same class, to the different languages spoken in a class that allows intercultural recognition. This system is based on the principle of equality between languages. The school could take advantage of teachers’ and students’ linguistic richness without taking up time on the rest of the program. For example, a game can be used in the history or geography curriculum relating to the parents countries of origin. Translation into French, in the form of bilingualism, is also good. Parents can be asked to come to school and teach their mother tongue. The ‘Awakening to languages’ policy approach aims at exposing children to language and cultural diversity as well as promoting positive attitudes towards different languages and cultures amongst children. It encourages the development of a plurilingual competence that is richer than a communicative competence because it is more complex and, at the same time, more flexible (Coelho et  al., 2018). As Cummins (2001), explains that there is a need to accept ‘linguistic and cultural differences of children’: The linguistic and intellectual capital of our society can increase enormously if we stop seeing the linguistic and cultural differences of children as a problem to be solved, and, instead, we can open our eyes to the intellectual and cultural resources that these children bring with them in our schools and in our society (Cummins, 2001, p. 5).

According to Candelier (2003), awakening to languages is not learning a particular language. It is an approach to languages, most often in primary school including nursery school. Linguistic diversity is treated as an educational activity. It is not just a question of sensibilisation to languages because the knowledge, attitudes and

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skills, targeted by the activities, are defined in correspondence with the needs and capacities of the pupils. These objectives and expectations are the following: • To develop students’ interest and openness to diversity including their own diversity in multilingual classes in order to enhance the linguistic and cultural competences and identities of each person. • To develop pupils’ ability to observe and analyze languages and therefore promote their ability to learn and master them better including for the language of the school. • To foster the desire of students to learn diverse languages.

5.6.3  T  he Example of a New Inclusive Device: The EILE (International Teaching of Foreign Languages) From 1977 to 2013, after family reunification, the teaching of the mother tongue was part of compensatory pedagogy in or outside school with foreign teachers in relation with embassies: the ELCO device. Since 2013, the migrants’ mother tongues, such as Turkish and Arabic, have been valued as foreign languages for all children. ELCO became EILE within the Common European language framework (levels A1, A2, B1, B2, C1, C2). From 2013 to 2020, ELCO continues in parallel with EILE.  This perspective is part of the Republican principles concerning this desire to include and not to separate children between communities. Is it inclusive education in the case of this device? Yes, because the aim is not to separate them by languages. Since 1977, the public has changed. The goal, at this period, was to teach the migrants children their mother tongue because the government of President Giscard d'Estaing believed that the migrants would return to their native countries. A return bonus has been offered. However, this first generation settled in and had children who are already parents. They all became French at birth before 1994 and, at 13 years old, since 1997. The criticisms against the ELCO led to the EILE. Bertucci and Corblin (2007, p. 1) discussed the ELCO status problem in these terms: We will immediately raise the ambiguity of the term origin which, according to Le Petit Robert (2006), refers to extraction, to the strain, to the native country and also to the social environment. However, these connotations of the word origin produce a pejorative impression of minorization which a problem of status (Bertucci & Corblin, 2007, p. 1).

Deprez (2003, p.  43) underlines that ‘the name languages of origin refers to the child's family past and underlines its symbolic identity value by referring in particular to its roots. But a language does not live on its past : it is above all functional and, as such, strongly determined in its forms and uses by its communicational effectiveness’. According to Bertucci (2007a, b, p. 33): ‘The effectiveness of ELCO has also been questioned through criticisms relating to its isolation, the teaching content, teacher training and their more or less satisfactory skills in French. These criticisms

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came from various forums and were often mentioned quite widely in the media. They mainly concern the teaching of Arabic’. Other criticisms emerged in 2013: ELCO encourages communitarianism among the migrants’ children (The High Council for Integration-HCI, 2013). However, today, this device has not really changed as if these courses are still be addressed to children linked to their parent’s native country. Others children, who do not speak Arabic or Turkish, do not participate in these courses. The teachers still come from these countries as well as the books. The EILE device makes it possible to achieve inclusive education by valuing both the similarities and the differences between students. However, this is insufficient for the following reasons: • EILE is not integrated into school timetables but into extracurricular activities. EILE is drowned in the large number of after-school offers (Dervisoglu, 2017-thesis on the Turkish language in the EILE; Benhammou, thesis in progress on Arabic language teaching through this program). • There is a lack of communication by the school concerning this system: few children, who do not speak these two languages at home, participate in these courses (10 children, in Bas-Rhin and Haut-Rhin, have chosen EILE in Turkish and 65 Arabic-Moroccan, Algerian or Tunisian). • The teachers come from the native countries and are not trained to the heterogeneity of pupils from different class and language levels. The ideal would be to train bilingual French teachers through the National education program. • A change in the content of textbooks is not yet seen as possible. Content change is necessary because the public has changed since 1977. It is important to integrate Turkey, France, Morocco, Algeria and Tunisia, their cultures, their languages and their historical and current relations into the teaching content. Why has it taken so long to change this program from 1977 to 2013? One of the reasons is diplomatic: when the French Ministry of Education changed ELCO to Turkish EILE for example and met with people from the Turkish Ministry of Education, the French person expressed the idea that the children, who speak Turkish, are French and the Turkish person that they are Turkish, hoping for their return, as adults, to Turkey.5

5.7  Additive Bilingualism and Plurilingualism in Cameroun6 Cameroon has successfully implemented the teaching of mother tongues in 43 multilingual schools. The use of Ewondo, Duala, Basa'a, Ghomala and Fufulde in education, in addition to the two official languages of French and English, is positive

 Comments from a Turkish ELCO inspector in Strasbourg in 2017.  Journal « Formation » from Ecofin Agency, 16 mars 2021.

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according to the Ministry of Basic Education because the children, who are proficient in reading and writing in their mother tongues, learn French and English better. The government can therefore extend language learning in nearly half of more than 250 mother tongues spoken in Cameroon : ‘In 2020, the Development Plan for Plurilingual/Multilingual Education in Primary School in Cameroon made a list of around twenty languages that can be used in education both as a subject and as language teaching’, writes Fatime Bilamo. Moreover, in recent years, mother tongues have been introduced into secondary education and universities. In 2017, the University of Yaoundé I graduated its first students inside the Cameroonian languages and cultures sector under the direction of Professor Alex Belibi.

5.8  Conclusion French intercultural society currently is attempting to offer inclusive education in order to fight against discrimination and allow better self-esteem among children and thus avoid self-censorship. Change can only take place through a modification of social representations and a different relationship to otherness (Ferréol & Jucquois, 2012). However, France has difficulties going beyond its tradition of assimilation. The state is very prescriptive and does not allow dialogue between pupils with different values in order to find common values in a French intercultural society. Dialogue also avoids resistance and a strong claim to identity. Finally, Turkish and Arabic languages must be recognized as international languages in order to bring excluded children, on the margins of the school system, back to the center.

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Bertucci, M. M. (2007a). L’enseignement des langues et cultures d’origine: incertitudes de statut et ambigüité des missions. In Le français aujourd’hui (Vol. 158, pp. 28–38). Bertucci, M.M. (2007b). Enseignement du français et plurilinguisme. In Le français aujourd’hui, 1/2007 (Vol. 156, pp. 49–56). Bertucci, M-M., & Corblin, C. (Eds.). (2007). Enseigner les langues d’origine. In Le Français aujourd’hui 158. A. Colin. Blanchet, P. (2004). L’approche interculturelle en didactique du FLE. Université Rennes 2. Bouquet, B. (2015). L’inclusion: approche socio-sémantique. Vie sociale, 11(3), 15–25. Brinbaum, Y., & Kieffer, A. (2009). Trajectories of immigrants’ children in secondary education in France: Differentiation and polarization. Retrieved from https://www.cairn-int.info/articleE_POPU_903_0561--trajectories-of-immigrants-children-ins.htm Camara, H. (2015). Pourquoi faut-il défendre le bilinguisme des enfants de migrants ? L’exemple du bilinguisme soninké-français. In Le Carnet PSY (Vol. 188, pp. 31–36). Éditions Cazaubon. 2015/3. Candelier, M. (2003). Evlang – l’éveil aux langues à l’école primaire – Bilan d’une innovation européenne. De Boek – Duculot. Clanet, C. (1990). L‘interculturel – Introduction aux approches interculturelles en éducation et en sciences humaines. Toulouse, Presses Universitaires du Mirail. Coelho, D., Andrade, A.-I., & Portugal, G. (2018). The Awakening to Languages approach at preschool: developing children’s communicative competence. In Language awareness (pp. 197–220). Taylor & Francis. Cummins, J. (2001). La langue maternelle des enfants bilingues. Qu’est-ce qui est important dans leurs études? Sprogforum, 19, 16–20. Denoux, P. (1994). Pour une nouvelle définition de l’interculturation. In J. Blomart & B. Krewer (Eds.), Perspectives de l’interculturel (pp. 67–81). l’Harmattan. Deprez, C. (2003). Évolution du bilinguisme familial en France. Le français aujourd’hui 4/ 2003 (Vol. 143, pp. 35–43). Dervisoglu Kafka, G. (2017). L’enseignement de la langue et culture d’origine turque en Alsace: quel nouveau dispositif, quel nouveau public?. Université de Strasbourg. Sous la direction d’Elisabeth Regnault. Dubet, F. (2004). L’école des chances. Seuil. Dubet, F. (2010). Les places et les chances. Seuil. Fanon, F. (2002) Les damnés de la terre. la Découverte. Première édition en 1961. Maspéro. Ferréol, G., & Jucquois, G. (2012). Dictionnaire de l’altérité et des relations interculturelles. Armand Colin. Guerraoui, Z. (2008). De la socialisation à l’identité religieuse. In N. Roussiau (Ed.), Psychologie sociale des religions (pp. 1–16). Presses universitaires de Rennes. Guerraoui, Z. (2009). De l’acculturation à l’interculturation: réflexions épistémologiques. L’Autre, 10(2), 195–200. Guerraoui, Z. (2016). L’interculturation: pour une autre approche des contacts de cultures. In E. Regnault & E. Costa-Fernandez (Eds.), L'interculturel aujourd’hui. Perspectives et enjeux (pp. 207–216). L’Harmattan, coll. Espaces interculturels. Guillaumin, C. (1972). L’idéologie raciste, génèse et langage actuel. Mouton. Hall, E. T. (1959). Le langage silencieux. Le Point. Hall, E. T. (1966). La dimension cachée. Le Point. Hamers, J., & Blanc, M. (1983). Bilingualité et Bilinguisme. Mardaga. Institut Français en éducation (IFE) Dossiers de. (2019). Apprendre (dans) l’école inclusive des accompagnements et des aides éventuellement nécessaires. 127, Janvier 2019. Krewer, B., & Jahoda, G. (1993). Psychologie et culture: vers une solution du ‘Babel’? International Journal of Psychology, 28(3), 367–375. Lévinas, E. (1982). Ethique et infini. Fayard. Levinas, É. (1983). Le temps et l’autre. Presses universitaires de France.

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Le Robert, P. (2006). In P. Le Robert, J. Rey-Debove & A. Rey (Eds.), Dictionnaire Alphabetique Et Analogique De La Langue Francaise (French Edition). LE Robert. Lochak, D. (2004). La notion de discrimination. Confluences méditerranée, 1(48), 13–23. Macron, E. (2020). Emmanuel Macron unveils a controversial bill to fight Islamism. Retrieved from https://www.economist.com/europe/2020/12/09/emmanuel-macron-unveils-a-controversialbill-to-fight-islamism Mauviel, G. (2011). L’histoire du concept de culture. Le destin d'un mot et d'une idée. l’Harmattan, collection Logiques sociales. Memmi, A. (2013). The colonizer and the colonized. Routledge. Première édition en 1957. Portait du colonisé, précédé du portait du colonisateur. Meunier, O. (2013). Un rapport difficile à la diversité dans l’école de la République. Approche sociohistorique du modèle français. Revue internationale d’éducation de Sèvres, L’école et la diversite des cultures, 63, 89–98. Moro, M.-R. (2012). Enfants de l’immigration, une chance pour l’école. Bayard. Perotti, A. (1986). Petit lexique (no. 142). Presses et immigrés en France. Regnault, E. (2006). Good practices in intercultural education in Europe. Education and Society, 24(1), 45–56. Regnault, E., & Vieille-Grosjean, H. (2015). Education reforms in France. International Journal of Education Reform (IJER), 24(1). Retrieved from https://go.gale.com/ps/i.do?id=GALE%7 CA427008382&sid=googleScholar&v=2.1&it=r&linkaccess=abs&issn=10567879&p=AON E&sw=w&userGroupName=anon%7E5e42d419 Rezzoug, D., & Moro, M.-R. (2011). Oser la transmission de la langue maternelle. La pensée sauvage, l’Autre, 12, 153–161. Rezzoug, D., Serre, G., Baubet, T., & Moro, M.-R. (2020). Langue maternelle en migration : les ingrédients d’un métissage harmonieux. Érès Enfances & Psy, 86, 42–52. Rigoni, I. (2017). Accueillir les élèves migrants : dispositifs et interactions à l’école publique en France. Alterstice – Revue Internationale de la Recherche Interculturelle, L’interculturel dans la Cité: actes à poser en contexte pluriethnique, 7(1), 1–13. SkuTnabb-Kangas, T. (2008). Language rights and bilingual education. In Encyclopedia of language and education (pp. 1578–1592). Springer. Stora, B. (2004). Histoire de l’Algérie coloniale 1830-1954. La Découverte. The High Council for Integration-HCI. (2013). Call for Muslim veil ban in French universities. Retrieved from https://www.thelocal.fr/20130805/report-calls-for-veil-ban-in-french-universities/ Todd, E. (1994). Le destin des migrants. Assimilation et ségrégation dans les démocraties occidentales. Editions du Seuil. Van Zanten, A. (2015). L’école de la périphérie. Scolarité et ségrégation en banlieue. PUF, coll. Quadrige. Elisabeth Regnault (University of Strasbourg) is Associate Professor in Educational Sciences and has an Habilitation in Comparative Education. She teaches in the INSPE (Long Life Education Faculty) in Strasbourg in France. Her fields of research are the Comparative Education and the Intercultural Education. She is involved in two laboratories (LISEC, and CRSEA-CUCDB, Dijon). She has published a book, in 2017, Comparative Education between Measure and Culture, between Global and Local (L’Harmattan).  

Chapter 6

The Colour of Maternal Mortality: State Discourse and the Struggle for Reproductive Justice Nazneen Khan

Abstract  While the USA has often taken the attitude of exceptionalism regarding the human rights of women and children, disproportionately high rates of maternal mortality and severe maternal morbidity amongst Black, American Indian, and some groups of Latinx individuals throughout the nation suggest otherwise. Responding to this public health crisis, numerous states have implemented maternal mortality review committees (MMRCs), most housed in state health departments, to identify the factors contributing to maternal death and to promote life-saving recommendations and interventions. Using discourse analysis, this chapter examines the state-generated digital content, deliverables, and research reports of fifty-one state MMRCs to explore and understand the extent to which MMRCs engage with maternal health as a reproductive justice, and therefore intersectional and human rights, issue. Chapter findings reveal that MMRCs generally do not frame maternal health as a human right; instead, maternal mortality is largely understood to be an individual outcome rooted in individual behaviours. In so doing, MMRC discourse overlooks social inequality as a root driver of maternal death. The implications of MMRCs adopting a reproductive justice approach, including the saving of mothers of colour and their newborns’ lives, are discussed. Keywords  Birth justice · Discourse analysis · Human rights · Maternal health · Maternal mortality · Motherhood · Public health crisis · Racism · Reproductive justice · Social justice

N. Khan (*) Sociology, Randolph-Macon College, Ashland, VA, USA e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_6

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6.1  The Maternal Mortality Crisis in the USA While the USA has often taken the attitude of exceptionalism regarding the human rights of women and children, disproportionately high rates of maternal mortality and severe maternal morbidity amongst Black, American Indian, and some groups of Latinx individuals throughout the nation suggest otherwise. The maternal mortality ratio in the United States exceeds that of every other high resource nation; it is one of only three nations across the globe in which the maternal mortality ratio is increasing, nearly doubling over the past three decades (Centers for Disease Control, 2019). While the U.S. reports 19 deaths per 100,000 live births, European ratios fall below 10, with many nations reporting under five deaths, and countries like Norway and Italy reporting only two maternal deaths per 100,000 live births (World Health Organization, 2019). In the U.S., the overall maternal mortality rate obscures that Black, Indigenous, and other women of color are significantly more likely to die from pregnancy-related causes than are White women. According to the Centers for Disease Control and Prevention (2020), Black (37.1 deaths per 100,000) and American Indian/Alaskan Native (AI/AN) women are three times more likely to die of pregnancy-related causes than are White (14.7 per 100,000) women, a disparity that grows even wider with age. In some cities, the disparity further widens, with Black maternal death rates up to 12 times higher than White women (Howell, 2018). Racial-ethnic inequities also vary across states; for example, Arizona reports 70.8 AI/AN maternal deaths per 100,000 live births compared to 22.4 for Hispanics and 17.4 for White women (Cabasag et al., 2019). The CDC (2020) acknowledges that at least 2/3 of the 700 maternal deaths each year in the U.S. are preventable. Responding to this public health crisis, numerous states have implemented maternal mortality review committees (MMRCs), most housed in state health departments, to identify the factors contributing to maternal death and to promote life-saving recommendations and interventions. MMRCs have generated a prolific body of state discourse about women of colour, their bodies, and their birthing experiences. This chapter examines these discourses to understand how maternal mortality is framed and presented to the public; it is concerned with the types of knowledge about women of color that are disseminated by these frames and with the extent to which maternal health is understood to be a human right.

6.2  Explaining the Maternal Health Crisis The biomedical and social sciences have produced a prolific body of research that investigates racial disparities in maternal death, much of which is focused on searching for causal factors, from preconception to postpartum, that lead to severe morbidity, birthing complications, and maternal mortality. This body of scholarship attributes racial disparities in maternal illness and death to multiple factors, ranging from patient-level to systems-level explanatory factors and mechanisms. While

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individual-level factors focus on the patient behaviors of pregnant and birthing individuals, societal-level factors tend to be concerned more broadly with the ways in which macro-level factors such as discrimination shape individual-level behaviors and outcomes. Reproductive justice critiques both models, offering an alternative, intersectional and human rights approach that focuses more broadly on institutionalized patterns of discrimination as a core driver of the maternal health crisis.

6.2.1  Individual-Level Factors It is customary practice to attribute racial disparities in maternal mortality to the presumed deficient bodies and failures of mothers of colour. Within this dominant narrative, higher rates of preconception chronic illness and higher rates of certain types of hemorrhage, preeclampsia and eclampsia, gestational diabetes, and hypertension are all identified as primary medical causes of maternal mortality (e.g., Callahan, 2012). Patient-level factors such as advanced maternal age, drug abuse, poor nutrition, lack of knowledge, and failure to seek early and regular prenatal care are attributed to be causes of mortality. In this model, solutions to the maternal health crisis include prenatal and postnatal patient education, invasive medical testing, and other measures designed to change the behaviors of pregnant, birthing, and postpartum individuals. Far from being a human right, this model understands maternal health as primarily achievable through individual actions such as healthy eating, exercise, and personal responsibility.

6.2.2  Societal-Level Factors Social scientists have critiqued this approach, instead focusing on how macro-level factors, including racism and class inequality, can lead to chronic illnesses that heighten the risk of maternal morbidity and mortality. Social and anthropological perspectives highlight that the chronic stress of living in racialized environments and interacting in racist institutions maps onto the bodies of women of colour. This work often builds upon Geronimus’ (1991) well-known weathering hypothesis, in which cumulative social and economic disadvantages are shown to accelerate aging leading to early deterioration of health in Black women. Evidence of weathering due to social inequality has also been shown to impact Mexican-origin women (especially those who are U.S. born) (Fishman, 2020; Wildsmith, 2002) and AI/AN women (Fishman, 2020). The low socioeconomic status of women of colour, which causes toxic stress, is argued to play a large role in the weathering process. In this framing of maternal mortality, the poor health of women of colour is still the primary cause of MMR, although deficient health is understood to be rooted in societal-­ level factors.

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Yet, studies demonstrate that disparities in the MMR persist even for high-status women of colour and for women of colour with advanced degrees (Petersen et al., 2019), suggesting that the causes of MMR extend beyond individual health factors alone. Reproductive justice (RJ) is an intersectional theoretical and methodological framework first mapped out in 1994 by an alliance of Black women, including the widely influential scholar and activist Loretta Ross. SisterSong, the multiracial coalition most closely associated with RJ asserts that “RJ exists because of human rights” (as quoted in Luna, 2020, p.  2). The framework demands that maternal health is a human right (Luna, 2020) and challenges the presumption that women of colour are to blame for pregnancy and birthing-related deaths. Thus, while health care delivery systems are often conceptualized as lifesaving in studies on maternal mortality, RJ studies expand the scope of analysis and suggest multiple factors contribute to maternal death, including health care delivery systems.

6.3  R  eproductive Justice: Toward a Human Rights Approach to Maternal Health Three core values guide reproductive justice—“the right to have a child,” “the right not to have a child,” and the right to safe and dignified parenting (Ross & Solinger, 2017, p. 65). Central to the reproductive justice framework is the assertion that all three core values are human rights. Within the RJ framework is the narrower focus on birth justice, which specifically emphasizes that pregnant individuals have a right to safe and dignified birth (Oparah, 2016). Situated within the RJ framework, birth justice advances the notion that maternal health is a fundamental human right that is impeded largely by obstetric racism. As Luna (2020) explains, this framing was adopted in part, to galvanize the reproductive justice movement, however, it did equally mobilize all the actors implicated in the maternal health care crisis.

6.3.1  Obstetric Racism Obstetric racism refers to the systemic racism that emerges specifically during medical encounters relating to women of colour’s reproductive health (Davis, 2019) and encapsulates health care provider (HCP) racism. It includes “critical lapses in diagnosis, being neglectful, dismissive, or disrespectful; causing pain; and engaging in medical abuse through coercion to perform procedures or performing procedures without consent” (Davis, 2019, p.  562). To understand the persistence of racial inequality in MMR, a growing body of birth justice scholarship examines how health care provider racism during prenatal, birth, and postnatal care operate as an additional social determinant of health (Bridges, 2011; Morton et al., 2018; Oparah & Bonaparte, 2016; Oparah, 2016).

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Given that many pregnant individuals gestate in chronically stressful environments, prenatal care providers must provide supportive environments for their patients. Contrarily, research demonstrates that pregnant individuals of colour enter what Colen (1995) terms a system of stratified reproduction in which they are condescended, assumed deviant, and provided with culturally inappropriate, substandard care. Systems of stratified reproduction exacerbate stressors that impact women’s reproduction (Valdez & Deomampo, 2019; Oparah et al., 2018). Indeed, in a literature review (Maina et al., 2018) on implicit bias amongst health care practitioners, 31 of 37 studies found racial bias. Paradies et al. (2014) also found evidence of HCP across 26 of 37 studies examined in their review of provider racism. Davis (2019) analyzes the birth stories of U.S.  Black women and finds that obstetric racism is woven throughout prenatal and postnatal medical encounters and that these racialized experiences link to stratified maternal outcomes. Obstetric racism increases women’s stress and discourages early and regular prenatal care. Bridges’ (2011) fieldwork in a public hospital in New York highlights how social workers and medical experts socially construct the behaviors that they expect to see in Black and Hispanic mothers who are Medicaid recipients. For example, she found that, constrained by bureaucratic government systems, social workers often purposely mis-record mothers’ eating behaviors as non-nutritious to receive the supplemental nutrition benefits (a.k.a. food stamps). Beyond this tracking of constructed maternal “bad” behavior, heightened surveillance of Medicaid recipients also means that prenatal behaviors are surveilled and scrutinized in ways that their affluent, White counterparts are not (Bridges, 2011). In the third wave of the Listening to Mothers survey, one in five Black and Hispanic women reported racial-ethnic discrimination in their maternal care encounters (Declercq et al., 2013). Similarly, Oparah et al. (2018) identified four practices that were commonly deployed by medical staff that contributed to strained and stressful relationships with providers. These included the refusal of HCPs to listen to women’s concerns and knowledge about their own bodies, the lack of respect for women’s boundaries, stereotyping, and the suppression of self-advocacy. Racial and ethnic inequalities in severe maternal morbidity (SMM) further highlight the role of provider racism. Leonard et al. (2019) found that SMM is higher amongst Black women and lowest in White women. These inequalities persist even after controlling for patient-level factors. Authors suggest that institutionalized racism, including within health care delivery systems, is likely implicated and that there is a “need for initiatives that specifically target maternal health inequalities” (p.  7). While some initiatives have curbed maternal mortality rates overall, race disparities remain substantial (Leonard et al., 2019, p. 35). Obstetric racism explains this remaining disparity, explaining why Black women die of pregnancy-related disorders that White women do not. In her foreword to Battling Over Birth (2018), sociologist Christine Morton shifts the discussion away from the pathological Black mother and toward the health care industry. She writes, “We need to know more about the training and attitudes of clinicians who care for [B]lack women during their pregnancies, how they interact with [B]lack women and their families, and

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how these factors affect outcomes” (2018, p. 5). Reproductive justice approaches to MMR consider this broader range of factors, assert that maternal health is a human right, and provide key theoretical concepts and analytic tools for exploring the extent to which reports and recommendations of MMRCs comprehensively acknowledge, address, and intervene in obstetric racism.

6.4  S  tudy Design & Background: The Development of MMRCs In 2020, The Centers for Disease Control and Prevention launched the “Hear Her” Campaign, urging individuals, families, and health care providers to listen when pregnant and postpartum women report symptoms of pregnancy-related complications. While the campaign takes a colorblind approach, they, along with The American College of Obstetricians and Gynecologists (ACOG), have encouraged all states to implement MMRCs and examine system failures as they impact maternal health. At both federal and state levels, several review committees have been formed to study maternal mortality and design initiatives to reverse trends in maternal mortality. MMRCs are tasked with investigating state-level maternal mortality rates, their causes, preventions, and developing implementable recommendations for averting future death. Many of these committees partner with ACOG through the broader national collaboration of organizations, the Alliance for Innovation on Maternal Health (AIM). AIM works through MMRCs to implement initiatives that intend to curb maternal death. Many committees are specifically dedicated to improving birth outcomes for Black, Indigenous, and mothers of color. While Metz (2018) shows that such committees can effectively collect data, assess the preventability of maternal death, and create recommendations for curbing maternal death, the extent to which these committees’ efforts translate into impactful practices that reduce maternal death is unclear—it is not apparent that the formation of such committees and initiatives has been effective. For example, in an early study of maternal mortality state-level committees (1938–1978), states with committees showed smaller declines in maternal mortality rates (Grimes & Cates, 1977). Further, in some states such as California, initiatives appear to reduce overall maternal death, yet racial disparities persist (Oparah et al., 2018). Because obstetric racism produces negative outcomes for obstetric patients, initiatives must interrupt stratified reproduction directly and address how health care providers and hospital policies operate as core drivers of maternal morbidity and mortality disparities. As birth justice research highlights, there is a significant need for initiatives that address deep-rooted maternal health inequalities. If maternal mortality committees and initiatives do not address racial inequality, their ability to curb maternal mortality inequality between White and Black pregnant and birthing individuals is limited. This research asks if MMRCs: 1) acknowledge or address

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racial inequality in their states, 2) acknowledge or address obstetric racism, and 3) advance recommendations specifically intervene in practices of obstetric racism and 4) assert that maternal health is a human right. The output of MMRCs constitutes a discursive formation surrounding maternal death that influences health care delivery systems and the practices of obstetric providers within these systems. This research involved creating a large database of MMRCs and their work in all 50 states and Washington, DC. The data were discursive—including legal documents, full committee reports, websites, public-facing deliverables, and info-sheets. I coded these documents in two waves, using the research questions as a framework of analysis. I examined each committee in-depth, noting its year of formation, whether it was formed by statute, the number of seats it included, and the stakeholders included in each committee. I examined and coded the reports and recommendations of MMRCs in every state and explored the extent to which they directly and comprehensively addressed racial inequality in maternal mortality. I specifically focused on obstetric racism and looked for recommendations that directly addressed how missed opportunities for diagnosis and treatment of maternal morbidity were shaped by race. All 50 U.S. states and Washington, DC have a maternal mortality review committee or are in the process of implementing a committee at the time of this research. Beyond this, states varied widely in noticeable ways—whether their committees were appointed by legislation, the amount of funding they receive, how often they meet and publish reports, their access to medical information, and their ability to oversee and implement actionable initiatives—were all points of differentiation. In the following section, I highlight thematic findings germane to the research questions, specifically addressing the extent to which MMR committees 1) view maternal health as a fundamental human right 2) acknowledge obstetric racism as a driver of racial inequality in MMR and 3) generate initiatives and recommendations that specifically address obstetric racism.

6.5  Findings Coding and analysis of reports, related legislation, deliverables, and informational materials of 51 MMRCs, revealed that only two states—California and New York— and Washington DC directly addressed obstetric racism in their stated goals, reports, and recommendations. These three MMRCs were unique in that they demonstrated awareness of the RJ movement and framework, thereby encapsulating a human rights approach. These three MMRCs stand as models of commitment to reducing racial disparities in maternal mortality and executed three strategies that other committed MMRCs might model.

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6.5.1  M  aternal Survival as a Human Right and Institutional Responsibility First, these three committees acknowledge that it is necessary to center women of color as the leading experts on their own prenatal, birthing, and postpartum experiences. As Collins (2005) argues regarding the mainstream feminist critique of motherhood, knowledge produced without the critical standpoint of Black mothers is likely to be limited in its impact and usefulness in the lives of Black mothers. Each of these committees specifically includes Black doulas and midwives, as well as community organizations that advocate for and work with Black pregnant individuals. In New  York, Dana Ain-Davis, a trained doula, and the anthropologist who coined the term “obstetric racism,” serves the MMRC. The Washington, DC MMRC, still in its early phases of organization, opens its meetings to the public and includes a diverse array of stakeholders on its committee. Along these same lines, the New York MMRC recommends equitable reimbursement for midwives. If implemented by New York Medicaid, this would enable expectant mothers of color to seek out midwives with racial-ethnic and cultural competence for their care. The California MMRC regularly hosts webinars and information sessions led by community and non-profit organizations that serve Black and Latinx individuals and families. Second, both New York and Washington, DC have integrated implicit-bias training for health care providers into their recommendations (in D.C., it is mentioned in the legislative statute). While the effectiveness of these trainings is debated, for this research, it is important because it demonstrates a shifting of MMRCs’ focus from patients to providers. New York MMRC recommends comprehensive implicit bias training for providers and hospital staff that is attached to incentives. These trainings are coupled with numerous other strategies that directly address the differential treatment received by women of colour in medicalized birthing settings. New York also suggests loan forgiveness for HCPs from underrepresented groups who work in maternal health for three years, ideally, to reduce the biases experienced by pregnant and birthing individuals of colour. Third, these states recommend evidence-based strategies that remove biases from the process of treating women with symptoms of pregnancy-related disorders. In California, which stands as a model in quality prenatal care and the only state to radically reduce maternal mortality rates, the focus is on provider and hospital training, not on patient control and surveillance. Through the combined use of checklists, protocol, and the integration of safety bundles into hospital care, California has taken actionable steps to ensure hospitals address life-threatening pregnancy disorders such as hemorrhage. Referred to as the CMQCC model, California has pioneered free and easy-to-access evidence-based toolkits as resources for providers. Each toolkit contains resources on specific disorders of pregnancy and specific information on racial and ethnic disparities. CMQCC has facilitated the implementation of “safety bundles” in hospitals to ensure that providers have life-saving medical supplies needed for obstetric hemorrhage and preeclampsia. Hosting webinars

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on birth equity and quality care for all women, they also supply public-facing materials for pregnant individuals with information on “how to avoid a C-section if I don’t need one” and tips on avoiding hospitals with high rates of cesarean surgeries (CMQCC, 2020)—these surgeries are known to increase the risk of maternal death. While the racial disparity in birthing outcomes has not been eliminated, California has seen a 55% decline in maternal mortality (CMQCC, 2020). The New  York MMRC recommends the use of the same model to providers across the state. In both states and D.C., reducing racial disparities in maternal mortality is a central part of the initiative. Each recognizes racial disparity and recognizes that obstetric racism is an explanatory factor. Each also demonstrates awareness of the RJ approach and movement, encapsulating the notion that reproductive rights are human rights. While it is true that many state MMRCs recognize racial disparity, their reports and recommendations do not include provider racism as an underlying factor. In sharp contrast to the MMRCs just discussed, the Arizona MMRC, where the rate of death for AI/AN mothers is 70.8 per 100,000 births, invests publicly funded dollars in seatbelt awareness campaigns and admonishes mothers for their supposed resistance to medical advice.

6.5.2  Maternal Survival as Patient Responsibility The most recent report issued by the MMRC of Maryland revealed a rate of 44 deaths per 100,000 births for Black women during the 2013–2017 review period. More than three times greater than the rate of White maternal death (11.8), it is astounding that their report did not discuss the underlying causes of this inequity. Comprised entirely of medical doctors, who failed to reflect upon their own practices, the panel did not report that it considered or attributed maternal death to any provider-related causes. The Maryland MMRC exemplifies the overall findings of this research: through their work, state MMRCs build a discursive formation surrounding maternal mortality that reproduces racist ideologies about women of colour. This formation is not evidence-based but instead relies upon dominant ideologies that demean and blame women of colour as the cause of their own suffering. While it is outside the scope of this research to examine the history of controlling images of Black, Indigenous, and women of colour, it is important to note that at the center of these images is the stereotype that Black mothers particularly, are unconcerned with the wellbeing of their children—they are simultaneously (and contradictorily) viewed as welfare-reliant, scheming but also stupid, promiscuous, and belligerent (see Bridges, 2011; Collins, 1990, 2005). In this way, most state MMRC reports perpetuate controlling images of Black and other women of colour, even while purporting objectivity. Couched in “objective” reports in medicalized terms, tables, and recommendations, mothers of colour are presented as personally liable and problematic. This section highlights two findings in regards to the other 48 state-level MMRCs. First, the analysis of MMRC reports and other relevant documents revealed that maternal mortality continues to be understood as a

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patient-­driven phenomenon. Patients, and not institutions are morally responsible for their own health; maternal health, then, is a personal achievement and not a human right. Second, in states that do explore systems-level factors, including provider-level factors, racism enacted by providers is not considered. Individual-Level Factors  Many states, exemplified by Arizona’s seatbelt-wearing campaign, continue to blame mothers for their deaths. Like Arizona, many states mention structural-level barriers to care (such as lack of access in rural areas) in their reports but rely on patient-level solutions when making recommendations. In the case of Arizona, two of the top three recommendations are blame mothers (see Cabasag et al., 2019). When recommendations are framed through a patient-level lens, the recommendations that result often suggest extending the disciplinary apparatus of the state further into the lives of marginalized women, typically by intensifying the scope of social control into the homes and private lives of women. Arizona, for example, is one of many states that recommends considering home visitations. While a home visitation can be incredibly valuable to a healing new mother, their value is experienced differently based on access to racial and class privilege, particularly when the home visitation becomes a requirement. In these situations, home visitations can coerce women into a regulatory position in exchange for prenatal care. Adding requirements and visitations for women of colour who are already receiving low-quality or culturally inappropriate prenatal care only further subjects them to objectification under a racialized and medicalized gaze—a gaze that is given access to mothers in the most private and intimate spaces of their everyday lives. As Clarke et al. (2010) explain, “risk and surveillance are aspects of the medical gaze that is disciplining bodies” (p. 64). Being “at-risk” demands and justifies the coercive surveillance of the imagined population. Health is assumed to be achieved largely through surveillance and avoidance of risk through the technomedical gaze (Clarke et al., 2010); for pregnant individuals, this achievement involves ongoing prenatal surveillance even in the absence of symptoms that might suggest or indicate risk. In this way, Virginia’s MMRC, which also advocates for additional home visitations for postpartum women who are publicly insured, might be interpreted as a state actor that is inserting state surveillance and discipline into the homes of pathologized and criminalized groups of women. Clarke et al. (2010, p. 63) also explain that, under the biomedical era, health is framed as a moral responsibility. Along these lines, I found that maternal mortality review committees frame prenatal care as a moral responsibility, without acknowledging how providers routinely discourage regular and early care through disrespectful or dismissive care. States commonly recommend that women seek prenatal care as early and consistently as possible throughout the entire gestation period while failing to acknowledge why women do not (and that most women die in the postpartum period). They fail to consider the many ways in which women of colour, particularly Black women, put themselves at risk just by entering the biomedical model of birthing and delivery. In this way, mothers are implicated in their own deaths, failing in their moral and social responsibility to nurture their children.

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MMRCs commonly define women who eschew prenatal care as negligent, irresponsible, and even abusive (see Roberts 2002). MMRCs should consider that a mother so readily labeled as abusive would likely not want the state in her home to further assess and scrutinize her body and behaviors. MMRCs systematically did not indicate the percentage of maternal death attributed to failure to seek out prenatal care or discontinued prenatal care. This leaves one to question the percentage of deaths that were related to sporadic or dispensed prenatal care. This may be because there is no evidence that women of colour do not seek prenatal and postnatal care when they become symptomatic of complications. In contrast, an abundance of research, including research gathered by MMRCs, demonstrates that women of colour are overlooked when reporting problematic symptoms, including extremely dangerous symptoms such as high blood pressure and bleeding. Despite this, MMRC reports overwhelmingly relied upon a narrative of a neglectful or unintelligent mother who ignores prenatal care and postnatal warning signs.

6.5.3  Societal-Level Factors MMRCs occasionally recognized systemic racism as an explanatory factor. Most often utilizing some variation of the weathering hypothesis, these MMRCs acknowledged how a lifetime of toxic stress maps onto the pregnant body. These MMRCs, such as New Mexico, Illinois, Indiana, Connecticut, Colorado, Florida, Georgia, South Dakota, and Washington, discussed MMR disparities in their states. While acknowledging a racialized problem, these states often proposed colorblind solutions or patient-level solutions. They commonly neglected to include health care institutions as a racialized environment, furthering the assumption that health care, and the providers that practice within them, are colorblind. Even when acknowledging the impact of racism on mothers of color, these MMRCs did not view institutions as culpable for ensuring that mothers of color have access to safe, healthful birthing experiences. As Luna (2020) argues, state actors and social institutions do not necessarily accept the view that reproductive health is a human right even as RJ advocates and organizations demand otherwise. In reviewing the deaths of pregnant and postpartum individuals, many MMRCs did report what they called system failure, stating that providers may miss opportunities for diagnosis and treatment. State MMRCs such as Ohio, Iowa, and Indiana acknowledge that provider care is often inadequate. Ohio, for example, highlights in their reports that poor quality care and failure to screen and diagnose women have resulted in many preventable deaths. In fact, most states acknowledge that at least over half of the maternal deaths are preventable. These states do not investigate further, seeking to understand how obstetric racism shapes which women are screened, diagnosed, and listened to and those who are not. Data tell us that the system fails many more Black, AI/AN, and Latinx mothers than it does White mothers, a fact that MMRCs systematically disregard. Why are MMRCs conceptualizing

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healthcare delivery systems as racially neutral actors situated outside of systems of power? It can be inferred that this prolific body of discourse serves to further stigmatize pregnant and birthing individuals of colour and to absolve the state, the health care industry, and HCPs of their responsibility to ensure that maternal health—a basic human right—is achieved.

6.6  Conclusion As Luna (2020, p. 212) argues ‘human rights are not a panacea’ and this is clearly true regarding the findings presented here. This analysis shows that of 51 MMRCs, only three aligned with a human rights approach in their reports and recommendations. These MMRCs acknowledged that access to resources and to anti-racist HCPs is necessary. That 48 MMRCs do not comprehensively center race and racism in their work is puzzling given that they are charged with resolving a race-based public health crisis. Framed largely in terms of individual responsibility, MMRCs largely fail to consider the multitude of factors that shape MMR and dismiss the notion that the health of pregnant and birthing individuals is a fundamental human right. Consequently, these state actors reproduce racist and controlling images of mothers of colour as pathological, lacking in knowledge, irresponsible, and deficient. Far from offering solutions, MMRCs largely absolve health care providers and health care delivery systems of their role in constructing high rates of maternal mortality in the United States. Their recommendations largely ignore the profound forms of provider racism and obstetric violence endured by women of colour within biomedical systems of maternal care. In so doing, these initiatives comprise a discursive formation that socially constructs an imagined population of “at-risk” Black, Indigenous, and mothers of colour, reproduces biological notions of race, and fails to address racial inequalities in maternal care. My research findings suggest that state-level maternal mortality committees and their initiatives have not yet integrated the ethos and spirit of the RJ human rights approach. State MMRCs may be comprised of experts, but they are not necessarily experts on maternal health nor do they all agree that maternal health is a human right that merits state-based resources; to be impactful; MMRCs must acknowledge and intervene in the everyday practices of obstetric racism that kills Black, Indigenous, and mothers of colour.

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Cabasag, C., Rubio, V., & Williams, D. (2019). Arizona maternal mortality review program: Program report, 2012–2015. Arizona Department of Health Services. https://azdhs.gov/ documents/prevention/womens-­c hildrens-­h ealth/reports-­fact-­s heets/maternal-­m ortality-­ review-­2012-­2015.pdf Callaghan, W.  M. (2012). Overview of maternal mortality in the United States. Seminars in Perinatology, 36(1), 2–6. https://doi.org/10.1053/j.semperi.2011.09.002 Centers for Disease Control and Prevention. (2019). Racial and ethnic disparities continue in pregnancy-­related deaths [Press release]. https://www.cdc.gov/media/releases/2019/p0905-­ racial-­ethnic-­disparities-­pregnancy-­deaths.html Centers for Disease Control and Prevention. (2020). Pregnancy mortality surveillance system. Retrieved from https://www.cdc.gov/reproductivehealth/maternal-­mortality/pregnancy-­ mortality-­surveillance-­system.htm Clarke, A. E., Shim, J. K, Mamo, L., Fosket, J. R., & Fishman, J. R. (2010). Biomedicalization: Technoscience, health, and illness in the U.S. Duke University Press. CMQCC. (2020). My birth matters. California Maternal Quality Care Collaborative. https://www. cmqcc.org/my-­birth-­matters Colen, S. (1995). ‘Like a mother to them’: Stratified reproduction and West Indian childcare workers and employers in New York. In F. Ginsburg & R. Rapp (Eds.), Conceiving the new world order (pp. 78–102). University of California Press. Collins, P.  H. (1990). Black feminist thought: Knowledge, consciousness, and the politics of empowerment. Routledge. https://doi.org/10.4324/9780203900055 Collins, P.  H. (2005). Black women and motherhood. In S.  Hardy & C.  Wiedmer (Eds.), Motherhood and space (pp. 149–159). Palgrave. https://doi.org/10.1007/978-­1-­137-­12103-­5_9 Davis, D. A. (2019). Obstetric racism: The racial politics of pregnancy, labor, and birthing. Medical Anthropology, 38(7), 560–573. https://doi.org/10.1080/01459740.2018.1549389 Declercq, E., Sakala, S., Corry, M., Applebaum, S., & Herrlich, A. (2013). Listening to mothers III: Pregnancy and childbirth. Childbirth Connection. Fishman, S. (2020). An extended evaluation of the weathering hypothesis for birthweight. Demographic Research, 43, 929–968. https://doi.org/10.4054/DemRes.2020.43.31 Geronimus, A. T. (1991). The weathering hypothesis and the health of African-American women and infants: Evidence and speculations. Ethnicity and Disease, 2(3), 207–221. Grimes, D. A., & Cates, W. (1977). The impact of state maternal mortality study committees on maternal deaths in the United States. American Journal of Public Health, 67, 830–833. https:// doi.org/10.2105/AJPH.67.9.830 Howell, E. (2018). Reducing disparities in severe maternal morbidity and mortality. Clinical Obstetrics and Gynecology, 61(2), 387–399. Leonard, S., Main, E. K., Scott, K. A., Profit, J., & Charmichael, S. (2019). Racial and ethnic disparities in severe maternal morbidity prevalence and trends. Annals of Epidemiology, 33, 30–36. Luna, Z. (2020). Reproductive rights as human rights: Women of color and the fight for reproductive justice. New York University Press. Maina, I. W., Belton, T. D., Ginzberg, S., Singh, A., & Johnson, T. J. (2018). A decade of studying implicit racial/ethnic bias in healthcare providers using the implicit association test. Social Science & Medicine, 199, 219–229. https://doi.org/10.1016/j.socscimed.2017.05.009 Morton, C. (2018). Foreword. In J. C. Oparah, H. Arega, D. Hudson, L. Jones, & T. Oseguera, Battling over birth (pp. 4–5). Praeclarus Press. Morton, C., Henley, M., Seacrist, M., & Roth, L. M. (2018). Bearing witness: United States and Canadian maternity support workers’ observations of disrespectful care in childbirth. Birth, 45, 263–274. https://doi.org/10.1111/birt.12373 Oparah, J. C. (2016). Beyond coercion and malign neglect: Black women and the struggle for birth justice. In J. C. Oparah & A. D. Bonaparte (Eds.), Birthing justice: Black women, pregnancy, and childbirth (pp. 1–23). Routledge. Oparah, J. C., & Bonaparte, A. D. (2016). Birthing justice: Black women, pregnancy, and childbirth. Routledge.

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Oparah, J. C., Arega, H., Hudson, D., Jones, L., & Oseguera, T. (2018). Battling over birth: Black women and the maternal health care crisis. Praeclarus Press. Paradies, Y., Truong, M., & Priest, N. (2014). A systematic review of the extent and measurement of healthcare provider racism. Journal of General Internal Medicine, 29(2), 364–387. https:// doi.org/10.1007/s11606-­013-­2583-­1 Petersen, E. E., Davis, N. L., Goodman, D., Cox, S., Syverson, C., Seed, K., Shapiro-Mendoza, C., Callaghan, W.  M., & Barfield, W. (2019). Racial/ethnic disparities in pregnancy-related deaths—United States, 2007–2016. Morbidity and Mortality Weekly Report, 68(35), 762–765. https://doi.org/10.15585/mmwr.mm6835a3 Roberts, D. (2002). Shattered bonds: The color of child welfare. Basic Civitas Books. Ross, L. (2017). Trust black women: Reproductive justice and eugenics. In L. Ross, L. Roberts, E. Derkas, W. Peoples, & P. B. Toure (Eds.), Radical reproductive justice: Foundations, theory, practice, critique (pp. 55–58). Feminist Press & the City University of New York. Ross, L., & Solinger, R. (2017). Reproductive justice: An introduction. University of California Press. Solinger, R. (2005). Pregnancy and power: A short history of reproductive politics in America. New York University Press. Valdez, N., & Deomampo, D. (2019). Centering race and racism in reproduction. Medical Anthropology, 38(7), 551–559. https://doi.org/10.1080/01459740.2019.1643855 Wildsmith, E.  M. (2002). Testing the weathering hypothesis among Mexican-origin women. Ethnicity and Disease, 12, 470–479. World Health Organization. (2019). Maternal mortality ratio 2017. http://gamapserver.who.int/ gho/interactive_charts/mdg5_mm/atlas.html Nazneen Khan is an Associate Professor of Sociology at Randolph-Macon College. Using intersectional theory and methodology, her research and teaching focuses on USA families, childhood, and motherhood at the crossroads of broader racial, economic, and political formations. ORCID iD: https://orcid.org/0000-­0002-­7721-­6497  

Chapter 7

The COVID-19 Pandemic and the Globalization of Trauma: A Case for Health Care as a Human Right Michele Solloway and Rebecca Stahl

Abstract  This chapter examines the intersection of three seemingly unrelated topics  – globalization of technology, communications, and rise of social media as a primary source of information and connection; the worldwide COVID-19 pandemic and its impact on our understanding and experience of trauma; and healthcare as a human right. We posit that globalization of communications concurrent with the pandemic resulted in a phenomenon unique in our human history – the universal and simultaneous experience of trauma and the collective, real-time knowledge that this was happening to us all. This fundamentally shifted our beliefs, ideology, and narrative about trauma, reduced stigmatization, and opened possibilities for expanding treatment. We explore the concept of healthcare as a human right and its operational imperative as applied to one outcome of the pandemic  – the treatment of trauma and its symptoms. We discuss the United Nations’ precedents for healthcare as a human right, how the United States relates to these treaties, and their applications to addressing trauma. Although trauma recovery for adults is important, we focus on and promote the urgency of addressing trauma experienced by children and adolescents because of its critical developmental and lifelong impacts, and high economic and opportunity costs. The chapter concludes with a call to action. Keywords  Adolescents · Children · COVID-19 pandemic · Globalization · Healthcare · Human rights · Social justice · Stigma · Trauma · UN Beginning in March 2020, we – meaning all humans – have been experiencing perhaps one of the most devastating, wide reaching, and impactful events in our lifetimes: the onslaught of the COVID-19 pandemic with its attendant health, economic, educational, and social adverse outcomes, including but certainly not limited to M. Solloway (*) SUNY Downstate Medical School, New York City, NY, USA e-mail: [email protected] R. Stahl University of Baltimore School of Law, Baltimore, MD, USA © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_7

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country lockdowns, illness and intensive care hospitalizations, increased mental health problems and suicide, death, loss of jobs and income, increased homelessness and food insecurity, medical supply shortages and stress on the healthcare system, loss of educational attainment, and social isolation to name a few. In short, everyone on the planet experienced the pandemic and its associated traumas in one form or another. More importantly, and what makes this event unique, this was the first time in human history that it happened to everyone around the world simultaneously AND we all knew about it in real time. Arguably, this was only made possible by the meteoric growth of social media and other globally-­linked electronic communication mechanisms that connected people across the world instantaneously. Consequently, trauma from COVID-19 was a thoroughly universal, simultaneous experience, even if various regions were affected by it in different ways. What were the unanticipated outcomes of the confluence of these events? How did it change our knowledge and perceptions of ourselves, others, and the world? What are the implications of this unique occurrence for human rights in general and healthcare as a human right more specifically? What can we learn from this and where do we go from here? This chapter explores two related questions: (1) how has the combination of globalized communications networks and a world-wide pandemic shifted our knowledge, beliefs, perceptions, and experience of trauma; and (2) what does this shift in ideology mean for healthcare, and more to the point, healing and recovery, as a human right? These are discussed in the first two sections of this chapter. We then present an argument for a specific focus on identification, treatment and recovery from childhood trauma and the provision of care to children as an essential human right. The chapter ends with a call to action.

7.1  G  lobalization, Ideology and Trauma: How the Growth of Technology and the COVID-19 Pandemic Converged to Shape Our Knowledge, Experience, and Understanding of Trauma While globalization is a relatively recent phenomenon in the scope of human civilization, it is not new for those of us living today. In earlier writings and again in this book Hudson (2010) and others have thoroughly described the various causes, components, and history of globalization with their attendant structural, economic, social, and cultural impacts (Abernathy, 1983, Bluestone & Harrison, 1982 and 1986; Cohen & Zysman, 1987; Solloway 1991). In the latter half of the twentieth century, globalization focused primarily on the growth of permissive technologies1

1  Permissive technology is defined as the early microcomputer technologies, new in the 1970s–90s, that allowed rapid changes in manufacturing processes – the type, number and location of goods and services produced  – in response to market fluctuations, such as exchange rates, fiscal and monetary policies, patterns of capital investment, changes in political environments, and interna-

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and subsequent international realignment of manufacturing, production processes, and overseas outsourcing (Green, 1985, Gordon & Levine, 1988; Piore & Sabel, 1984). More recently, however, globalization has been unequivocally linked to the internet (the extension and evolution of permissive technologies), other computer-­ based technologies, and web-based applications that offer instantaneous connection, purchasing of goods and services, and information sharing on a world-wide basis (James, 1999; Narula, 2003; Tassy, 2008, Drori, 2010). Of particular importance to understanding how globalization has impacted our knowledge and experience of trauma is the significant impact of real-time access to information and the immense growth and use of social media in the past decade as people’s primary sources of news and information. Perrin (2015) reports that the use of social media increased from 7% to 65% between 2005 and 2015, since the time that the PEW Research Center has been collecting data on this topic. Usage was strongly associated with lower age, higher education, higher income, and being an urban dweller. Notably, few differences were found within gender and race groups. At the time of this writing (summer 2021), 18 months of COVID-19 has affected 220 countries and territories and resulted in over 176 million known cases (Worldometer, 2021), likely a large under-estimate given limited testing capabilities, especially early on in the pandemic. Still in progress, the COVID-19 pandemic, a world-wide event, resulted in a unique phenomenon: people all over the world experienced trauma and we learned about it in real time. That is to say, trauma in its many forms was a global, and importantly, well-known and documented experience. Few people in developed or high resourced countries could escape being socially isolated; experiencing or hearing about terrible and extensive illness, the lingering after or side effects of COVID, and death; being unable to be with loved ones as they passed; watching the horror of reduced capacity of many countries’ health care systems to deal with the sick, dying, and dead. Lower resourced countries may have had different or the opposite experiences – being locked out of their healthcare systems, inability to be isolated from life-threatening illness, lack of access to testing and treatment and so forth – but experiences that nonetheless in the context of the pandemic similarly resulted in trauma. We all experienced some and often multiple versions of this world wide trauma. We all saw it happening in real time. We continue to experience these events as COVID-19 persists and mutates, bringing even more illness, death and destruction. Although pandemics, even world-­ wide ones, have occurred through the millennia, this was a unique event in human history because of our knowledge of that common and simultaneous experience in real time. It is important to note that each country and locality may have experienced different aspects of COVID; however, the interconnected nature of the world now tional trade relations. The development of permissive technologies was significant because it altered the nature of tradeoffs traditionally made between capital and labor in production decisions; it undermined the traditionally capital-intensive, union-organized manufacturing processes found in the US; and it resulted in significant outsourcing of middle class US industrial jobs (deindustrialization), growth of the service economy, and redistribution of jobs and wealth in the US.

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meant that everyone experienced some version of it primarily and all of it vicariously. For example, in New Zealand and Australia, life was fairly normal once they had no cases – earlier on in 2020 than most countries – because of swift and uniform implementation of precautions. These countries shut down, but earlier and for shorter periods that say the United States. Alternatively, India was initially doing quite well, the out of nowhere there was catastrophe and the emergence of the COVID Delta variant, followed by new spikes in countries that were beginning to do well and open up. The Delta variant continues to wreak havoc and it feels like the trauma is ricocheting around the world with devastating results. By historical comparison, the next most recent and comparable global pandemic – the 1918 Influenza pandemic (Spanish Flu, 1918–1920) – was estimated to infect approximately one third of the world’s population, 500 million at that time, and is considered even today as one of the most deadly infectious disease events in history (Taubenberge & Morens, 2006). Another global experience that might be considered comparable in terms of its traumatic impact, although much smaller in scale, is the dropping of atomic bombs on Hiroshima (August 6, 1945) and Nagaskai (August 9, 1945). The attacks immediately killed an estimated 120,000 people, with many hundreds of thousands more dying from radiation exposure and subsequent medical conditions (LeMay & Tibbets, 2014; History.com [a], 2009). The news quickly spread and stunned the world and is consequently considered a major global traumatic event, even if it did not directly impact everyone, in part because of its novelty, scope of devastation, and implications for the changing nature and future of warfare. One could also argue that recent disasters both natural and human-made – such as the nuclear core meltdown and subsequent tsunami in Fukushima, Japan; the nuclear plant melt down at Chernobyl, Russia; the Katrina hurricane in New Orleans, USA; constant wars across the Middle East and consequent and devastating growth in refugee populations resulting in changes in migration patterns – have also had wide-spread, global and traumatic impacts on a large number of countries and individuals. Indeed, as a global community, we have known and had reactions to these events, often in real time. Climate change also looms large (in fact is here) as a world-wide source of devastation and trauma. While countries and individuals demonstrate varying degrees of acknowledgement or acceptance, neutrality (not my problem) or denial, sooner rather than later, and regardless of whether it is believed to be human generated or not, all humans will experience the simultaneous impacts of global warming. The specificity of the impacts will vary of course depending on locality and change in weather patterns, but floods, fires, widespread food shortages and resulting migration (which we are already seeing) are expected and likely to produce a similarly unprecedented shared trauma. A more recent, positive and decidedly less traumatic event illustrating the phenomenon of a global simultaneous experience is the US spacecraft landing and walk on the moon on July 20, 1969. (NASA, 2019; History.com[b], 2018). Although this may not have been simultaneous, seeing the earth from space was also more or less universally experienced. These events – the dropping of the atom bombs, the walk on the moon, and seeing ourselves from space fundamentally altered our perception

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of reality. They showed us something new, something that prior to the event was not fully conceivable. These events changed our frame of reference and with it our beliefs and understanding about who we are as a species and what is and might be possible.

7.1.1  I mpact of the Pandemic on the Use and Reliance on Internet and Social Media Platforms and Its Relationship to Trauma Having been isolated for the past 18 months from our family, friends, and communities, our understanding of the COVID-19 pandemic has largely come through online sources. Social media, zoom events, and other online forums took on an even greater importance during this time. During the pandemic, social media transformed our work, our sense of community, our recreation and play, and our access to healthcare, food and other necessities. For those who are sufficiently privileged to have access to the internet, t expanded opportunities for learning and continued education for people not able to attend school in person. For many it became our only source of connection and social engagement. In short, it brought people around the world closer together and became a lifeline – one which we are now reluctant to surrender. Hussain (2020) notes that while “…social and mass media (broadcast and digital) has ability to convey a sense of unity by reaching large number audience/users, social media may also provide opportunities for misinformation and discrimination” (p1); and indeed we have seen this happen (Anderson and Rainie, 2017) He further suggests that alternatively, social media can play an important role in positively impacting our global response to the COVID-19 pandemic by promoting effective public health strategies (social distancing, mask wearing, limited gatherings); reducing stigma, discrimination, and inequalities; and providing information about the status of COVID-19 and problem areas around the world. Additionally, just as the consequences of the pandemic have been distributed unevenly, there are significant differences between developed and underdeveloped countries, within any given country, and between racial, ethnic, and socioeconomic groups due to wide variations access to and use of broadband, the internet and computers, individual capacity, interest, and use of online platforms for information sources, and varying levels of state censorship, among other factors. With more people now than ever using social media as their primary source of information, these platforms are now framing our world view and thus our respective ideologies. Social media platforms are designed to identify users’ interests, effectively target and promote access to similar items (most often using algorithms and for the purpose of increasing advertising revenues), with the result of creating a “rabbit hole” – reinforcing one’s views and narrowing the scope of discourse. Social media has become ubiquitous and pernicious – a staple of our twenty-first century life. Many fear that it is also quickly becoming the fastest route to radicalization of

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beliefs and ideology that will produce extremist and antisocial or violent behavior (Thompson, 2012) and prey on the vulnerable. Like any new scientific development, there can be positive, negative and/or unanticipated consequences of the growth of social media. The societal benefit of the growth of the internet and social media is an empirical, ongoing, and open question. One consequence of the intersection of real-time access to information and the pandemic has been that trauma, having been directly experienced by everyone, has become more known, more articulated and more common in the vernacular. Writing for the NeimandLab Predictions for Journalism 2021, Evans (2021) writes: Trauma-informed reporting is often front and center in stories about survivors of sexual assault, mass shootings, or other major crimes. But in 2021, newsrooms will have to understand that trauma goes well beyond that harrowing subject matter. They will have to build a better foundation of helping readers, viewers, listeners, and online visitors understand what the depths of community trauma looks like on an everyday basis…Trauma is everywhere, even if the communities we serve don’t always use that t-word to describe their experiences (Evans, 2021).

Trauma is in fact a universal human occurrence – everyone experiences some form of trauma at some point in their lives. However, it is not the actual traumatic event that delineates outcomes but a confluence of personal and social history, cultural beliefs and perceptions, sources of resilience and support, and how we actually experience and process the event(s), or not that matter (Levine [a] 2010; Blakeslee et al., 2018). So while trauma is universal and everyone experienced some form of trauma as a result of the pandemic, our individual and community responses and our relative resources to address our experiences will vary. Regardless of these differences, our foundational commonality is our right to treatment and recovery.

7.2  H  ealth Care as a Human Right: The International Human Rights Framework, US Domestic Policy, and the COVID-19 Pandemic Health care as an international human right was first adopted under the Universal Declaration of Human Rights (UDHR) by the United Nations (UN) General Assembly in 1948 (United Nations [a], 1948, see Article 25), and further delineated by three additional documents: the International Covenant on Economic, Social and Cultural Rights (ICESCR, United Nations [b], 1966/2000, see Article 12), the Convention on the Rights of the Child (CRC, United Nations [c], 1989, see Articles 19, 24, 27, 33–37, and 39), and the UN Educational Scientific and Cultural Organization (UNESCO) Universal Declaration on Bioethics and Human Rights (United Nations [e], 2005). These treaties and declarations have been ratified by many countries; the US, however, along with a handful of other countries, remains only a signatory to these proclamations. The US has ratified several other United Nations treaties that are related, at least tangentially, to healthcare as human right,

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including the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (1994); the International Convention on the Elimination of All Forms of Racial Discrimination (1994); the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (2002); and the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography (2002, United Nations [j], 2021). Lie (2004) suggests that healthcare as a human right is based on three principles. First, the fact that health is important might be a motivating force for governments to institutionalize allocation of resources for healthcare for its citizenry. Second, using a moral and philosophical proposition, government has a legal obligation to promote the health, well-being, and safety of its citizens. It is thus a function of government to promote healthcare as a right, which in turn would also lead to a (re) allocation of resources. Third, the principle of non-discrimination – also found in the UDHR, ICESCR, and CRC – states that limiting access to healthcare based on any sort of discrimination (economic, social, demographic, health status) is unethical. The constant attention to health disparities based on race/ethnicity, gender, and socioeconomic status within the US and between higher and lower resourced nations highlights the extent to which work is still critically needed to fulfill the promise of the UN declarations. In analyzing the intersection of human rights and public health ethics, Nixon and Forman (2008) suggest that combining these two fields could synergistically strengthen and promote healthcare as a human right by: a) reinforcing the moral, ethical, and philosophical claims embedded in international human rights laws; b) strengthening advocacy for human rights through collective action; and c) bridging the divide between public health practitioners and human rights advocates. Public health stresses population-based societal determinants of health which fall under the human rights rubric of UDHR, Article 252 and the ICESCR Article 123 (United Nations [a] and [b], op.  cite.). Additionally, public health ethics understands population-­based healthcare in the context of social, political and institutional

2  UDHR Article 12 states that all people (ie: population-based) have “…a right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” 3  IECESR Article 12 states: “1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; and (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness. It should be noted that flexibility to adopt and implement provisions in the UN treaties, known as “progressive realization” came into parlance in the IECESR, 52 years after the enactment of the UDHR.

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contexts. As Kingston et  al. (2010) also note, “…the right to health cannot be understood in a vacuum…(it) cannot be realized in the absence of substantive and effective protections for a host of other human rights.” (p3). International human rights law has at its core the foundational principle of the inherent dignity, worth and equal rights of all people. Combining these two philosophical stances can help broaden each area’s approach and promote their mutual goals: improved health. Many scholars have framed the debate between public health and human rights as a polarity, largely based on differences between a focus on the collective (public health) versus the individual (human rights, Peled-Rax, 2017). The real question is not whether these two areas are overlapping or mutually exclusive; it is how and in what specific arenas do or can we balance individual and collective interests? Combining these two fields could provide insight into answering these difficult questions, hopefully with specificity. Forman et al. (2013) expand this discussion noting that there is no clear consensus about how to resolve or balance different, legitimate and competing perspectives on resource allocation for health care within a country or between richer and poorer nations. The authors go further in saying that the principle of progressive realization  – which links the provision of health care services to a country’s available resources and on its face seems completely reasonable and legitimate – can actually undermines nations’ responsibilities and obligations to implement the promise of healthcare as a human right declared in the UN treaties. In part as a response to this issue, the United Nations developed the Millennium Development Goals (MDG, United Nations [f], 2015) which offers a blueprint for achieving a number of health, education, economic, environmental, and sustainable development goals and which have been agreed to by many of the world’s countries and leading development institutions. While developing a set of “minimum core obligations” is helpful, more specificity is required to address the gaps and definitional vagaries that permit inaction, claims of austerity, and trade-offs (legitimate or otherwise) in the allocation of resources. The 2016 update to the MDG offers some of this specificity (see United Nations [g], 2016). The US has over time developed a dual relationship to the tenants of healthcare as a human right. At one end, universal health insurance coverage legislation has long been sought at the federal level dating back to the post-WWII period (Maioni, 1997, Kingston et al., 2010). However, there is major political, social, and cultural opposition to enacting such legislation, largely due to the lobbying efforts of the insurance and medical corporate industries, who spent over $150 million in 2020 to influence the legislative process (Krumholz et al., 2021). There is also political and cultural opposition to large government and government intervention into personal lives and on the basis that universal healthcare coverage smacks of “socialism” (Steinmo & Watts, 1995). Of note, the hypocrisy in using the ideals of small government, non-interference of government, and anti-socialism ideology when seen through the lens of the medical-industrial complex (Relman, 1980) and extensive support of the private sector through the military-industrial complex (Held et al., 1999) is ironic. The US also has an historical emphasis on health insurance being provided through employers and the private sector which has led, for better or

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worse, to healthcare being more typically seen as a free market good or service. These factors may partially explain the US’s ambivalence and the lack of federal support to ratify the UDHR, ICESCR, and CRC. At the other end, the US has created a wide variety of foundational laws and institutional systems of care that codify, at least in a patchwork sort of way, and operationalize access to healthcare as a basic right. These include passage of the 1965 amendments to Social Security Act (SSA, 1935) which created a broad foundation for health and economic supports including Medicare - universal coverage for adults aged 65 and older and some individuals with disabilities (SSA, PL 89–97, 1965; Cohen and Ball, 1965); the Patient Protection and Affordable Care Act (colloquially known as “Obama Care,” PL 111–148, 2010); continuous efforts to expand Medicaid (Title IX of the SSA), a state-based, federally subsidized health program for some low income and disabled adults and children; block grant subsidies to states under the Maternal and Child Health Program (Title V of the SSA); and a variety of other federal and state laws and programs that address particular aspects of health  – foster care; care provided by public hospitals and federally qualified community based clinics that subsidize care for low income and uninsured individuals; disability-related needs; end-stage renal disease, the Ryan White Act (HIV-­ related care); the Veterans Health Administration; the Substance Abuse and Mental Health Services Administration (SAMHSA); health care programs for the homeless, and so on. However, these programs are generally targeted to socially and economically disadvantaged or disenfranchised populations rather than the US population at large, demonstrating some ambivalence to doing what all other industrialized countries and some non-industrialized countries have done  – creating a clear floor by which all individuals in the country have unequivocal access to healthcare as a basic right. This duality was unmistakably demonstrated during the COVID-19 pandemic and the various actions and approaches taken by political agents and administrations. The Trump administration (2016–2020), by its own admission downplayed the significance of the pandemic, ignored the advice of its own scientific experts, promoted conspiracy theories about the origins of and treatment for COVID-19, turned basic public health safety measures such as wearing masks and maintaining social distance into a political stance that embraced individualism at the expense of community safety, and turned the national distribution of protective gear, testing equipment and vaccines into a chaotic, free-for-all capitalist endeavor, pitting states against states and corporations against each other (Swan, 2021). The one positive effort by the Trump administration was to fund basic research and clinical trials to expedite preliminary FDA approvals of the COVID vaccines. The current Biden administration (2021-), on the contrary, stressed the importance of and modelled public health measures, continued the expedited research and FDA reviews, corralled all the powers of the federal government to mount a coordinated response and quick dissemination and distribution of protective gear, other medical supplies, and testing equipment, and when ready, the vaccines. At this writing, six months into the Biden Administration, more than half of all adults in the US have been vaccinated and we are nearing herd immunity in some cities. We are now also starting to export

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vaccines to more disadvantaged countries – a course of action that is embedded in the ICESCR (see Article 2:14). Towards the end of the Trump administration, the UN Committee on Economic, Social and Cultural Rights (CESCR) – the entity responsible for overseeing, reviewing, and operationalizing the ICESCR  – released two statements related to COVID-19. The first outlines the impact of the pandemic on economic, social, and cultural rights, including civil and political rights, noting that due to underinvestment in public health systems and basic economic supports, particular groups are at higher risk of impact from the pandemic, including disadvantaged and marginalize groups; elderly adults; people working in the gig economy; and indigenous, refugee and asylum seekers, violating the principle of non-discrimination. The statement calls for “…the inherent dignity of all people (to be) respected and minimum core obligations imposed by the Covenant to be prioritized…” including, explicitly, the right to health (United Nations [h], 2020a, p3). Citing the UDHR articles 25 and 27 and the ICESCR articles 12 and 25 as justification, the second statement articulates that by implication, “…every person has a right to have access to a vaccine for COVID-19 that is safe, effective and based on the application of the best scientific developments.” (United Nations [i], 2020b, p1). These statements are important because they operationalize the broader concepts of a) access to health care as a human right; b) the right to the highest attainable standard of physical and mental health; and c) the right to the benefits of scientific progress. Importantly, these statements also identify specific treatments or interventions. This type of specificity is helpful in promoting healthcare as a human right by creating precedents. Understanding Trauma: A Foundational and Significant Outcome of the Pandemic. While COVID-19 treatments and interventions have been elucidated, nothing has been said about the primary outcome of the pandemic – trauma. In writing about access to pain treatment as a human right Lohman et al. (2010) suggest that “[f]ailure to take reasonable steps to ensure that people who suffer pain have access to adequate pain treatment may result in the violation of the obligation to protect against cruel, inhuman and degrading treatment.” (p1). Again, this specificity sets a useful precedent and offers a path for other kinds of medical treatment to be seen as a human right under UDHR, ICESCR, and CRC. For example, while this article applied the principle to providing access to pain medications, by extension it may also be seen to apply more generally to trauma. Like chronic pain, (which is also a common symptom of trauma), trauma has a broad and systemic impact directly or through its symptomologies – including but not limited to other conditions that create or reflect pain, such as depression, anxiety, addiction, chronic fatigue,

4  Article 2, Section 1 states that “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

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post-traumatic stress disorder (PTSD), social isolation, or reduced physical, mental, emotional, social, and quality of health. Unless addressed, trauma can fundamentally alter the lens through which one perceives and lives life. It alters one’s sense of and reaction to threat on a physiological and emotional level; it changes the way in which one has access to and can make conscious choices; and it can create dysfunctional response patterns and shape one’s life narrative and world view (Fisher, 2021; Levine [b], 2017; Porges & Dana, 2018; Van der Kolk, 2014). In short, trauma is foundational and becomes a platform through which all other aspects of life are filtered. A wide variety of evidence-based treatments and interventions are currently available, broadly including medications, psychotherapies, bodywork, movement, and meditation. However, despite greater acceptance of mental and behavioral health problems, and required parity of coverage through public mechanisms such as Medicare and the ACA, there remain significant restrictions, stigmatization, and discrimination around people’s trauma needs, and treatments are not universally available. Mental health benefits are particularly problematic in the US as many interventions are either not reimbursable or limited, if covered at all, through insurance. Using the example of pain, we could equally promote the idea that withholding access to treatment for trauma is a breach of the UDHR, ICESCR and CRC. The effects of trauma can often be hidden, unrecognized, or not always well understood, particularly if the trauma is chronic rather than acute, or was long in the past so not consciously associated with current symptoms or syndromes. Additionally, and especially in some cultures, there is a significant amount of shame and stigmatization associated either directly with trauma or its symptoms. We are only just beginning to bring attention to the long standing impact and trauma of slavery and systemic discrimination (Graf, 2014). Mental health issues in many cultures are often not discussed outside the family if discussed at all; stigma surrounding mental health is a major reason for not seeking treatment (APA, 2021) and has been associated with reduced recovery (Oexle et al., 2018). Trauma also needs to be understood within a particular cultural context. In some cultures, schizophrenia, for example, is perceived as connection to the divine, with access to ancestors, and has a more spiritual and religious connotation; however, treatments more commonly use shamanic approaches, treatment that is not widely accepted or considered reputable in the allopathic community (Vitebsky, 1995). Treatment for trauma, like most other health conditions, has also become heavily medicalized. While there is certainly a role for medications – they offer balanced production of neurochemicals, control of cortisol for unregulated stress response, and effective, evidence-based management of various conditions – medications tend to address symptoms of trauma rather than the root causes. However, because medications are linked to reimbursable services, they tend to be more widely accepted and the first line of treatment in western medical systems. Although access to treatment and recovery for trauma experienced in adulthood is critical, we focus next on the unique and important needs of children because of their innocence (they are not typically responsible for the trauma they experience), greater severity and lifelong

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impacts of trauma and the significantly higher long term economic and opportunity costs experienced by children as they age into adulthood.

7.3  C  hildhood Trauma: A Case for Access to Health Care as a Human Right Trauma is often misunderstood or misdiagnosed, particularly in children, as Attention Deficit and Hyperactivity Disorder (ADHD), defiance disorder, learning disabilities, conduct disorder, reactive attachment disorder, or other personality disorders. While approximately 10% of children and adolescents experience mental health issues, less than one third seek treatment (Kaushik et al., 2016). The educational and social trajectories that attend these labels can have serious long-term detrimental outcomes. Childhood trauma, also frequently referred to as Adverse Childhood Experiences (ACEs), is particularly devastating for a number of reasons. ACEs are defined as events occurring during childhood that result in severe, lasting and/or chronic stress, such as child abuse and neglect, witnessing or experiencing violence in the home or community, living with a family member that has a mental health or substance abuse problem or is/has been incarcerated, death or loss of a parent, bullying, food and housing insecurity, racial discrimination, systemic oppression, natural or man-made disasters, and/or war (CDC, 2021). Critically, ACEs can affect brain development and behavior in children and consequently can have lasting effects into adulthood (Shonkoff et al., 2012). Adults with two or more ACEs are at increased risk for chronic disease, risk-taking behaviors, unhealthy lifestyles, addiction, social dysfunction, poor educational and economic attainment in adulthood, and early death (Felitti et al. 1998, Hughes et al., 2017).5 Developmental biology and neuroscience provide several important facts that are critical for understanding why we should care about and prioritize addressing childhood trauma. First, children’s brains and nervous systems are not fully developed until they are in their mid-twenties. Severe and/or prolonged trauma (also called toxic stress) experienced during childhood can change a child’s brain and body, resulting in changes in the types and levels of hormones secreted; changes in the developing immune system; neurological changes such as reducing neural connections in parts of the brain dedicated to learning, reasoning, vision, memory, language, emotion and comprehension; reduced ability to deal with adversity during adulthood; and changes in the child’s DNA (epigenetics) which induce changes in genes related to mental health and obesity, metabolic and heart disease, and which can be passed on to their children (Merck, 2018). In short, childhood trauma causes brain changes, lowers emotional control, lowers learning ability, lowers behavioral 5  It should be noted that the original ACEs study and most commonly used assessment tool included only 10 items. The ACEs Screener has been expanded significantly in recent years to include bullying, community violence, homelessness, systematic racial and gender discrimination, and items more specifically targeted to minority or disenfranchised populations.

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control, and impedes the ability to form relationships  – changes that persist into adulthood (Jackson-Nakazawa, 2015; Swanson et al., 2021). Second, the body and certain brain structures  – notably the amygdala, brain stem, and unconscious sensory mechanisms  – are designed to respond to threat automatically and faster than the more developed part of our brain such as the prefrontal cortex responsible for cognition (Levine [a], 2010; Porges and Dana, 2018). Third, all automatic responses of the nervous system are in service of survival. Survival responses that get established early in life and that are protective can persist and become dysfunctional in adulthood. Fourth, and perhaps most importantly, “…neurons that fire together wire together.” (Hebb, 1949/2002). Translated and taken in its totality, these factors suggest that neuro-circuitry gets formed from early experiences. If those experiences are traumatic, the brain and nervous system will get “wired” for survival and stay that way until attended to or deliberate efforts are made to address the trauma(s). As a result, the fight, flight or freeze (trauma) responses that were helpful for survival during the initial traumatic event can become increasingly dysfunctional later on. ACEs are thus foundational social determinants of health and are critical to the physical, intellectual, social, and emotional healthy development of children. ACEs represent a public health crisis (Solloway et al., 2017). They are ubiquitous and prevalent across gender, race, income, and all social and economic strata (Halfon et al., 2017). According to 2018–19 US Census Data, nearly two in five (39.8%) children in the US experienced one or more ACE, and nearly one in five (18.2%) experienced two or more ACEs (CAHMI, 2021). More than one quarter of US adults grew up with alcoholic parents or relatives; 8.7 million children are living with at least one parent with a substance use disorder; one in three pregnant women experience domestic violence; and 20% report having been sexually molested. Incarcerated individuals are four times as likely to have high levels of childhood trauma compared to non-offenders; and incarceration itself is traumatic (Lipari and Van Horn, 2017, Gilad, 2019). In the US, incarceration exhibits a strong bias related to race, systemic oppression, and low economic status (Vogel and Porter, 2016). In the absence of safe, stable, nurturing relationships and environments, each generation perpetuates the very lack of safety and nurturance fundamental to well-being. The economic costs associated with ACEs are staggering: the average (mean) cost for one year per patient for trauma care was $75, 210, a large majority of which was for hospital care (Weir et  al., 2010); adults’ major trauma is conservatively estimated at $27 billion annually; and the cost of childhood exposure to crime is estimated at $458 billion annually (Gilad, 2019). The full economic and societal costs are difficult to estimate due to siloed reporting, the lack of reporting of ACEs incidents, and difficulty with economic models that can accurately and fully capture the myriad of short and long-term impacts of chronic, repeated, prolonged trauma, and confounding interactions with demographic and economic variables. These facts validate both the urgency of addressing ACEs and the possibility of preventing, healing and stopping the cycle of violence, abuse and neglect that undergird many of our most intractable health and social problems. It points to the need for creating effective, community-based, trauma-informed, and resilience-building

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models across all sectors. Trauma-informed systems of care have recently taken on strong support from a variety of public and private sectors (Bloom & Farragher, 2013, Kezelman & Stravropoulos, 2012, Ko et al., 2008). In contrast to a conventional focus on negative development, risk factors, and pathology, trauma-informed care concerns itself with the largely untapped capacities for positive human development and places us squarely at the locus of human health and development within the social, emotional and environmental context we create and live within. And yet, access to badly needed services and interventions to address childhood trauma is not guaranteed. Bryant et al. (2020) report that ACEs have and will continue to accelerate with the COVID-19 pandemic. Along with the underlying UNDH and ICESCR treaties (United Nations [a] and [b], op. cite.) and most recent statements of the CESR about COVID-19 (United Nations [h] and [j], op. cite.), Article 39 of the CRC offers a pathway to provide treatment for ACEs, stating that: States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child (p. 11, emphasis added).

To the degree that we accept the CRC articles as legitimate, failure to address childhood trauma is a dereliction of our moral, ethical, and social obligations. It is important to note that in the US’s dual and ambivalent approach to universal health coverage and healthcare as a human right, there are many institutional platforms, agencies, programs, and efforts at the federal, state and local levels as well as in the private sector to provide treatment, and promote recovery and integration for children and their families.

7.4  Summary and Call to Action The convergence of new technologies, globalization of information, and onslaught of the COVID-19 pandemic fundamentally altered the world’s understanding, experience, and perspective on trauma. Trauma is foundational and impacts our health and well-being, and it is a root cause of many physical, emotional, and social disorders. Childhood trauma (ACEs) is particularly problematic because it significantly interferes with healthy growth and social-emotional development as children age into adulthood, resulting in high and life-long health and social costs. A number of UN Treaties provide a solid foundation for proclaiming healthcare is a human right. Recent additions to these treaties and declarations operationalize and speak specifically to treating COIVD-19 but not to its primary outcome – trauma. By extension, if people have a right to COVID treatments, then they should also have a right to its results - treatment of trauma and its symptoms.

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Although many efforts have been undertaken over the years to promote healthcare as a human right and create universal coverage for US citizens, the US has an ambivalent relationship to healthcare as a human right. With the political environment being so divided, it is unclear that the US will make progress in undertaking universal coverage or as a preliminary step, ratifying the existing UN treaties. That said, we are at a particularly unique inflection point in human history and have an opportunity to further educate people about trauma, its origins and impacts, and advocate for treatment as a fundamental right. We suggest a call to action for all countries and at all levels of government as well as within both public and private sectors to take actions promoting healthcare as a human right and in particular to promote access to treatment for mental health and trauma, as follows: 1. Advocate for the US Congress and other countries that have not yet done so to ratify the UN treaties and deem healthcare as a human right and specifically taking action on the UN treaties related to COVID-19. 2. Educate the public about trauma – its origins, neurophysiology, and symptoms – and promote trauma-informed systems of care. There are many prominent international organizations, such as the World Health Organization, UNICEF, and numerous non-governmental organizations (NGSOs) working to promote healthcare, reduce stigmatization of mental health, and promote healthy physical and social-emotional development of children through direct provision of health care, policy, advocacy, and research. Two important organizations internationally focused on addressing trauma include the Somatic Experiencing™ International (SEI)  – an organization dedicated to addressing trauma through culturally responsive professional education, training, research and outreach – which operates in 33 countries, and the International Society for Traumatic Stress Studies (ISTSS) which is dedicated to sharing information about the effects of trauma and brining clinicians and researchers from around the world to advocate for the field of traumatic stress. 3. Where this is not in place, for example in countries like the US and others, promote parity of mental health benefits in healthcare; widen the range of reimbursable, evidence-based trauma services; and extend treatment limits and opportunities for enhanced mental health care. A recent article comparing mental health in nine countries reports that Luxembourg and Norway are among the leading countries providing comprehensive mental health care, offering substantial inpatient and outpatient resources. Germany has also prominently advocated for decades for community-based mental health care and more recently developed a program where refugees are trained as counselors to assist newly arriving refugees. In Australia, treatment for psychological ailments was the leading reason for patient visits, and in an effort to reduce death among mentally ill individuals, the country initiated online resources for therapy. In many other countries howeverpeople are not able to access the care they need because of restricted mental health benefits (if they exist at all) or severe stigmatization and societal repercussions (Rodrigues-Cayro, 2017).

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4. Promote efforts to destigmatize traumatic experiences and mental health issues. In many cultures around the world, stigma related to mental health is severe and has significant repercussions for accessing necessary treatment. Erwin Goffman, an American sociologist, articulated the point clearly in a landmark study of stigma: “There is no country, society or culture where people with mental illness have the same societal value as people without a mental illness.” (Rossler, 2017, p 1251). Argentina, despite many historical human rights violations, has recently worked diligently to destigmatized mental illness. In the US, there is a growing movement in the ACEs field to change language from “what’s wrong with you” to “what happened to you” regarding people’s experiences of trauma and the related and manifest symptoms. 5. Invest in reducing health disparities related to trauma among indigenous, marginalized, and disenfranchised populations. This includes recognizing and addressing the disparities not only within a country but between wealthy and poorer nations. The COVDI-19 vaccine offers a stunning example of how countries with more capacity and more resources can improve the global condition and eliminate the pandemic through redistribution of resources, as supported in principle (since the pandemic had not yet happened) by the UN Millennium Development Goals (UN[f], 2015).

7.5  Conclusion COVID-19 has unleashed a powerful and global illness and produced significant trauma around the world. But at the same time, and because of the development and extensive technological uptake of global communications, it has also brought us closer together with a similar or shared lived experience and understanding of trauma. Despite the wide diversity of conditions and experiences across the world and the often maligned (but true) misuse of social media for disseminating misinformation, the pandemic has showed us our inter-dependency and accentuated the fact that what happens in one place is both directly and indirectly related to what happens elsewhere (globalization); that we share a common experience and now better understanding of trauma (ideology); and that for better or worse, we are in this together. We are at and can use this inflection point– a point in time unique in human history – to take advantage the immense benefits of global communication platforms to educate and change hearts and minds, continue to destigmatize trauma specifically and mental health more generally, redistribute resources to places most in need, and advocate (once again and more ardently) for the basic principle of supporting the health and dignity of all people, regardless of race, religion, location, or wealth (human rights). In this way, we can see and experience that what appears to be three unrelated topics – globalization, ideology, and human rights – are in fact inextricably linked and at the heart of our humanity.

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academic, and non-profit environments. She is currently a health services research and program evaluator for the SUNY Downstate Department of Geriatric Psychiatry, Geriatric Workforce Education Program. She also specializes in trauma healing at the individual and organizational levels with expertise in somatic experiencing, polarity craniosacral, and massage therapies. Rebecca Stahl, JD is Staff Director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of Baltimore School of Law. Rebecca previously represented children in child welfare cases in Los Angeles County and Tucson, Arizona. Ms. Stahl was a Fulbright Scholar in New Zealand and earned a Master of Law degree from the University of Otago in Dunedin, New Zealand and studied the role of lawyers for children in family court cases. Rebecca has presented at a variety of international conferences focused on children’s rights and family law on topics ranging from the role of lawyers for children to trauma. Ms. Stahl coauthored, Representing Children in Dependency and Family Law: Beyond the Law, a book regarding the psychological issues lawyers for children need to understand to better represent their child clients and has published articles on the role of children’s representation, including a recent one on trauma, published in October 2020 in Family Court Review.  

Chapter 8

Ideology, Social Justice and Global Homelessness Yvonne M. Vissing

Abstract  Child and youth homelessness is a preventable, global problem that I have studied using both qualitative, quantitative and policy research for several decades. Causes for child homelessness are varied. Sometimes their homelessness is part of micro-level family constellation problems stemming from poverty and economic distress. Family dysfunction, child abuse, neglect, substance abuse, physical or mental illness may be contributing factors leading to homelessness. Other times homelessness is a result of community problems, such as the lack of available, accessible, affordable housing, inadequate employment opportunities and compensation, or lack of health, education, transportation, legal or social services. Macro-­level state and regional contributions to the rise of homelessness may include war, gangs, violence, famine, environmental challenges and climate change. Children may experience homelessness as they live with family members or guardians. Conversely, many children are unaccompanied, refugees, or asylum-seekers who experience housing distress alone, without the benefit of guardians or caregivers. In cases of maltreatment, homelessness results from fleeing dangerous situations. My book, Changing the Paradigm of Homelessness (Vissing 2020) explores dominant approaches to how homelessness is addressed in the US. These include volunteerism, philanthropy, government intervention, business approaches, and paradigms that are money-driven, housing-driven, criminal justice-driven, employmentdriven, education-driven, and service-driven. The chapter proposed for the book will expands upon the paradigm alternatives and focus them on the global challenges that homeless children face. A new typology of global youth homelessness will be developed. A UN Convention on the Rights of the Child human dignity paradigm is advocated within a complex systems paradigm. Keywords  Asylum-seekers · Children · Child abuse · Climate change · Family dysfunction · Homelessness · Global challenges · Global youth homelessness · Y. M. Vissing (*) Department of Healthcare Studies, Center for Childhood and Youth Studies, United Nations Convention on the Rights of the Child, Salem State University, Salem, MA, USA e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_8

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Human rights · Mental illness · Paradigm change · Poverty · Refugees · Social justice · UNCRC

8.1  Overview Housing is the central aspect of peoples’ lives most likely to show access to social justice. Housing is fundamental to being safe, to having a place to sleep, get clean, store foods, cook, and create stability for one’s family. Having sustainable housing helps people to build neighborhoods, communities, and to seek employment and education. Housing is directly associated with one’s health and security. Secure housing is essential for children’s development and is antithetical to their physical, emotional, and social wellbeing. Housing and homelessness are going to become increasingly important social justice issues in the years ahead because of demographic factors. The United Nations (2021a) reports that the world’s population is expected to increase by 2 billion persons in the next 30 years, from 7.7 billion currently to 9.7 billion in 2050 and could peak at nearly 11 billion around 2100. They identify that this dramatic growth is being driven by increasing numbers of people surviving to reproductive age, accompanied by major changes in fertility rates, increasing urbanization, and accelerating migration. These trends will have far-­ reaching implications for generations to come. More than half of global population growth between now and 2050 is expected to occur in Africa; China and India are the nations with skyrocketing population growth. Add in the fact that today most people in the world live in poverty. 85% of the worlds live on less than $30 per day, two-thirds live on less than $10 per day, and every tenth person lives on less than $1.90 per day, a figure referred to as extreme poverty (Roser & Ortiz-Ospina, 2013a, b). This means that as challenging as things are for people now, we can expect that homelessness, poverty, hunger, and other social ills are going to increase as the world’s population grows. A survey of 45 countries by the World Justice Project (2018) found that access to justice was related to housing. Yet access to justice for the right to housing is commonly ignored. Social justice refers to equal rights, equal treatment, and equal opportunities for all people (San Diego Foundation, 2021). When assessing States’ performance in providing access to justice for fundamental human rights, the right to housing is not among the human rights considered (United Nations, 2019). The 2030 Agenda for Sustainable Development lists targets and indicators for access to justice under Goal 16, but does not consider any aspect of access to justice for the right to housing. The Guiding Principles on Business and Human Rights have been applied to the responsibilities of businesses to ensure access to effective remedies, but the world’s largest business, residential housing, has been almost entirely ignored (United Nations, 2019). Homelessness has become a worldwide problem, in rich and poor nations, in urban as well as rural areas. There are many causal factors associated with its creation, and while they may manifest in unique ways in particular counties, the underlying factors are often quite similar. This chapter

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provides a set of paradigms that contextualize global homelessness. This chapter takes an explicit focus on addressing homelessness globally for children. Understanding their causal factors helps to inspire solutions that will safeguard individuals’ access to social justice.

8.2  Ideological Nurturing of the Acceptance of Homelessness We have choices about how we will view homelessness and people who lack housing. One option is to view housing as a human right and a form of social justice in which communities have a responsibility to ensure that all citizens have decent housing. But a more common view seems to hold that homelessness is inevitable. Moreover, there is a view that people who are homeless did something “wrong” that resulted in their housing distress. They are blamed for their failure or inability to do things “right” so they have stable, secure housing and often treated in demeaning ways as a result. How we think about housing and those who don’t have it is fundamental to our understanding of the phenomenon of homelessness. Today’s housing crisis is “a ticking time bomb that’s only going to get worse”, according to a Harvard University study (2018). Homelessness has become a normalized feature of many societies. Homelessness has become an entire industry, one that has ensured a steady production of homeless people, as well as a plethora of disjointed social services that often pathologize individuals instead of housing and helping them. Homelessness organizations don’t eradicate homelessness  – they manage it through what is called the homelessness industrial complex. Entire networks of professions have been built around homelessness. Homelessness, especially child and youth homelessness could be prevented if communities and societies really wanted to invest in that outcome. While organizations ostensibly exist to help homeless people, they are not designed to actually eradicate it. If homelessness was eliminated, organizations would cease to exist and service workers would lose their jobs. Therefore, there is a structural dis-incentive to actually getting rid of homelessness. Causes of homelessness are largely social, systemic and people end up without housing due to constrained forces over which they have virtually no control. Such facts don’t seem to get in our way of refusing to let go of the assumptions that belie our notion that there is something fundamentally flawed about people who become homeless. With respect to child housing issues, there is a dominant view that it is the parent’s obligation to make sure their children have a home – not the governments. Governments and good-hearted people accept the view that homelessness is caused by dysfunctional people, especially those who have mental illness or use substances. Stereotypes of homeless people permeate the media and public mentality. Say the word “homeless” are chances are high that these pictures come to mind – single adult, men, alcoholic, drug abuser, dirty, lazy, don’t have a job or want to work, lives on the dole, may be criminal, violent, or likely to steal, mentally ill, shopping cart filled with black plastic bagged possessions, unhealthy, bad teeth, inappropriate or outlandish behavior, uneducated, inarticulate, not trustworthy, got

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lice or disease they could spread to us, sleeping on the sidewalk or places they shouldn’t, and the list goes on. These stereotypes of course do not reflect the realities for most people who experience homelessness in all of its facets. Data puts us squarely confronting the “real vs ideal culture” debate. We are regularly confronted by data, hard facts about the sorry state of the economy as it pertains to the poor and middle classes, yet we tend to believe that things aren’t really so bad. When we look at those who are suffering, we may know that times are tough but we justify our denial of truth because not everyone falls to the skids. For those who do, there is a tendency to believe they had a hand in the creation of their own misery. Humans rely on biased sets of cognitive processes to arrive at a given conclusion or belief (Friesen, Campbell & Kay, 2915). This tendency to cherry-pick and twist the fact to fit with our existing beliefs is known as motivated reasoning. Some scholars think we are hard-wired to believe what we want to believe. People routinely use mental shortcuts to understand what happens around them; there are so many things occurring in the world simultaneously that we don’t make or take time to examine them. We tend to use quick and largely unconscious rules-of-thumb to determine what we should believe. These include the availability heuristic where we overestimate the frequency of an event when that event is more “available” in our memory – so if we see a news article about a homeless person being mentally ill, we tend to believe they are even though most homeless people are not mentally ill. Sometimes we rely upon emotional reasoning to justify or defend a conclusion that we’ve already drawn based on our emotions. We are more alert to information that justifies a position we already hold in a process called confirmation bias. It’s also harder to know what facts are these days, since in the media and everyday conversation “the capacity to inject poison into the political bloodstream — in the form of lies and falsehoods, crazed conspiracy theories, smears and dehumanizing attacks — is unprecedented”. Our biased ideology is reflected in a recent article that listed the “5 things that people get wrong about homelessness” (Ruiz-Grossman, 2018). Our common misperceptions include: (1) It’s easier to look at the people on the streets as the problem instead of a system that is broken; (2) It’s easier to think that people who are homeless are addicts instead of thinking that they might be like you and me; (3) It’s easier to think that people become homeless because they have substance problems or mental illness, not because we don’t have a system in society to support people having a mental health crisis or a substance use issue; (4) It’s easier to think that if we just gave people jobs they wouldn’t be homeless instead of looking at the fact that most homeless people work, at least part-time; and (5) It’s easiest to think that homelessness is their fault instead of them being good, decent, hard-working people who are more like us than different from us. Blaming homeless people for their lot in life masks the role social structures play. It hides how the criminal justice system swallows up poor people, how healthcare systems underserve the poor and mentally ill, and that housing markets that don’t provide enough safe and affordable options. Framing homelessness as a personal pathology, not a social one, reinforces the legitimacy of the industry and places the blame for housing deprivation on the individual. The economic and

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personal tragedies we are creating for children by our homelessness policies are not in anyone’s best interests. Options are available. There are a variety of different paradigms we could be following, alternative models, approaches, systems, and ways of contextualizing and addressing poverty and homelessness. It’s time to take a thoughtful, considered look at them. It’s constructive to dream about other designs that may be worth pursuing. All of them need development in order to see if their outcomes will be better than the approach we’re taking now. It could be that there is no one-size-fits-all way to revamp our national poverty and homelessness prevention initiative. The alternative paradigms that we are going to highlight in this book are seeds to be planted, nurtured, to see what together we can grow that would be good for us as individuals, and for us as a society. Let me get right to the point – how as a world we are addressing homelessness isn’t working and unless we change the course of action it’s going to get much worse. Now, this isn’t new news – those in-the-know have been predicting this for at least half-a-century. This chapter attempts to unravel some of the complexity of global homelessness so we can have a common language to talk about, and hopefully do something about, its preventable increase.

8.3  Right to Housing Is Protected in Human Rights Treaties Homelessness is a violation of international human rights treaties and premises that underly social justice. Housing is protected in treaties starting with the Universal Declaration of Human Rights (UDHR) and carried through in treaties and United Nations positions to the current day. Here are explicit statements ensuring the right to housing in human rights treaties: Universal Declaration of Human Rights  Article 25.1 states that: “Everyone has the right to a standard of living adequate for the health and well-­being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” Convention on the Elimination of All Forms o Racial Discrimination  Article 3 states: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” • Article 5 (e) (iii) obliges States “to prohibit and eliminate racial discrimination in all of its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of … (e) … (iii) the right to housing”.

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International Covenant on Economic, Social, and Cultural Rights  Article 11.1 states that: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.” • Article 2.1 states that: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” • Article 2.2 states that: “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Committee on Economic, Social and Cultural Rights, General Comment No. 4 (1991)  On the right to adequate housing, para. 7, it notes that adequate housing was recognized as part of the right to an adequate standard of living in the 1948 Universal Declaration of Human Rights and in the 1966 International Covenant on Economic, Social and Cultural Rights. Other international human rights treaties have since recognized or referred to the right to adequate housing or some elements of it, such as the protection of one’s home and privacy. The right to adequate housing is relevant to all States, as they have all ratified at least one international treaty referring to adequate housing and committed themselves to protecting the right to adequate housing through international declarations, plans of action or conference outcome documents. • The United Nations Committee on Economic, Social and Cultural Rights has underlined that the right to adequate housing should not be interpreted narrowly. Rather, it should be seen as the right to live somewhere in security, peace and dignity. The characteristics of the right to adequate housing are clarified mainly in the Committee’s general comments No. 4 (1991) on the right to adequate housing and No. 7 (1997) on forced evictions. International Covenant on Civil and Political Rights  Article 12 states that: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own.” • Article 17 states that: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”

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Convention on the Elimination of All Forms of Discrimination Against Women  Article 14.2 states that: “States Parties shall undertake all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development and, in particular, shall ensure to such women the right … (h) to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications.” Convention on the Rights of the Child (1989)  Article 16.1 states that: “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.” • Article 27 states that: “1. States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. 2. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development. 3. States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in the case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.” International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families  Article 43.1 states that: “Migrant workers shall enjoy equality of treatment with nationals of the State of employment in relation to … (d) Access to housing, including social housing schemes, and protection against exploitation in respect of rents.” Convention on the Rights of Persons with Disabilities (2008)  Article 2 of the gives the following definition: ““Reasonable accommodation“ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.” • Article 5.3 states that: “In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.” • Article 9.1 (a) states that: “To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, (…). These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia: (a) Buildings, roads, transportation and other indoor

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and outdoor facilities, including schools, housing, medical facilities and workplaces.” Article 9.2 states: “States Parties shall also take appropriate measures to: (a) Develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public; (b) Ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities. [….]” Article 19 states that: “States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement. (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.” Article 22.1 states that: “No person with disabilities, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence or other types of communication or to unlawful attacks on his or her honour and reputation. Persons with disabilities have the right to the protection of the law against such interference or attacks.” Article 28.1 states that: “States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability.” Article 28.2 (d) states that: “States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures:… (d) To ensure access by persons with disabilities to public housing programmes.”

There are also housing protections in international humanitarian law, such as the Convention Related to the Status of Refugees, the Geneva Convention Relative to the Protection of Civilian Persons in Times of War. There are social justices housing protections in international criminal law, seen in the Rome Statue of the International Criminal Court or the International Convention on the Suppression and Punishment o the Crime of Apartheid. Regional human rights laws may also address housing

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and homelessness. There are a variety of United Nations declarations that address housing and homelessness, there are housing considerations found in international labour standards, and in the World Health Organization standards. In sum, housing has become a central focus of social movements and declarations of human rights around the world. Housing justice protections include: protection against forced evictions and the arbitrary destruction and demolition of one’s home; the right to be free from arbitrary interference with one’s home, privacy and family; the right to choose one’s residence, to determine where to live and to freedom of movement.; the right to adequate housing contains entitlements, such as security, housing/land restitution, equal/nondiscriminatory access to adequate housing, and participation in housing-related decision-making at the national and community levels. Adequate housing must provide more than four walls and a roof. For housing to be adequate, it must, at a minimum, meet the following criteria: Security of tenure, since housing is not adequate if its occupants do not have a degree of tenure security which guarantees legal protection against forced evictions, harassment and other threats. Adequate housing standards include the availability of services, materials, facilities and infrastructure’ housing is not considered adequate if its occupants do not have safe drinking water, adequate sanitation, energy for cooking, heating, lighting, food storage or refuse disposal. Housing must be affordable’ it is not considered adequate if its cost threatens occupants’ enjoyment of other human rights. Adequate housing must guarantee physical safety, provide adequate space, protection against the cold, damp, heat, rain, wind, other threats or hazards. Housing must be accessible, and is not considered adequate if the specific needs of disadvantaged and marginalized groups are not considered. The location of housing is important, since housing is not adequate if it is cut off from employment opportunities, health-­ care services, schools, childcare centres and other social facilities, or if located in polluted or dangerous areas. Housing is not adequate if it does not respect and take into account the expression of cultural identity. People must be protected from forced evictions. The Special Rapporteur has found that in all countries, the right to housing is understood by rights holders essentially as it is defined under international human rights law: the right to live somewhere in security, peace and dignity (UN, 2021a, b, c). So why, if there are all these treaties and protections for people’s housing, is homelessness increasing and so hard to prevent? A central problem concerns how homelessness is defined.

8.4  Definitions of Homelessness A global consensus on the definition of global homelessness is emerging (Busch-­ Geertsema et al., 2016). Developing a standard definition is important because as Rossi notes, the term “homeless” is ambiguous and can refer to different things. It is commonly assumed that people who are homeless are poor, but this is not always the case. There are many different levels of poverty, and definitions of poverty vary widely and are a product of social construction and agenda-picking. People who are

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not poor could become homeless when confronted with certain types of situations, such as war, fire, hurricanes, environmental catastrophes. Busch-Geertsema et al. (2016) advance a Global Homelessness Framework as a means of providing a frame of reference for cross-national engagement in this field and recommend a relatively narrow definition of homelessness be employed. Current data is deemed insufficient to generate a comprehensive and accurate worldwide enumeration of homeless individuals. They recommend a definition that focuses onpeople without any form of accommodation (the ‘unsheltered’ group who are sleeping rough or in places not intended for human habitation) and those living in temporary or crisis accommodation specifically provided for homeless people. Designing a universal definition of homelessness would be useful because most countries and organizations do not use the same terms for describing homelessness or housing distressed situations. The term ‘literally homeless’ is often used to denote the people on the streets, or in other similar settings, such as in abandoned buildings, in make-shift structures, or in parks. This group of people tend to be visible, which results in the public thinking that all homeless people are of this type. But this is not necessarily the case. People who are visibly homeless tend to be the minority when considering all people who are homeless, but stereotypes of all homeless individuals get associated with those whom the public observe sleeping on the street, panhandling, or toting their meager possessions. There is a difference between ‘unsheltered homeless’ and ‘sheltered homeless’. Unsheltered homelessness may be referred to as ‘rough sleeping’ or ‘rooflessness’. Rough sleeping may also refer to lying down on the street, under a bridge or in a public place to sleep at night; temporary, seasonal short or long term. Further designations include pavement dwelling in which some very rudimentary shelter is constructed where a person may “live” for longer periods of time. These constructions could be made of cardboard, cloth, wood, or plastic. There is squatting, which refers to staying in the same derelict building or dangerous, dwellings on a regular basis. People could stay on boats or other floating platforms, live underneath bridges or highway underpasses, or places without security or services and which fails all tests of adequacy. Sheltered homelessness refers to those individuals who stay in government or NGO run shelters. There are many other persons who are often classified as ‘precariously housed’. This term is often used to denote people living with a family member or friend for lack of alternatives. They may be couch-surfing, doubled-up with others, or staying with others for short-term stays because they have nowhere else to go (Ortiz-Ospina & Roser, 2017). Refugee camps can be described as a form of homelessness. While there may be tents or shelters for them to sleep, these camps are transitory in nature. People living in them do not have the foreseeable possibility of returning home. It can be argued that individuals who are put into detainment centers or institutions could also be considered homeless if their detainment is such that there is no other place for them to realistically return. This may be the case for foster children, those separated from their families, and those put into short-term facilities while long-term placements are located. Therefore, while there may be some amenities for their comfort and

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survival that are better than rough housing on the street, people still lack the security of adequate housing as defined in human rights treaties (Brannon, 2019; Vissing et al., 2020). The normative type of housing in one’s country may influence how homelessness is defined. Housing types, the structures that they are made out of, how big they are, how close together they are, how tall, how many people live in a unit, or in nearby units, all influence our expectations about what housing is supposed to be like. In affluent rural areas, homes may be large with many rooms and not located near each other. In the city, homes may be apartments or flats, small in size, in buildings that are tall and in which many other families live. Many similar units are very close by. Whatever the norm is influences the type of houses that people expect to have. If individuals in a community commonly live in homes that do not have heat, electricity, or indoor plumbing, not having those amenities may be perceived as adversely as when someone lives in an area where having access to them is the norm. Many definitions of homelessness focus on location. Locations range from staying in shelters, on the street, in one’s car, in tents or campers, in non-traditional locations, with friends, relatives or acquaintances, doubled (tripled or quadrupled) up with others, having roommates since one can’t afford one’s own place, bouncing around motels, in tunnels under highways, on the beach, in the forests, in alleys, in caves, or underground areas beneath buildings, to name a few. If someone is in foster care, jail, hospital or a residential facility, are they homeless? What about truckers who live in their cabs and have only postage boxes for mail? Are students who live in dorms and have no other home homeless? The consensus isn’t clear when it comes to location as criteria for establishing a homeless designation. In some communities if a family is living in a vehicle or couch-surfing, they are not considered homeless because they do have shelter, whereas in other areas these would be criteria for a designation of homelessness. Other definitions of homelessness consider the amount of time that someone is without stable housing. Temporally, there is chronic homelessness that can last years, short-term homelessness that may be days, weeks or months in duration, or intermittent homelessness when housing dislocation occurs unpredictably or periodically (like during certain times of year) (Vissing, 1997). When someone is homeless, they may be uncertain how long the housing distress is going to last. Long-term homelessness gets viewed differently than short-term homelessness. There is an assumption that people who experience short-term housing dislocation aren’t “really” homeless. How many days of being homeless are enough to destroy someone’s sense of stability? Such things are unclear. There are situational factors to consider in our definition of when someone is homeless or our willingness to help. There are “acts of God” that render 14 million people a year homeless from fires, hurricanes, earthquakes, tsunamis or natural disasters (Suliman 2017). There are “acts of man” that may force people to become homeless, such as war, political conflicts, poverty, gas explosions, electric, smoking or cooking fires that force people out of their homes. There are other acts of man such as urban renewal, residential gentrification, or destruction of available housing

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to make way for businesses or fancier housing units that leave people with no affordable places to go. People may have personal problems that contribute to their becoming homeless. Health problems, injuries, physical, cognitive, or mental illnesses can result in homelessness. There are those with addiction problems that resulted in their losing their homes. And then there are situations such as divorce, job loss, domestic violence, criminal justice problems that render people homeless. When people become homeless due to “acts of God” they may be perceived differently than those who are blamed for their homelessness because of personal problems. Parent-child relational problems often force children into homelessness. Children may flee homes because of abuse, poverty, maltreatment, or the family’s inability or unwillingness to care for them. Parents may demand that youth live in “my way or the highway” situations or order them to “get out!” Maybe young people may prefer the uncertainties of the street to the known certainty of maltreatment at home. If a youth is abused, they may receive more sympathy and support for them and their housing distress viewed differently than someone who lost housing due to “personal problems” or “personal choices” who won’t “straighten up and fly right” (Vissing, 1997). It is therefore difficulty to define homelessness because of many multidimensional and intersecting factors. The Ruff Institute of Global Homelessness (2021) of DePaul University notes that homelessness has many dimensions, most of which are tied to social, cultural, and economic norms. For this reason, they observe that there will likely never be a “simple” definition of what it means to be homeless. Without a common organizing principle or framework, competing definitions can limit the usefulness of cross-cultural conversations. For example, Azerbaijan defines homelessness as: “The average annual number of people who lack a shelter for living quarters as a result of natural disasters, who carry their few possessions with them and who sleep in the streets, in doorways or on piers, or in any other space, on a more or less random basis.” Nearby Turkey’s definition is simply: “People living on the streets.” Armenia, which borders them, has no official definition of homelessness at all. For instance, even in a single country such as the United States, its Department of Housing and Urban Development, Department of Education, and National Health Care for the Homeless Council (2018) use different definitions of who is considered homeless, which results in some people being able to access services while other people in need of housing supports cannot. The Australian Bureau of Statistics (ABS, 2012) defines homelessness, for the purposes of the Census of Population and Housing, as the lack of one or more elements that represent ‘home’. These include: when a person does not have suitable accommodation alternatives they are considered homeless if their current living arrangement, if they are in a dwelling that is inadequate, if they have no tenure where they live or if their initial tenure is short and not extendable, or if they live somewhere that does not allow them to have control of, and access to space for social relations. Globally, homelessness may thus be defined quite differently from one country or region to another (Ruff Institute, 2021; Vissing et  al., 2020). The implications for this definitional variation are huge.

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8.4.1  Why Are Definitions Important? Definitions of homelessness are thus complicated determinations that combine a) what we see, b) who we count to be homeless, c) why we think homelessness has occurred, and d) what we do about it. From a global perspective, we know that people increasingly migrate across borders from one country or community into another, which increases the demand for affordable, available housing (Pew Charitable Trust, 2016). This trend, along with the growing global population rates, are going to exacerbate the rise of homelessness. Definitions matter because they determine what we will measure. What, and who, we measure will influence our perception of the problem, why we believe it occurs, and what policy interventions we create. Different definitions of homelessness globally mean that we are measuring different things and different people in different countries. It means that we do not have a common understanding of the actual numbers of housing distressed individuals. It also means that the types of preventive and recovery interventions may vary significantly. Governments and organizations use definitions to determine who is considered homeless and if they qualify for services. If people do not fit a government or organization’s definition of homelessness, they services will not be provided. Individuals are left on their own to negotiate how they will survive. Definitions influence if homeless people will be counted. The numbers counted determine if leaders or the public will consider whether the amount of homelessness is big enough to do something about. If they decide it is, this may dictate funding for programs to help them. And back to the definition issue, if people who need help don’t qualify for the program for some reason, they are out of luck and on their own. As this pertains to children, homeless children are often invisible to the eye. The reasons for this are many. Major reasons for the invisibility of homeless children include the following: One, homeless people who typically get the public’s attention are older, single adults who live on the street that may have substance abuse problems or experience physical or mental illnesses. Homeless children tend to be out of sight, and therefore out of mind (Vissing, 1997). Two, children are often not counted as individuals  – they are counted within the context of families (Vissing, 2021). Three, families tend to be the unit that organizations use to count the number of homeless members. But if a family has a young child that is not in school, there may be no institution readily available to know about them. Family homelessness typically is counted when they are in contact with government or social services agencies. If a family does not reach out for assistance, or is afraid to apply for it for some reason, officially for the homelessness counting purpose, they do not exist. Four, many children around the world are unaccompanied without a guardian who will care for them. This may be because a)parents are dead, b) because families are incapable of caring for the child, c) because the child has been pushed or thrown out of the family, d) because children are neglected or abused at home and they have fled for their own safety, e) because the family has encouraged the child to leave because they will have a better chance of survival on their own, f) because the child wants to

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live a lifestyle that parents disapprove, g) that poverty, crime or environmental problems have become so prevalent where they live that they choose to go elsewhere to see if life could be better for them. Moreover, unaccompanied or homeless children may find that if they are identified by authorities they could be forced to be put into institutions or facilities “for their own good” that they don’t want to go to. While some governmental or organizational programs are of good quality, some are not. As youth seek independence and wish to use their agency to make decisions over their lives, they may not want organizational intervention of certain types and resort to relying upon their own and others in their network. They are therefore not counted, and it is easy to label them as having personal problems rather than their housing distress being regarded as a social and systemic problem. Addressing child homelessness as a system problem would be much more beneficial for them rather than “blaming the victim”. Homelessness is a process, not just an outcome. It seldom occurs overnight, unless there is a fire or natural disaster. If it is a process, where is the exact cutting point between people who are “going through hard times”, living in “housing distress” and “barely making ends meet” compared to folks who have crossed into what one would consider to be homelessness? Counting just people who are in shelters or living on the street count only those identifiable people who have fallen and hit bottom, not those who are invisibly homeless or in the process of falling downward. Using a more fluid definition of homelessness or housing distress can result in dramatically different numbers.

8.5  Rise of Global Homelessness Varying definitions will lead to differences in what is counted and how counts are conducted. Definitions of homelessness influence research methodologies, operational definitions of variables, samples of interest, how data is collected, the reliability and validity of the data, the way the data is interpreted and reported. This in turns influences public perception of the phenomenon, its priority, its funding, and organizational policies, practices, and procedures. Countries use a wide variety of data collection methods, with varying degrees of reliability. Sometimes, these methodologies differ even within country borders. While this might not necessarily be a bad thing - as national numbers are often less detailed than state or city data - this discrepancy can lead to conflicting information (Ortiz-Ospina & Roser, 2017). Getting an accurate picture of global homelessness is extremely challenging. Definitions of homelessness vary from country to country. Census data is typically collected based on household and, while most census data takes into account those living in shelters and receiving government aid, census takers struggle to count the “hidden homeless” – those who may be residing in inadequate settlements such as slums, squatting in structures not intended for housing, couch surfing with friends and family, and those who relocate frequently. The Millennium Alliance for Humanity and the Biosphere (MAHB, 2021) reports that Nigeria has one of the

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highest homeless ratio to population figures, at 16.58%; Honduras at 12.38%, Bosnia at 3.73%, the UK at .48% and the USA at .17% China has a population of 1.3 billion people of which 200 million are considered to be homeless. The website, Homeless World Cup provides statistics about how many people are homeless in most countries on every continent. Their statistics correspond to the definition of homelessness used in that country, so while their numbers are interesting, they must be interpreted with the definitional lens employed. So how many people globally are homeless? The Institute for Global Homelessness (2019) Better Data Project has created a system to compare the rates of homelessness around the world, and it is likely the most comprehensive set of estimates to date. However, the general consensus is that any number given is likely an undercount. This is due to the different definitions, competing methodologies, how homelessness is perceived by the community, and how it is reported by individuals who are experiencing it. Accurate estimates are not available across all countries and all groups. In many countries it is common to report together the ‘literal homeless’ with the ‘precariously housed’ (Ortiz-Ospina & Roser, 2017), while those who are precariously housed or not in shelters or visible on the streets never get enumerated. If people who live in housing distress and inadequate housing were included, the number of people who have not received housing social justice would skyrocket. For instance, the organization Make The Shift (2021) reports 150 million people globally are homeless, but the United Nations (2020a, 2020b) reports that 1.8 billion people are housing insecure worldwide. But these figures are guesses with no real methodology to back them up. Young people globally are at highest risk of becoming homeless. Twenty-five per cent of the world’s urban population live in informal settlements. Homelessness and forced evictions are on the rise in virtually every country. In the United States of America, over two million households are evicted from their homes every year – 4 per minute. The number of homeless people, therefore, could be much higher than the oft cited 150 million people, depending on how and when they are counted. Habitat for Humanity (2021) notes that a family is at risk of homelessness when they spend over 30% of their income on a home. Even before the coronavirus pandemic, more than 17 million US households were paying half or more of their income on a place to live. Yale University (2021) estimated that two percent of the world’s population is homeless. While two percent doesn’t sound like much, it means that 154 million people live on the street in temporary dwellings, refugee camps, and other transitory and often dangerous conditions. It is estimated that well over a billion people currently live without adequate shelter and by 2050 that figure will be 3 billion people. “In reality, it’s likely that the number of homeless people around the world is even higher than that (Brannon, 2019). If the world were to accept Australia’s definition of ‘homelessness’ and include everyone with inadequate shelter, there would be over 1.6 billion homeless people scattered across the globe: that’s around 20 per cent of the world’s population. Homelessness in Australia is more than lacking a roof over your head, it is also the absence of those features associated with “home”: permanence, security, and the freedom to come and go (Hamad, 2017).

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The United Nations (2020a, 2020b) issued its first global resolution on homelessness in 2020. It stated that homelessness is a serious violation of human dignity, homelessness that has become a global problem, affecting people of all ages from all walks of life, in both developed and developing countries. If globally we were to accept Australia’s broad definition of homelessness, and agreed with the UN’s resolution that homelessness is a violation of people’s rights, then nations (especially those who have ratified human rights treaties) would be obligated to do something major about it. In a time with arguments over what services should be funded during times of austerity and economic constraints, it is observable that nations select limited definitions of homelessness. Broad definitions of housing distress will result in the identification of many people who are homeless or on the verge of homelessness; limited definitions of homelessness cut the number of people who have to be counted. This results in fewer people needing (supposedly) to be helped, which means governments and organizations will need to put less resource into servicing them. The problem is, just because one chooses to use a limited definition of homelessness it doesn’t limit the number of people who are actually in need. They exist, whether we count them or not. Homeless children are often invisible because they are not counted as individuals but as part of family systems. If they were able to access services without parental consent that would improve our understanding about them and create the possibilities for improving their wellbeing (Ensign & Panke, 2002; Stewart et al., 2010; Wang et al., 2019). As a generalization, in a US study of homelessness I conducted there was one community in a rural state that was very attentive to serving the needs of its homeless citizens. Because people could rely upon the town and its organizations to help them, it became a magnet for other homeless people to come there for help. It didn’t take long before the open-arms of the community to close down because the requests for need exceeded their ability to serve everyone. Using this example at a global level, countries which provide greater assistance to people in need are likely to become magnets for people in countries that have restricted definitions of homelessness and limited caregiving systems. This will logically spur migration into the “have” c0untries from those from “have not”. Homelessness is now a global problem that is going to become an even greater one as populations rise to demand greater social justice.

8.6  Causes of Global Homelessness The characteristics and causes of homelessness around the world are complex and varied since each country has its own varied economic, social, cultural, and political history. Solutions to this problem will subsequently also be very complex. Considering the future of the planet and its predicted demographic changes, focusing on how to prevent and address homelessness in children and youth (children being defined by the UNCRC as anyone under age 18) is central to this chapter.

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Homelessness is the result of a series of economic and social factors, such as housing policies, social security, education, physical and mental healthcare, government, demographics, and family structure (Fowler et al., 2019; Mago et al., 2013). Factors contributing to the rise of child homelessness may vary by where the child lives and there are always unique variables that should be explored when contextualizing it. A complex systems theory is useful for understanding the intersection and impact of the multifacted variable, but for simplicity’s purpose, six major categories of causal factors have been selected, as shown in Fig. 8.1. These include both macro, or structural factors, as well as micro, or more individualized factors.

8.6.1  War, Violence, and Conflict When a child is exposed to war, homes may be destroyed, parents and family may be injured or die, resources necessary for a child’s sustenance may be unavailable, resulting in homelessness. Gang, terrorist, criminal, or other groups may create a climate of fear and danger for children who may be forced to flee for their lives. Property can be seized and families forced to flee. Some geographic areas experience conflict that doesn’t rise to the official standard of war but nonetheless pose children at risk of losing their families, home, safety and security. Throughout generations around the world, the impact of war and conflict on housing displacement is well documented (Leckie & Huggins, 2011; Seneviratne et al., 2017).

Macro War & Conflict

Cultural & Polical Factors

Economic & Social Resources

Environmental Pressures

Refugee Displacement

Family Dynamics

Fig. 8.1  Factors contributing to child homelessness

Micro

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8.6.2  Environmental Pressures Global warming and climate change are changing geographies and resulting in a variety of environmental catastrophes that may result in a child becoming homeless. As temperatures rise and rains deplete, the ground may become dry, barren, and unable to grow crops. As temperatures become frigid, children may be at risk of health problems and homelessness. Climate change patterns are resulting in fires, floods, tsunamis, hurricanes, tornados, and other environmental conditions that force people out of their homes and into homelessness. The Millennium Alliance for Humanity and the Biosphere (MAHB) (Kuo, 2019) reports that homelessness is an outgrowth of climate disruption, loss of biodiversity (and thus ecosystem services), land-use change and resulting degradation, global toxification, ocean acidification, decay of the epidemiological environment, an economic system based on growth, pressure from increasing population, and resource wars (which could go nuclear). The manifestation of these interactions is often referred to as “the human predicament.” MAHB explains that the rise of homelessness is being driven by the increase of the world’s population. In 2019 the world is supported an unsustainable 7.7 billion people with an annual rise of 1%. T Predictions are for 8.6 billion people by 2030, 9.7 billion in 2050 and 11.5 billion in 2100. The UN estimated in 2005 there were 100 million homeless people worldwide, and that number has skyrocketed in the last 20  years with homelessness becoming an emerging urgent crisis and affects every county in the world.

8.6.3  Cultural, Religious and Political Factors Depending on where children live, there may be cultural, religious, or political factors that either prevent or encourage secure housing. The impact of political decision-­making is huge since governments hold the key to funding allocations (Williams, 2017). The ideologies that different religions and cultures promote about one’s right to housing may be creating a wide range of responses to people in distress. Belief systems influences how willing leaders may be to implement policies and programs that prevent or increase the likelihood of homelessness. There are many different paradigms and perspectives that can impact the way that homelessness in a community or nation is addressed (Culhane et al., 2011; US Council of Mayors, 2020).

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8.6.4  Economic and Social Resources Poverty is a number one contributor to homelessness, as is housing availability, accessibility, and affordability (National Coalition for the Homeless, 2021). Incomes and costs are related; low incomes, little housing availability, and high housing costs increase the chances of homelessness no matter where one lives. The Great Recession of 2008 contributed to the rise of homelessness worldwide (Bainbridge & Carrizales, 2017). The was triggered by a housing bubble, which then constricted capital markets for housing, after which economic stabilization was followed by stagflation or deflation. Flat or decreasing wages in the middle-tolow income groups led to high unemployment. Many governments responded with austerity measures to decrease public spending, which didn’t help the situation (Evans et al., 2010). As this pertains to child homelessness, in many countries children are not legally allowed to obtain their own services or seek paid employment. If they have no guardians or if they have sought independence and are homeless, organizations and governments may, or may not, provide them assistance. Povertystricken areas may predispose young people, especially young men, to travel unaccompanied to new areas to find work. Children may be in positions of carers for their family and leave home to see if they can secure resources to sustain both them and others.

8.6.5  Family Dynamics There are many home dysfunctions and family dynamics that can contribute to someone becoming homeless. Family supports can be a buffer to it as well, as relatives may step up to invite housing distressed members into their homes. Family processes and dynamics significantly impact the presence or absence of homelessness.* This could include economic supports or deficits, abuse or maltreatment, crime, violence, and other issues (Burt et al., 1999; Mayberry et al., 2014; Shinn et al., 2015).

8.6.6  Refugee Displacement Around the world people are fleeing their homes in search of a better, safer life for themselves and their children. When they arrive in their new countries, they may have little more than the shirts on their backs. Many have experienced arduous challenges to arrive at their new destinations. How and where they will be housed is a significant concern and cost for nations and communities. Young children may be

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traveling by themselves and will need even more supportive housing and support services than adults (National Center for Homeless Education, 2021; Oudshoorn, 2018). Macro-level factors have a ripple-out effect on the micro-level. For instance, war, environmental disasters, socio-economic, and cultural-political factors all may trigger problems at the family level, which then go to exacerbate the rise of homelessness in all its forms. Singular causal factors are enough to thrust someone into homelessness, but when there are multiple intersecting causal factors, it will be harder to prevent major housing disruption  – and harder to put into place pieces necessary for one’s recovery.

8.7  Development of Global Homelessness Paradigms Homelessness is increasing worldwide. What we are doing to prevent it from occurring in the first instance isn’t working. When homeless people arrive or come to our attention, as a community we must do something to address it. We have different choices of what those interventions may be. The way homelessness is approached reflects a framework, or paradigm, that embodies commonly accepted views about homelessness, conventions about what direction research about it should take and how it should be performed, and what actions could occur as a result. A country’s national paradigm is based on assumptions and decisions that are not always transparent. What the nation may say may not be reflected into how things are done to prevent homelessness or to help those who experience it. A paradigm is a way that we organize our thinking about something. It’s a lens that filters all the information that we take in and try to make sense of. We see information according to a particular vantage point, when other perspectives are available and possible but we choose to disregard. When we are attached to seeing the world, a situation, or a person in a particular way, that’s all we can see. Theories try to find an explanation for something, but paradigms are even bigger than theories. Think of a paradigm as an umbrella that surrounds a phenomenon. This umbrella shields us from outside elements and keeps us safe, contained. It can have a hole or two in it, but the umbrella is still functional to keeping a person dry – or in this case, our view of homelessness intact. The holes, or areas that are inconsistent with the paradigm’s efficacy, are called anomalies. The more holes or anomalies that occur, the wetter someone will get, the more flawed the paradigm will be regarded, until the umbrella, or paradigm, is deemed to be no good and a new one is sought. Thomas Kuhn’s groundbreaking work on paradigms (1962) suggested that when researchers adhere to a deeply entrenched paradigm, it invariably ends up reinforcing that paradigm since anything that contradicts it is ignored or pressed to conform to already established dogma. Government, philanthropic, NGO, and other agencies may not be transparent about the paradigm they are advocating, or the domain assumptions that underlie them. Indeed, many people do not think about how they think about things like homelessness. They merely assume that the way they think

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about things is correct, the only logical way of viewing the world. Anyone who thinks differently must simply be “wrong”. Scholars recommend a paradigm shift. Some include a prevention-oriented paradigm to preventing homelessness (Culhane et al., 2011), moving from being heartless to compassionately seeing homeless people as similar to oneself (Betts, 2017), or creating a feminist female-­focused approach (Blackmore, 2015). In my review of homelessness around the world, similar paradigms seem to be employed as those in the US that are explored in my book Changing the Paradigm of Homelessness. However, I am not confident that the model that I am proposig is incusive enough; as a working draft, proposed global paradigms include the following (Fig. 8.2):

Fig. 8.2  Global homelessness paradigm options

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8.7.1  State and Economic Inequality Paradigm This paradigm’s assumption is that the reason people become poor is due to the economic disparity within the country. The bifurcation of incomes into a small segment of the ultra-wealthy and a growing segment of the ultra-poor is occurring throughout the world. While the middle class may be growing in some nations, it is dwindling in others. In a highly skewed economic system where the wealthy keep designing policies and laws to make themselves richer are often at the expense of cutting programs and opportunities for people at the middle and bottom of the stratification ladder (Roser & Ortiz-Ospina, 2013a, b; United Nations, 2021c). People may be working full time jobs and trying to survive but just can’t make ends meet in these kinds of systems. The solution for this paradigm would be to balance the economic flow of money to the population so that there was less of an imbalance between the rich and poor. Family and child homelessness is preventable, but only within societies that make a commitment that “all boats rise”. The problem is that the wealthy are those in positions to make the laws; poor people are not. There must be some motivation and incentives for the wealthy to want to equalize the financial distribution of the state. Otherwise, homelessness can be expected to continue or increase.

8.7.2  G  overnment, Business, and Nongovernment Organization Income and Supports Paradigm In this paradigm, it is assumed that the economic distribution (discussed above) will not be changed and it is up to programs created by government, non-governmental or business organizations to help people who are homeless to receive the services they need to get out of housing distress. Housing, food, healthcare, employment, social services, childcare, and transportation are all needed to prevent people from becoming homeless, or to provide them if they have. Since individuals themselves cannot pay for these services, they depend upon social systems to do so. The solution is for organizations to have more comprehensive services to help children and their families to prevent housing distress in the first order, and to quickly alleviate problems when they do occur. The entire range of services should include all the things that people need in order to have a home, job, education, healthcare, transportation, etc. The services must be available to children independently of their parents and guardians. The problems to this approach are plentiful; the agencies and organizations rely upon their leaders and administrators to create needed services. Whether they will prioritize providing services that could prevent homelessness in the first place is questionable; often targeted systems for limited, specified groups of

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people results in stopping the bleeding for some people but fails to address the larger, structural underlying conditions that led to homelessness. Moreover, this approach requires that people meet certain qualifications in order to obtain aid; if they cannot produce the necessary documentation, no services may be given despite life-crushing need for help. From a child homelessness perspective, organizations are typically designed to provide services to families, and parents are to then deliver help to children. Families are the main target group to prevent child homelessness since children are typically not allowed to secure services on their own behalf without a guardian. Realizing that many young people are on their own, without guardians who will advocate for them, means that rules must be changed so children can get the care they need, or homelessness among young people can be expected to rise.

8.7.3  Available, Affordable, Accessible Housing Paradigm This paradigm assumes that the primary reason that people become homeless is because there is a lack of available, affordable housing that is easily accessible. The solution is to have more available housing units that families can afford. Around the world these houses could take different forms that are culturally sensitive and meet the demands of the environment. They could consist of small apartments in larger buildings, stand-alone structures made of local materials, multi-family units, portable tiny houses, or other innovative types of structures (Vissing et al., 2020). Shelters are not homes. They are designed to be transitory at best for people experiencing short-term housing dislocation. Building more shelters instead of investing in more affordable housing is foolish. The shelter industrial complex is not designed to prevent homelessness, rather it is designed to keep it thriving. The problems are that families may find that their incomes are not large enough to afford the cost of renting or buying homes. Young people who are on their own may not have incomes sources that they can call upon to pay for housing. The state may not have housing allowances for children who are unaccompanied, which puts children at risk of being on the street or surviving as best they can in whatever ways they can. On a second issue, even if there are monies available for their housing, will housing units be available? In many parts of the world there is an insufficient supply of housing to meet the demand for it. Even in residential facilities where young people may find shelter, there may be long waiting lists. Housing for children often requires parent or adult consent and there may be complicated qualification criteria that must be met first. This makes it difficult for children to access housing even if they qualify for it or have the money for it.

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8.7.4  Homelessness as a Crime Paradigm This paradigm assumes that homelessness is a crime and therefore homeless people are criminals. Laws may forbid people living on the street, in cars, or in certain locations. Police may be called upon to tear down tents or shanty-town communities that homeless people construct. Laws may require permits to beg, make it illegal to sleep in public places, make it a crime to serve food to people who are poor or homeless, etc. Law enforcement representatives may be charged with evicting or physically removing homeless people and putting them in jail (National Coalition for the Homeless, 2021). Refugees coming to a new country or community for assistance and safety may be viewed as unwanted intruders and may be sent back to their home country or other places. This puts vulnerable people at terrible risk for future problems (Schwartz, 2019). The solution is to decriminalize homelessness. Making homelessness a crime or giving poor people fines or jail sentences does nothing to stop their housing distress and in fact only goes to exacerbate it. Problems include the following; If families cannot afford the place they are staying they can be evicted and if they have nowhere to go, they could easily become homeless. Children who are homeless are not criminals and treating them like they are will set up a punitive system that makes other negative life outcomes more likely. Once people are caught into the criminal justice and legal systems, they will need to have money to pay for fines, lawyers, court proceedings, and other costs. People may lose their jobs if they are in jail. Giving people a criminal record because they can’t find or afford housing is an unnecessarily stigmatizing and life-disruptive negative outcome. Separating families disrupts the fabric of the family and puts children in situations where instead of being helped, they may actually be exposed to greater harms (Vissing, 2021). Having armed soldiers preventing people to get access to shelter, food, and medical care is another form of criminalization of homeless, desperate persons (Mortensen, 2021).

8.7.5  Family Paradigm This paradigm assumes that the reason that the reason people become homeless is because there is something wrong with them. The causes of homelessness are thus micro or individual, not macro or structural in nature. Homelessness occurs in this approach because people are seen as sick, poorly educated, do not have a job, have substance abuse problems, be mentally ill, experience domestic violence, or have some personal or situational reason for why they become homeless. As this pertains to children, many flee home situations that are pathological in order to survive. If they live in communities or families that are subject to nature catastrophes, crime, or violence, they may flee for their lives. This

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paradigm fails to view that people’s personal problems may be the result of structural problems, not the cause of them. Homelessness breeds depression, anxiety, loss of jobs, poor health, and less opportunities to go to school or seek employment, especially when no childcare is available. The solution is to cast a broader safety net for people in the first instance. Providing available, affordable, accessible resources like education, vocational training, healthcare, counseling, social services, are important to prevent personal and family problems from escalating and getting out of hand. When problems do occur, having appropriate intervention, treatment, and recovery services are essential to make sure people do not become homeless. Services for children who are unaccompanied need to be available and easily obtainable for them. Those exposed to trauma may need additional supports. Problems associated with this paradigm include blaming individuals who have problems in the first instance, or not being able to secure assistance when they occur. Many problems that children and family face are structural in nature; personal problems occur as a result of the structural problems. Blaming the victims as causes of problems that they had no or little control over is counter-productive in preventing or reducing homelessness. The biggest way to avoid this paradigm’s inherent distress modality is to provide comprehensive services and supports in the first instance.

8.7.6  Charity Paradigm There is a long history of social problems being address by religious or charitable organizations. These types of organizations have long alleviated the suffering of millions throughout the ages. They have been fundamental in providing food and shelter for indigent persons. Shelters, soup-kitchens, and alms for the poor have been supported by faith institutions, philanthropic organizations, and NGOs for decades. The solution that this paradigm endorses is for charitable institutions to keep providing more and more services for those in need. The problem with this approach is that charitable institutions cannot do it all; the need far exceeds their ability to cure the problem or assist all those in need. This is why many government and nongovernment organizations developed social service programs. Many of the problems that homeless people confront are systematic in origin and charities cannot dent them. The charitable approach is a bandage-approach; it may momentarily provide some relief but it cannot cure the problem, nor can it adequately address the many needs of the countless number of people who come to them for assistance.

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8.7.7  Let Others Do It Paradigm This paradigm shirks government and organizational responsibility for preventing homelessness in the first order, or doing much to alleviate it and assist those who are homeless. Assuming that the government won’t fulfill its obligations to provide adequate housing for all, it forces the pressure on individuals, local communities, or businesses to help. For instance, businesses like Amazon have been called upon to design housing for workers; increased taxes have been discussed for corporations to support homelessness prevention and recovery programs. The solution this paradigm endorses is for the business community to step-up and give back to those who are vulnerable in the community. It encourages that business transform existing buildings into affordable housing units and to be innovative in creating new forms of housing that will be affordable and sustainable for people. The problem with this approach is to date, it hasn’t worked well. There have been isolated initiatives around the world, and while they may be helpful, there isn’t a coordinated, comprehensive vehicle for accomplishing this goal. Moreover, the function of business is to make money; anything that interferes with the bottom line may be a disincentive for business to pursue.

8.7.8  Human Rights and Dignity Paradigm This paradigm is a social justice approach that relies upon a variety of the UN international covenants, conventions, and treaties to require that housing be made available to all persons as one of their fundamental human rights. Without stable and secure housing, the rest of people’s lives may be disrupted and people will be unable to work to their full capacity. The solution is for every state and community to create programs and housing options so that all people can get a decent place to live. It holds that when a community builds a shelter, it has given up on its commitment to ensure that everyone has a home of their own. It requires cross-fertilization of creative ideas in communities and full investments on the part of all institutions to work together to make sure that all people in the community have a home. The problem with this approach is that while rhetoric is abundant about the need to help the homeless, the reality is that a bare minimum is often done. Some communities fare better with providing resources, but they sometimes become a magnet for people needing services when other areas do not provide for them. There may be a disincentive for communities to invest in people from other communities as a result. Warehousing people in shelters may be acceptable as a short-term, emergency care situation but it is not a long-term solution. Lack of housing is associated with a variety of long-term physical, emotional, social, financial and criminal problems that the community ends of paying for in one way or another. Using a pro-active rather than a reactive approach to addressing the conditions underlying the rise of

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homelessness is a way to help people preserve their dignity; enhance their abilities and opportunities that benefit all.

8.7.9  Social Justice Interventions There have been attempts to honor human rights treaties protecting people’s rights to housing. Such attempts have been hard-fought and often confronted major political, economic, structural, and ideological factors. The World Economic Forum acknowledges that there are innovative strategies being used around the world (Fleming, 2019). But few countries have developed comprehensive strategies to prevent homelessness. However, it is important to acknowledge the efforts of places that have made attempts to view homelessness as a social justice issue. For instance, Scotland has been diligent in infusing human rights into their government and infrastructure, as seen in their children’s human rights policies as well as their attempt to address people who are experiencing homelessness within a social justice context (Goodlad, 2005; Mooney & Scott, 2012). In England, while the government is attempting to curb homelessness, its priority has been on social cohesion rather than social justice. A strong social control emphasis has emerged that uses more of a criminalization of homelessness measure that is more likely to undermine than promote the well-being of street homeless people (Fitzpatrick & Jones, 2005). Decommissioned double-decker buses are being rehabilitated to provide sleeping areas, cafes, and services for people who are homeless (Fleming, 2019), and while that is some support for some people, it does little to prevent homelessness in the first instance. There is a global effort to create what is regarded as social justice in counseling for people who are homeless (Hore, 2013; St & Merali, 2019). In Australia, social justice approaches exist that work towards eliminating youth homelessness with a sole focus on material needs. Unfortunately, they overlook the significance of non-­ material aspects, such as the impact of social exclusion and stigma on individuals’ subjectivities. Overcoming homelessness requires policies and practices that give a greater focus to non-material aspects of homelessness through an emphasis on empowerment, self-respect and autonomy (Watson & Cuervo, 2017).

8.8  Conclusion Homelessness is a growing concern that will continue to escalate unless communities develop comprehensive plans to prevent it in the first order and to provide appropriate intervention, treatment, and recovery options when it occurs. Changing demographic characteristics indicate that we can predict greater housing distress among young people. This is quite disturbing to their psycho-social development

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and health and wellbeing and thus homelessness in youth must be considered a global public health problem. There is no one-size-fits-all approach to addressing youth homelessness around the world. Each state must consider its own demographic, institutional, legal, and governmental situations. Preliminary paradigms have been outlined to consider what all countries have in common regarding their approach to homelessness. For every paradigm considered, there must be proposed solutions in place. For every solution there will be intended and unintended consequences and potential problems. Forecasting what those challenges may be can help communities and organizations to put into place buffers to reduce the impact of those problems.

References Australia Bureau of Statistics. (2012). Homelessness. https://www.aihw.gov.au/reports/ australias-­welfare/homelessness-­and-­homelessness-­services Bainbridge, J., & Carrizales, T. (2017). Global homelessness in a post- recession world. Journal of Public Management & Social Policy, 24. Retrieved from https://digitalscholarship.tsu.edu/ jpmsp/vol24/iss1/6 Betts, J. (2017). People living in vehicles in Silicon Valley. People’s Tribune. December 2017. Retrieved from http://peoplestribune.org/pt-news/2017/11/people-living-vehicles-silicon-valley/ Blackmore, J. (2015). Gender inequality and education: Changing local/global relations in a ‘post colonial’ world and the implications for feminist research. In J. Zajda (Ed.), Second international handbook of globalisation, education and policy research. Springer. Brannon, A. (2019). Homelessness statistics reveal a problem. https://newstorycharity.org/2019/09/ homelessness-­statistics/ Burt, M. R., et al. (1999). Homelessness: Programs and the people they serve: Findings of the National Survey of homelessness assistance providers and clients. US Interagency Council on Homelessness and The Urban Institute. Busch-Geertsema, V., Culhane, D., & Fitzpatrick, S. (2016). Developing a global framework for conceptualising and measuring homelessness. Habitat Internationa, 55, 124–132. https://doi. org/10.1016/j.habitatint.2016.03.004 Culhane, D. P., Metraux, S., & Byrne, T. (2011). A prevention-centered approach to homelessness assistance: A paradigm shift? Housing Policy Debate, 21, 295–315. Ensign, J., & Panke, A. (2002). Barriers and bridges to care: Voices of homeless adolescent youths in Seattle, Washington, USA. Journal of Advanced Nursing, 37(2), 166–172. Evans, G.  W., Eckenrode, J., & Marcynyszyn, L.  A. (2010). Chaos and the macrosetting: The role of poverty and socioeconomic status. In G. W. Evans & T. D. Wachs (Eds.), Chaos and its influence on children's development: An ecological perspective (pp. 225–238). American Psychological Association. Fitzpatrick, S., & Jones, A. (2005). Pursuing social justice or social cohesion?: Coercion in street homelessness policies in England. Journal of Social Policy, 34(3), 389–406. https://doi. org/10.1017/S0047279405008834 Fleming, S. (2019). How to solve homelessness. World Economic Forum. https://www.weforum. org/agenda/2019/12/how-­to-­solve-­homelessness-­poverty-­cities-­urbanization/ Fowler, P. J., Hovmand, P. S., Marcal, K. E., & Das, S. (2019). Solving homelessness from a complex systems perspective: Insights for prevention responses. Annual Review of Public Health, 40, 465–486. https://doi.org/10.1146/annurev-­publhealth-­040617-­013553

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Goodlad, R. (2005). Scottish homelessness policy: Advancing social justice? Scottish Affairs, 50 (first series), 1, 86–105. Habitat for Humanity. (2021). Housing insecurity, https://www.habitat.org/ Hamad, R. (2017). Us and them: What homelessness look like around the world. https://www. sbs.com.au/topics/voices/culture/article/2017/07/04/us-­and-­them-­what-­homelessness-­looks-­ around-­world Hore, B. (2013). Is homelessness a matter of social justice for counselling psychologists in the UK? A review of the literature. Counselling Psychology Review, 28(2), 17–29. Institute for Global Homelessness. (2019). Better Data Project. https://ighomelessness.org/ global-­homeless-­data Kuo, G. (2019) Global homelessness. Millennium Alliance for Humanity and the Biosphere (MAHB). https://mahb.stanford.edu/library-­item/yet-­another-­emerging-­ global-­crisis-­homelessness/ Leckie, S., & Huggins, C. (2011). Displacement, conflict, and HLP rights. In Conflict and housing, land and property rights: A handbook on issues, frameworks and solutions (pp. 92–120). Cambridge University Press. Make the Shit. (2021). Global homelessness. https://www.make-­the-­shift.org/homelessnessaction/ Mago, V. K., et al. (2013). Analyzing the impact of social factors on homelessness: A fuzzy cognitive map approach. BMC Medical Informatics and Decision Making, 13, 94. https://doi.org/1 0.1186/1472-­6947-­13-­94 Mayberry, L. S., Shinn, M., Benton, J. G., & Wise, J. (2014). Families experiencing housing instability: The effects of housing programs on family routines and rituals. The American Journal of Orthopsychiatry, 84(1), 95–109. https://doi.org/10.1037/h0098946 Mooney, G., & Scott, G. (2012). Social justice and social policy in Scotland. Policy Press. Mortensen, A. (2021). Russia says it has nothing to do with Poland-Belarus crisis. CNN. https:// www.cnn.com/2021/11/13/europe/poland-­belarus-­crisis-­russia-­intl/index.html National Center for Homeless Education. (2021). Immigrants and refugees. https://nche.ed.gov/ immigrants-­and-­refugees/ National Coalition for the Homeless. (2021). Homelessness and poverty. https://nationalhomeless. org/about-­homelessness/ Office for National Statistics. (2018). Deaths of homeless people in England and Wales: 2018. https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/ bulletins/deathsofhomelesspeopleinenglandandwales/2018 Ortiz-Ospina, E., & Roser, M. (2017). Homelessness. OurWorldInData.org. https://ourworldindata.org/homelessness Oudshoorn, A. (2018). Relationship between refugees and homelessness. Homeless Hub. https:// www.homelesshub.ca/blog/what-­relationship-­between-­refugees-­and-­homelessness Pew Charitable Trust. (2016). Global migration’s rapid rise. https://www.pewtrusts.org/en/trend/ archive/summer-­2016/global-­migrations-­rapid-­rise Roser, M., & Ortiz-Ospina, E. (2013a). Global extreme poverty. OurWorldInData.org. https:// ourworldindata.org/extreme-­poverty Roser, M., & Ortiz-Ospina, E. (2013b). Income inequality. Published online at OurWorldInData. org. https://ourworldindata.org/income-­inequality Ruiz-Grossman, S. (2018). 5 Things people get wrong about homelessness. Retrieved from https:// www.huffpost.com/entry/homeless-stereotypes-myths-housing-crisis_n_5c05a9a7e4b0cd916 faefb18 Ruff Institute of Global Homelessness. (2021). Global homelessness. https://ighomelessness.org/ San Diego Foundation. (2021). What is social justice? https://www.sdfoundation.org/news-­events/ sdf-­news/what-­is-­social-­justice/ Schwartz, S. (2019). Sending refugees back makes the world more dangerous. Foreign Policy. https:// foreignpolicy.com/2019/11/27/sending-­refugees-­back-­makes-­the-­world-­more-­dangerous/

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Seneviratne, K., Amaratunga, D., & Haigh, R. (2017). Managing housing needs of post conflict housing reconstruction. Engineering, Construction and Architectural Management, 24, 275–288. https://doi.org/10.1108/ECAM-­10-­2015-­0157 Shinn, M., Gibbons-Benton, J., & Brown, S. R. (2015). Poverty, homelessness, and family break­up. Child Welfare, 94(1), 105–122. St Arnault, D., & Merali, N. (2019). Refugee pathways out of homelessness in urban Alberta, Canada: Implications for social justice-oriented counselling. Counselling Psychology Quarterly, 32(2), 227–245. https://doi.org/10.1080/09515070.2018.1437540 Stewart, M., Reutter, L., & Letourneau, N. (2010). Supporting homeless youth: Perspectives and preferences. Journal of Poverty, 14(2), 145–165. https://doi.org/10.1080/10875541003711631 Suliman, A. (2017). Disasters make 14 million people homeless each year: U.N. Retrieved from https://www.reuters.com/article/us-un-disaster-displacementidUSKBN1CH35D United Nations. (2019). Access to housing as a right to justice. A/HRC/40/61. https://www.ohchr. org/EN/Issues/Housing/Pages/AnnualReports.aspx United Nations. (2020a). Right to adequate housing. https://www.ohchr.org/documents/ publications/fs21_rev_1_housing_en.pdf United Nations. (2020b). Resolution on homelessness. https://www.un.org/development/desa/ dspd/2020/03/resolution-­homelessness/ United Nations. (2021a). Population growth. https://www.un.org/en/global-­issues/population United Nations. (2021b). Annual thematic reports of the Special Rapporteur on adequate housing. https://www.ohchr.org/EN/Issues/Housing/Pages/AnnualReports.aspx United Nations. (2021c). Inequality. https://www.un.org/en/un75/inequality-­bridging-­divide United States Council of Mayors. (2020). The United States conference of mayors. In Hunger and homelessness survey: A status report on hunger and homelessness in America’s cities. Vissing, Y. (1997). Out of sight, out of mind: Homeless children and families in small town America. University of Kentucky Press. Vissing, Y. (2020). Changing the paradigm of homelessness. Routledge. Vissing, Y. (2021). Unaccompanied children at the United States-Mexico border. In Y. Vissing & S. Leitao (Eds.), The rights of unaccompanied minors: Perspectives and case studies. Springer. Vissing, Y., Hudson, C., & Nilan, D. (2020). Changing the paradigm of homelessness. Routledge. Wang, J. Z., Mott, S., Magwood, O., et al. (2019). The impact of interventions for youth experiencing homelessness on housing, mental health, substance use, and family cohesion: A systematic review. BMC Public Health, 19. https://doi.org/10.1186/s12889-­019-­7856-­0 Watson, J., & Cuervo, H. (2017). Youth homelessness: A social justice approach. Journal of Sociology, 53(2), 461–475. https://doi.org/10.1177/1440783317705204 Williams, J. (2017). The politics of homelessness. In Oxford Handbook. https://doi.org/10.1093/ oxfordhb/9780199935307.001.0001/oxfordhb-­9780199935307-­e-­153 World Justice Project. (2018). Global insights on access to justice: Findings from the world justice project general population poll in 45 countries. https://worldjusticeproject.org/our-­ work/wjp-­r ule-­l aw-­i ndex/wjp-­r ule-­l aw-­i ndex-­2 017%E2%80%932018/factors-­r ule-­l aw/ fundamental-­rights-­factor Yale University. (2021). Yale and the world. https://world.yale.edu/yale-­global-­url-­landing-­page Yvonne M. Vissing is Professor and Policy Chair for the United Nations Convention on the Rights of the Child, Founding Director of the Center for Childhood & Youth Studies and Chair of the Sociology Department at Salem State University in Salem, Massachusetts USA.  Dr. Vissing has also created a nonprofit organization to assist communities to advocate for improved community, child and family services. Author of five books with several others near completion, Dr. Vissing has presented her work at international and national meetings and is engaged in work that has both an international and a domestic focus. A true child advocate, she has trained thousands of professionals and students in a framework that is based upon the United Nation’s  

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Convention on the Rights of the Child to work with, and for, children’s rights. As the research director for the Department of Sociology, she conducts both quantitative and qualitative research, and coordinates her region’s annual research conference. Her main areas of concentration have focused upon economic well-­being of children and families, education, health, legal rights, and community obligation and comprehensive services. Vissing worked to create a national peace conference for youth, has been a major contributor to Oxford University’s Encyclopedia of Peace.

Chapter 9

Human Rights and Cultural Resource Management in the United States Kathryn E. Krasinski and Fran Seager-Boss

Abstract This chapter examines changing human rights ideology in Cultural Resource Management (CRM), a branch of archaeology that deals with large-scale construction projects on Federal lands, with federal funding, or requiring a Federal Permit. The identification, interpretation, and ownership of cultural resources are integral to Indigenous sovereignty. Current American CRM process largely disenfranchises Indigenous peoples from their cultural heritage, but has the potential to enrich human rights through a consent model guided by dialogue and collaboration. Postcolonial approaches via community-participatory methods may serve as a model for that transition. Keywords  Cultural heritage · Cultural resources · Cultural resource management · Human rights · Indigenous peoples

9.1  Introduction Indigenous people in the United States (U.S.) have a long history of living in resource-rich places from which large corporations have extracted coal, oil, timber, gold, minerals, and semi-precious metals (Anderson et al., 2016). With the rise of multinational corporations following the end of the Cold War in 1991, there has been an ever-increasing push by global companies to extract resources for material gains at the expense of Indigenous people’s cultural heritage (Schaeffer, 1997). In the U.S. cultural resource management (CRM) is the branch of archaeology that investigates and mitigates cultural resources in danger of being destroyed during construction projects involving Federal lands, funding, or permits. We deal largely K. E. Krasinski (*) Anthropology Department, Adelphi University, Garden City, NY, USA e-mail: [email protected] F. Seager-Boss Adelphi University (KEK), Knik Tribe and Chickaloon Native Village, AK, USA © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_9

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with the cultural resources considered archaeological sites, buildings, villages, and neighborhoods, although cultural resources more broadly include landscapes, song, religious and cultural beliefs, oral history, stories, dance, and much more (King, 2016). This chapter investigates the role of CRM in Indigenous human rights through the lens of anthropology as cultural critique (Marcus & Fischer, 1982). Archaeological work is inherently connected to human rights regarding the struggle for territory, economic self-sufficiency, political recognition, and social equality (Gnecco & Hernández, 2010; Haber, 2007). Neither author is an Indigenous archaeologist, but one of us (FSB) has Indigenous roots. We were trained in archaeology at North American Universities and currently work in Alaska although we have worked across the U.S. and beyond, engaging communities and participating in Indigenous archaeologies. We do not claim to represent Indigenous positions. As practitioners of archaeology, we recognize these recurring themes for which there is increasing dialogue on developing solutions.

9.2  Use of the Term Indigenous Each of the many terms referring to Native Americans, Indigenous Peoples, Indians, First Nations, etc. are problematic and not uniformly applied. We recognize the widespread preference to refer specifically to the name by which a community or Nation defines themselves. Because this chapter addresses human rights issues broadly across the U.S., we use the term Indigenous to mean the people who predate Euro-American settler colonialism in a region or country, and their descendants (UN, 2007). As a relational term with respect to colonialism, we do not use Indigenous to mean dominated or conquered peoples (Haber, 2010).

9.3  H  uman Rights, Globalisation, and Cultural Resource Management The historical context in which CRM developed is not in isolation from colonial power dynamics (Atalay, 2006). We contextualize changing human rights ideology through archaeology in the U.S. as it pre-dates cultural resources legislation. From exhuming recent human burials to using them as learning specimens in universities (Highet, 2005), archaeological practice is rooted in a history of human rights violations and nationalism (Kim, 2008; Trigger, 1984). Western settler colonialism was based on the Doctrine of Discovery, an international principle developed in the 15th and 16th centuries. By 1823 the “Doctrine of Discovery” was considered established legal practice by the U.S. Supreme Court Johnson v. M’Intosh decision. The decision largely defined discovery to mean when European, Christian nations first discovered new lands, they automatically gained exclusive property rights and sovereignty even though Indigenous people obviously lived within the discovered new

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lands, used the lands, and were established there first (Miller, 2005). Western colonists subsequently expelled Indigenous people from their traditional lands, and built new settlements on lands previously occupied by Indigenous people. Western settler colonialism also involved forced assimilation, genocide, loss of language, religion, etc. (Smith, 2008). The Doctrine of Discovery is not just an historical relic, but is actively applied to sovereign and real property rights of Indigenous people (Miller, 2005). For example, the Homestead Act privatized ½ million square miles of Indigenous collective estates (Dunbar-Ortiz & Gilio-Whitaker, 2016). Alienation of people from their original home lands along with land privatization further sovereign Nations to control and manage their own heritage (Atalay, 2006); Julien et al., 2010). It dispossesses Indigenous peoples of their own agency (Dunbar-Ortiz & Gilio-Whitaker, 2016). Discovery also gave rise to Diminished Tribal Sovereignty through trust responsibility by the federal government to act as guardians on behalf of Tribes (Miller, 2005). While Western settler colonialism was well underway, in 1797 Euro-Americans created the ‘myth of the moundbuilders’ to explain the monumental earthwork mounds and ceremonial centers found throughout the Mississippi watershed and particularly the Ohio River Valley. They were attributed to a variety of cultures including peoples from the Indian subcontinent, Egyptians, a lost Tribe of Israel, early Christians, Europeans, or ancient Norse. Some even considered the mounds to be natural phenomena (Kolodny, 2003). Each of these explanations assumed the living Indigenous people of the U.S. and their ancestors were incapable of producing such complex mounds. By the early 1800s the American scientific community acknowledged Indigenous people had indeed planned and completed the construction of the mounds. To this day, they are named the “Hopewell Culture” (300 BCE to 300  CE) after the Euro-American landowner, Mordecai Hopewell, on whose property some of these sacred mounds were initially excavated. By the late 1870s widespread American interest in archaeology was largely focused on either antiquities collecting or academic research (Kolodny, 2003). Mound excavations continued from President Jefferson’s personal excavations. Human skeletal remains as well as associated sacred artefacts were taken from numerous mounds, stretching from Florida to the Great Lakes. They were traded through the network of museums and private collections. Site destruction continued into the early 1900s as Southwestern archaeological sites became intertwined in the antiquities market (Sellars, 2007). It was in this period when the Smithsonian Institution’s Bureau of Ethnology was founded for American Indian studies (Sellars, 2007). As their scientific reports were shared, the public became increasingly concerned over the rate of ancient site destruction by relic hunters at places like Mesa Verde and Chaco Canyon (Sellars, 2007). Educators and anthropologists of the time sought to preserve these sites for the information they could reveal about the past through federal legislation. Historic preservation of Indigenous sites on federal lands did not begin in earnest until 1900 when a six-year legislative campaign resulted in the signing of the Antiquities Act in 1906. The Act required permits for scientific investigations of antiquities on federal land in addition to penalties for destruction or appropriation of antiquities (Table 9.1; Sellars, 2007). Archaeology

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Table 9.1  Non-exhaustive List of Cultural Resources Legislation Year Law Enacted Antiquities Act 1906

Historic Sites Act Reservoir Salvage Act National Historic Preservation Act Department of Transportation Act Section 4(f) National Environmental Policy Act

1935 1960

1966

1966

Agencies cannot approve use of land from a significantly owned public park, recreation area, wildlife or waterfowl refuge, or any significant historic site.

1969

Federal agencies will, in consultation with other appropriate Federal, State, and local agencies, assess in detail the potential environmental impact in order that adverse effects are avoided…. In particular, alternative actions that will minimize adverse impact should be explored and both the long- and short range implications to man, his physical and social surroundings, and to nature, should be evaluated in order to avoid to the fullest extent practicable undesirable consequences for the environment. The sanctuary system conserves a network of ocean and Great Lakes environments with extraordinary biodiversity, scenic beauty, cultural heritage and economic opportunity. Within the system, each national marine sanctuary has unique ecosystems, resources and human uses. The Act encourages coastal states to develop and implement Coastal Zone Management Plans, with the aim of preserving, protecting, developing, and restoring the coastal zone and coastal resources. The term “coastal zone,” as applied to coastal states, includes the coastal waters, the lands found in and under the coastal waters, and the adjacent shoreland. The Act greatly expanded the number and Range of Federal agencies that had to take archaeological resources into account when executing funding, or licensing projects.

1972 National Marine Sanctuaries Act

Coast Zone Management Act

Description Requires permits for scientific investigations of antiquities on federal land and penalties for destruction. Allowed for the establishment of National Monuments. Established a national policy to preserve historic sites for public and national significance Authorized under the Reservoir Salvage Act of the National Park Service to seek appropriations for salvage behind dams, and instructing dam-building agencies to cooperate in such salvage Created the National Register of Historic Places, State Historic Preservation Officers, Process for identifying, evaluating, and mitigating cultural resources

1972

Archaeological 1974 and Historic Preservation Act also known as the Archaeological Recovery Act

(continued)

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Table 9.1 (continued) Law Mining in the National Parks Act

Public Buildings Cooperative Use Act

Year Enacted 1976, Section 9

1976

1978 American Indian Religious Freedom Act Archaeological 1979 Resources Protection Act

Abandoned Shipwreck Act

1987

Native American Graves Protection and Repatriation Act American Battlefield Protection Act

1990

1996

Description Closed all National Parks and Monuments to new mining. Whenever the Secretary of the Interior finds a district, site, building, structure, or object nationally significant in illustrating natural history or the history of the United States and which has been designated as a natural or historical landmark may be irreparably lost or destroyed in whole or in part by any surface mining activity, the person conducting such activity and the Advisory Council on Historic Preservation shall be notified with a request for advice of the Council as to alternative measures that may be taken by the United States to mitigate or abate such activity. An Act to amend the Public Buildings Act of 1959 in order to preserve buildings of historical or architectural significance through their use for Federal public building purposes, and to amend the Act of August 12, 1968, relating to the accessibility of certain buildings to the physically handicapped. Protects the rights of Native Americans to practice their traditional lifeways and religion

The first time Indigenous people are explicitly recognized to have rights to participate in regulating archaeological practice on land under their ownership or control, passed to addressed continued looting. Prohibits excavation, removal, damage of archaeological resources. It further prohibits the sale, purchase, solicitation, or employing a person to violate these rules, and it comes with fines and jail time. Under the Act, the U.S. Government asserted title to abandoned shipwrecks embedded in a State’s submerged lands; abandoned shipwrecks embedded in coralline formations protected by a State on its submerged lands; and abandoned shipwrecks located on a State’s submerged lands and included in or determined eligible for inclusion in the National Register of Historic Places. Its guidelines include locating and identifying shipwrecks. Determine which shipwrecks are historic, and provide for the long-term protection of historic shipwrecks. Established a formal rights and procedure for ownership and repatriation of human remains, funerary objects, and items of cultural patrimony.

Assists citizens, public and private institutions, and governments at all levels in planning, interpreting, and protecting sites where historic battles were fought on American soil during the armed conflicts that shaped the growth and development of the United States, in order that present and future generations may learn and gain inspiration from the ground where Americans made their ultimate sacrifice. (continued)

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Table 9.1 (continued) Law Executive Order 13007 Indian Sacred Sites Sunken Military Craft Act Executive Order 13175 Presidential Memorandum on Tribal Consultation

Year Enacted 1996

Description Directed federal land managing agencies to accommodate access to ceremonial use of Indian sacred sites, and to avoid adversely affecting the physical integrity of sacred sites as well as their confidentiality. 2004 Its primary purpose is to preserve and protect from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within U.S. waters. November requiring the heads of all federal agencies to consult and 6, 2000 coordinate with Indian Tribal Governments in the development of Federal policies that have Tribal implications (86 FR 7491). November required each agency to prepare and update a detailed plan to 5, 2009 implement the policies and directives of Executive Order 13175.

continued with its emphasis on scientific research for the public’s knowledge in the following decades. During the Great Depression in the 1930s President Franklin Delano Roosevelt’s economic relief program, the New Deal, funded a variety of programs including archaeology (Means, 2013). The federal government funded “salvage” studies in the early to mid-twentieth century under which enormous amounts of data were recovered resulting in both the establishment of methodological standards as well as numerous descriptive reports (Green & Doershuk, 1998; Heizer, 1966). Following World War II, Indigenous people and archaeologists became concerned with large dam proposals resulting in widespread flooding of cultural heritage sites. They sought support from the Federal Government for scientific research in advance of their destruction. Ultimately this led to the Interagency Archaeological Salvage Program including River Basin Surveys (Means, 2013; Wedel, 1959). The first direct discussion of human rights in the U.S. occurred in the anthropological community from 1945–1950. However, the American Anthropological Association (AAA) declined to support a universal declaration of human rights advanced by the United Nations to avoid a hegemonic imposition of moral values (Goodale, 2006). Across the continent Indigenous graves continued to be looted by Euro-Americans. For many decades private landowners charged entrance fees to tour the sacred burial ground of the Whiteford Site in central Kansas (Roper, 2003). Because the site was on private land, little could be done legislatively to prevent its continued desecration. As early as 1950 the Navajo Nation discussed the formation of a Tribal museum to control their heritage through preserving traditional cultural materials that were being rapidly looted. The Navajo Tribal Museum was officially formed in 1961 (Hartman & Doyel, 1982). In 1953 when the American federal government supported House Resolution 108, it terminated federal recognition of many Indigenous

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Tribes. For those Tribes it resulted in dissolution of their treaty rights, opening reservation land for new settlement, and the resettlement of thousands of Indigenous people to urban centers across the U.S. (Hartman & Doyel, 1982). The 1960s was a decade of economic prosperity, expanding energy sources, and major construction projects including the American Interstate Highway system, shopping malls, and suburban housing. Rural America became electrified and the space program integrated science with large-scale projects. Each of these projects increased demand for natural resources. The new emphasis on science placed a focus on quantifying the tangible such as artefacts. Salvage projects from earlier periods could not keep up with the pace of cultural resource destruction during large-scale construction projects (Green & Doershuk, 1998). It was also a decade of activism challenging established sociocultural and political norms. The Red Power movement is perhaps most remembered by the occupation of Alcatraz (1964, 1969–1970) following the prison’s closure in 1963 after activists claimed the island as part of the Red Power Movement. A similar event occurred at Wounded Knee II (1973) by the Red Power Movemement. Those events manifested the American public’s awareness of the need for Indigenous self-determination (McKay, 2005). CRM really begins in the 1960s as new laws were established to document cultural resources in danger of being destroyed. In particular, the National Historic Preservation Act (NHPA) of 1966 Section 106 (36 CFR, Part 800) established a review process for Federal projects to consider the effects of their undertakings on cultural sites involving federal funds, lands, and permits. Following the passage of the NHPA, there was increased discussion on ethics in CRM practice given its consultation regulations (Green & Doershuk, 1998). Throughout the 1970s Indigenous organizations continued building international Human Rights laws with the United Nations (Dunbar-Ortiz & Gilio-Whitaker, 2016). The Navajo Nation CRM Program was established in 1977 (Watkins 2010). Additionally, the Pueblo of Zuni established the Zuni Archaeology Program in 1978 to protect cultural resources in culturally appropriate ways (Watkins, 2010). It was not until 1979 when the Archaeological Resources Protection Act (ARPA) was passed to address the limitations of previous CRM laws. ARPA was the first American CRM law where Indigenous peoples were explicitly recognized to have the right to participate in regulating the excavation and removal of archaeological materials on land under ownership or control by federally recognized Tribes (Watkins, 2010). Further, the Federal Land Policy and Management Act of 1976 recognized the need to protect archaeological sites for Indigenous cultural and religious purposes. Beginning earnestly in the 1980s human rights occupied a more central location in anthropology (Goodale, 2006). A collaborative approach refocused conversations on the concept of scientific significance to ethnic significance (Doyel, 1982). Additionally, the American Anthropological Association proactively advocated for Indigenous peoples in contexts when they would experience negative impacts from government and multinational corporate abuses (Goodale, 2006). The World Archaeological Congress’ (WAC) adoption of the Vermillion Accord in 1989 at the South Dakota Inter-Congress was the first document developed collaboratively by

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archaeologists and Indigenous people to provide a set of ethical principles for behavior and decision making regarding human skeletal remains (Fforde, 2014; WAC, 1990). The development of cultural resource legislation coincided with Indigenous protests in the 1990s dealing with repatriation of human skeletal remains. In 1990 the WAC affirmed obligations to Indigenous people (Table 9.2). While the 1992 NHPA amendments authorized Indian Tribes to develop Tribal Historic Preservation Offices to oversee and conduct the work of CRM, it required the Tribe to be Table 9.2  World Archaeological Congress (WAC), Code of Ethics Rules to Adhere to prior, during, and after investigations 1. Prior to conducting any investigation and/ or examination, Members shall with rigorous endeavour seek to define the indigenous peoples whose cultural heritage is the subject of investigation. 2. Members shall negotiate with and obtain 2. To acknowledge the importance of protecting the informed consent of representatives indigenous cultural heritage to the well-being of authorized by the indigenous peoples whose indigenous peoples. cultural heritage is the subject of investigation. 3. Members shall ensure that the authorised 3. To acknowledge the special importance of representatives of the indigenous peoples indigenous ancestral human remains, and sites containing and/or associated with such remains, to whose culture is being investigated are kept informed during all stages of the indigenous peoples. investigation. 4. To acknowledge that the important relationship 4. Members shall ensure that the results of their work are presented with deference and between indigenous peoples and their cultural respect to the identified indigenous peoples. heritage exists irrespective of legal ownership. 5. Members shall not interfere with and/or 5. To acknowledge that the indigenous cultural remove human remains of indigenous heritage rightfully belongs to the indigenous peoples without the express consent of descendants of that heritage. those concerned. 6. Members shall not interfere with and/or 6. To acknowledge and recognise indigenous remove artefacts or objects of special methodologies for interpreting, curating, cultural significance, as defined by managing and protecting indigenous cultural associated indigenous peoples, without their heritage. express consent. 7. Members shall recognise their obligation 7. To establish equitable partnerships and to employ and/or train indigenous peoples relationships between Members and indigenous in proper techniques as part of their peoples whose cultural heritage is being projects, and utilise indigenous peoples to investigated. monitor the projects. 8. To seek, whenever possible, representation of indigenous peoples in agencies funding or authorising research to be certain their view is considered as critically important in setting research standards, questions, priorities and goals. WAC Code of Ethics Principles, 1990 1. To acknowledge the importance of indigenous cultural heritage, including sites, places, objects, artefacts, human remains, to the survival of indigenous cultures.

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federally recognized. The amendments did not resolve land issues for Tribes who were forcefully relocated from their ancestral territory or for whom land ownership is not recognized. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) established a formal rights and procedure for ownership and repatriation of human remains, funerary objects, and items of cultural patrimony. Additionally, Executive Order 13007: Indian Sacred Sites of 1996 directed federal land managing agencies to accommodate access to ceremonial use of Indian sacred sites, and to avoid adversely affecting the physical integrity of sacred sites as well as their confidentiality. Professional organizations took up human rights issues more seriously in the 1990s. The American Anthropological Association (AAA) in 1995 established the Committee on Human Rights (CoHR). In 1999 the AAA ratified a Declaration on Anthropology and Human Rights stating that: People and groups have a generic right to realize their capacity for culture, and to produce, reproduce and change the conditions and forms of their physical, personal and social existence, so long as such activities do not diminish the same capacities of others. Anthropology as an academic discipline studies the bases and the forms of human diversity and unity; anthropology as a practice seeks to apply this knowledge to the solution of human problems (AAA, 1999).1

Following the Society for American Archaeology formation of the Ethics in Archaeology Committee, their 1996 ethics statement was based on nine principles including Stewardship, Accountability, Commercialization, Public Education and Intellectual Property (Watkins, 2014). It only mentions Indigenous peoples once in the Public Education and Outreach principle. The Register of Professional Archaeologists (RPA) was established in 1998 as a voluntary registry of archaeologists for “the establishment and acceptance of universal ethical and professional standards in archaeology” (RPAnet, n.d.), largely represented by archaeologists practicing CRM. It is unique for having a formal grievance procedure that allows investigation of complaints regarding professional conduct. Its code of conduct does not specifically mention Indigenous people. It was also in the 1990s when the development of Indigenous archaeology also known as public anthropology/archaeology, community archaeology, or community-­ based participatory approaches was closely connected to postcolonial critiques of archaeological practice (McNiven, 2016, and references therein). The wider recognition that there is more than one way of understanding the material world is exemplified in the term, archaeologies (Wobst, 2010). In the new millennium the 1  While the American Anthropological Association’s statement on human rights was good intentioned, it is important to recognize the statement lacks an Indigenous perspective as many of these concepts do not reflect the Indigenous voice. For example, there is no way to “translate ‘generic’ to Indigenous languages” and no way to utilize culture in Indigenous languages. The English language turns all Indigenous languages upside down. Further, NAGPRA legislation is considered by many to be colonial and imminently hostile to the way Indigenous people view the world, past, present, and future. Culture now does not have the same meaning as it did in 1960, and it is not possible to know what it will mean in 2030. But the language Indigenous people use is past, present, and future.

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2000 publication of Tierney’s book Darkness in El Dorado outlined ethical issues related to ethnographic fieldwork work among the Yanomami of the Amazon (Borofsky, 2005). This remains one of the most well-publicized ethical examples reigniting anthropology’s engagement with ethics. By that time many anthropologists also were studying human rights as cultural process (Goodale, 2006, and references therein). The AAA CoHR prepared multiple statements concerning the safety of both Indigenous communities, especially the Guarani-Kaiowa communities of Brazil in addition to anthropologists working on human rights cases across the world (AAA, n.d.). The AAA CoHR advocated for a presidential signature of the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP). While not specific to CRM, as the largest organization of anthropologists (including archaeologists) in the U.S., the AAA continued to center human rights in the 2000s. In 2007 the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP) was ratified, but not supported by the U.S. federal government at that time. Focus on Indigenous human rights continued in the 2010s as did large-scale construction projects. The AAA CoHR remained engaged with human rights issues around the world by writing letters concerning large-scale construction projects impacting Indigenous settlements that included the Belo Monte Hydroelectric Project in Brazil. At the U.S. federal level a final rule to NAGPRA by the Interior Department added procedures for the disposition of culturally unidentifiable human remains in the possession or control of museums, Federal agencies, or any institutions receiving federal funding such as universities on May 15, 2010. It added the possibility for their repatriation for the first time (75 FR 12377). The U.S. officially endorsed UNDRIP in 2010. Effective December 7, 2015, the U.S.  Interior Department issued an additional Rule providing procedures for the Disposition of Unclaimed Human Remains from Federal lands after November 16, 1990 (80 FR 68465). Extraction projects, both large and small, have direct, indirect, and cumulative effects to the cultural resources of Indigenous people. For example, the well-­ publicized proposed Pebble Mine in Bristol Bay, Alaska occurs on one of the richest sockeye salmon ecosystems in the world to which the physical, social, and spiritual well-being of Yup’ik and Dena’ina are tied (Boraas & Knott, 2012). Alaska Native communities across Bristol Bay have indicated they would cease being Wild Salmon People if mining activities devastated wild salmon populations by tainting the water (Boraas & Knott, 2012). Not all large-scale construction projects that affect cultural resources involve fossil fuels or mining. For example, the Quechan Tribe of Fort Yuma Indian Reservation opposed the 6500 acre Solar farm near El Centro, California which would have negatively impacted over 300 culturally significant settlements including where their deceased were cremated (Furlong, 2020). In a similar situation, the Cape Wind Energy Project proposed to construct 130 off-shore wind turbines in Nantucket Sound. To the Mashpee Wampanoag Tribe and Wampanoag Tribe of Gay Head (Aquinnah), the project area viewscapes hold religious and cultural significance (Furlong, 2020). At the time of this writing, the status of the project is indeterminate.

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In 2016 the AAA took a formal position standing in solidarity with numerous Tribal Nations strongly opposing construction of the Dakota Access Pipeline breached NEPA, NHPA, the collective human rights of the Nations, signed treaties, and violated UNDRIP. The Standing Rock Sioux Tribe opposed the pipeline to protect burial grounds of religious and cultural significance, and to ensure a sustainable clean water supply under the rallying cry of Mní Wičóni or “water is life.” When the pipeline was ultimately permitted in 2017, there was a widespread gathering of Indigenous people called Water Protectors who were met with harassment by water canons, attack dogs, the American legal system and dispersal by military armored vehicles during subzero temperatures (Hampton, 2020). Similar to the 1960s the outcry to these projects increased public awareness of the intersections of human rights and large-scale construction projects (Parkhurst & Deschine, 2021). It may have contributed to the revival of Executive Order 13175 on January 26, 2021 to require all agencies to submit a plan for Tribal consultation within 90 days to the Director of Office of Management and Budget. It further required agencies to consult with Tribes while developing their plan. Each agency plan shall designate an official to coordinate and report on implementation of the plan (86 FR 7491).

9.4  Limitations of CRM on Indigenous Cultural Resources Although each of the laws took important steps towards increased documentation of cultural resources, they do not expressly protect cultural resources, nor do they meet the UNDRIP guidelines. A major flaw with CRM projects is that the financing agency is responsible for archaeological work. Archaeologists are therefore often pressured or hampered by time schedules and the conflict of interest that places a price on cultural heritage. CRM legislation encourages private contractors, higher education, museums and research institutes to seek lucrative contracts to carry out CRM fieldwork. Since colonization resulted in the physical separation of Indigenous people from their cultural heritage, how and what the federal government determines to be a cultural resource is critical to human rights (Atalay, 2006). The cultural sites are often not under management or ownership by the descendant community, but rather by the colonizing governments. Further, a low percentage of people hired for these projects represent the descendant communities whose material culture they seek to recover. Under the National Historic Preservation Act (NHPA), Section 106, a process was established for assessing the effects of the undertaking on cultural resources within a defined Area of Potential Effects (APE). After defining the APE, NHPA process requires identification and evaluation of cultural resources within the APE.  In the event a site or property is adversely affected by a given project it requires a resolution of adverse effects. However, not every historic property is eligible for mitigation or avoidance of adverse effects. It depends on whether the State Historic Preservation Officer (SHPO) concurs with the cultural resources as defined by Indigenous communities. Site identification requires a “Good Faith Effort” under

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NHPA 800.4 (b)(1). To accomplish the latter, it requires the agency official to take into account, the identification effort that may include: 1. the magnitude and nature of the undertaking; 2. the nature and extent of potential effects on historic properties; 3. past planning, research, and studies; 4. the likely nature and location of historic properties within the APE; and 5. the degree of federal involvement However, acceptable methodologies are quite varied. We have observed the term of “windshield survey” used in some official reports for identifying cultural resources, specifically the built environment. Thus many projects never have a cultural resource specialist physically enter the APE, survey it, or conduct subsurface testing. SHPO must also concur on determinations of eligibility for inclusion in the National Register of Historic Places. To be eligible, a site must be associated with significant a) events, b) people, c) have distinctive characteristics, or d) yield or have the potential to yield important information. An eligible property must also possess “integrity,” that means it has to be in good condition in an original location within a preserved setting. Other aspects of integrity include the degree of preservation of design, materials, workmanship, and association with other properties (National Register Bulletin, 1997). Sacred sites that have been violated, such as through looting or erosion are often not considered eligible for the National Register of Historic Places. For establishing eligibility to the National Register of Historic Places, the NHPA criteria are broad, but do not incorporate ethnic significance nor Indigenous relationships to place (Doyal, 1982). Most aspects of the physical world where humans have been are affected by human action (Wobst, 2010). Besides the obvious material items including artefacts, hearths, house depressions, clothes, computers, etc., there are indirect material impacts including distribution of plants (Wobst, 2010). A descendant of the medicine people, Wilson Justin, is an Ahtna elder who delivered a speech at the Upper Tanana Cultural Summit in 2005 where he stated the following: In the Indian world, traditions have a shape and a structure that’s hard to understand because it’s invisible. What a tradition means to an Indian is a sacred promise, a covenant, a promissory note… So when you say ‘traditions’ today, you’re really talking about an individual covenant and that’s when you hear the old people say, ‘Our Way’. Then you understand, the whole world is a church and you’re under the eyes of the Creator all the time (Justin, 2005 quoted in Friend2 et al., 2008, p.133).

This talk helped to initiate Alaska’s reengagement of human rights discourse related to archaeology. Indigenous knowledge often is underpinned by a holistic understanding of the interconnectedness of life and cyclical time as opposed to linear time (Harris, 2010). Further, the dichotomy between animate and inanimate as well as nature and culture is often non-existent for Indigenous knowledge, i.e., water, rocks,

2  Condolences as Connie Friend passed away in August 2021. This address occurred in 2005 before an audience of professionals including archaeologists and cultural resources specialists.

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and mountains (Bender, 2002). Many Indigenous cultures believe in some form of reincarnation cycle where the line between self, present relatives, ancestors, and the spirit world is a spectrum rather than a hard line (Harris, 2010). For example, the Dena’ina concept of Beggesh is often considered the transformation of a negative essence or energy on a given object or artefact (Boraas & Peter, 2008). If an artefact was used for a hostile act or was even contemplated for use as a hostile act, it carries bad energy or can leave its “scent” on an artefact. Beggesh on an object could be detected by a shaman or a spiritually powerful person (Boraas & Peter, 2008). Supernatural spirits, humans and animals can be affected by it. Boraas who worked extensively with the Kenaitze Dene explained: The Dena’ina cosmology included six dimensions operating in parallel time and space. These dimensions consist of human space/time, ancestor space/time, animal space/time, animal spirit space/time, spirit space/time and Naq’eltani, a state of purity or pure love (Boraas & Peter, 2008, p.214).

Beggesh therefore was the concept of communication between all the dimensions except the Naq’eltani. For that reason all artefacts belonging to a person were fastidiously taken care of and carefully discarded in the event it would create bad scent or energy between people, spirits or animals. It was especially true of animals and animal spirits. If an animal sensed an artefact’s beggesh (ill harm) such as a projectile point or arrow, the animal would withdraw from an area and not allow itself to be taken in a hunt. It was for this reason the Dena’ina took care of animal bones after cooking and consuming them. Left over bones were burned in a fire or distributed into the water, river or lake (Kalifornsky et al., 1991, p.40–45). At the reincarnation place they would, “put their clothes on” and come alive, returning to earth as the same animal. Upon death one’s personal artefacts were burned with the human remains. It provided the deceased tools to be used in the ancestor dimension as well as making sure bad beggesh was purified (Boraas & Peter, 2008; Seager-Boss & Martin, 2021). Beggesh exemplifies the gravity of disrupting archaeological sites as well as who owns the Indigenous past. Thus, relationship with the land is an inextricable element of Indigenous identity (Basso, 1996; Schaepe et  al., 2017; Wobst, 2010). Brave NoiseCat (2019) shares that the Haudenosaunee Kayanerenkó:wa or the Great Law of Peace teaches that cultural and natural resources such as land, water, and all living things are properly considered relatives. These ways of knowing are often in tension to current practice which elevates empirical data on material culture (Wijesuriya, 2015). The NHPA considers Traditional Cultural Properties and Traditional Landscapes potentially eligible for the National Register of Historic Places (NRHP), but they require significant amounts of documentation followed by concurrence from the SHPO. Traditional ceremonial locations may encompass a mountain top, a lake, or a stretch of river (Parker & King, 2014, p.1). Thus, it is a hegemonic process which elevates SHPO determinations over those of the Indigenous communities being directly impacted by construction projects. The Secretary of Interior’s Professional Standards require a master’s degree in anthropology or related field to manage projects, thus requiring Indigenous People to obtain graduate degrees on the culture

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with which they are already experts. These standards also fail to account for Indigenous responsibilities and seasonal cycles. As Navajo archaeologist Davina Two Bears notes: It is ironic that many tribes, like my tribe, the Navajos, find ourselves having to demonstrate our connection to our own ancestors and cultural items and that we must become “legitimate”-that is, credentialed in the eyes of the federal government-in order to protect our ancestors and sacred places on tribal homelands (Two Bears, 2006, p.381).

The NHPA Section 106 (36 CFR § 800.1) requires federal agencies to consult Indigenous Tribes to identify sites of religious and cultural significance potentially affected by the undertaking with the goal of assessing its effects and seeking ways to avoid, minimize or mitigate any adverse effects on historic properties. How consultation is carried out remains a widespread concern. Consultation is defined by the NHPA as “the process of seeking, discussing, and considering the views of other participants, and where feasible, seeking agreement with them regarding matters arising in the Section 106 process” [Section 800.16(f)]. This definition is too general to meet the needs of Tribes. A common practice is for an agency to send out a vague canvass letter to Tribes describing a litany of upcoming projects for which they want Tribes to make an immediate comment, often to the incorrect Tribal representative. Considered a consultation letter, if no Tribal written response is submitted, agencies often consider their consultation requirement completed. Thus, in CRM legislation the responsibility and power of managing, collecting, housing, interpreting, and making decisions about the fate of areas planned for large construction sites was placed on the scientific community (Watkins, 2010). There are also concerns about intellectual property and loss of access to information from cultural sites that are typically stored in state-approved repositories (Atalay et al., 2016).

9.5  Solutions Within Indigenous Archaeologies Cultural stress experienced by Indigenous people is intimately connected to disruption of relationships with their respective territories. Further, the temporal connection of cultural identity is particularly important for well-being in communities (Big-Canoe & Richmond, 2014; Chandler & Lelonde, 1998; Chandler & Proulx, 2006; Greenwood & de Leeuw, 2007; Hill, 2009; Richmond et al., 2007; Schaepe et al., 2017). Thus, how the archaeologist approaches CRM has direct effects to the well-being of Indigenous communities (Court & Wijesuriya, 2015). Archaeologists today are aware of ethical issues, particularly related to fieldwork and the recovery of human remains, but much remains to be done to ensure CRM meets UNDRIP guidelines. Cultural heritage was created by people, and thus CRM needs to “maximize the benefit to the host society” (Wobst, 2010, p. 24). Meaningful engagement with descendant communities is increasingly advocated as a way to do this (Atalay, 2019). Indeed, since archaeologists work in interdisciplinary teams, it is a natural progression to include Indigenous ways of knowing in archaeological practice.

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Indigenous involvement in archaeology is not new, but the kind of Indigenous involvement necessary to address CRM issues should be built on sustained relationships, collaboration, and trust (Atalay, 2006, 2019; McNiven, 2016). Colonial histories make establishing trust a long process. Collaboration therefore is a good starting point for transforming archaeology from a unidirectional process to one built on consent (Gnecco, 2006). By deemphasizing the focus solely on material culture, CRM may broaden the archaeological vision to center Indigenous values, ethics, and practices which emphasize respect, relationality, compassion, care, and patience (Atalay, 2006, 2019; Court & Wijesuriya, 2015; Trigger, 1984; Tuhiwai Smith, 2010; Wobst, 2010). Since there is no single way of accomplishing this objective, Indigenous archaeologies enable flexibility in the process (Colwell-­ Chanthaphonh & Ferguson, 2010). Rethinking archaeological practice not only has the possibility of making it more ethical, but it will result in more effective “resource management,” better science, and may be a mechanism for community reconstruction (Allen et al., 2010; Nagel, 1996; Schaepe et al., 2017). When heritage is people centered, it improves health, well-being (Atalay, 2019; Brady et  al., 2016; McNaughton et  al., 2016; Schaepe et al., 2017), and social inclusion (Hill, 2009). Colonial histories must be told before Indigenous people can fully recover their identities, and CRM is part of that process (Niezen, 2010). Community-based archaeology opens the potential for establishing or maintaining relationships with land as well as recovering knowledge lost as a result of colonialism (Atalay, 2006; Schaepe et al., 2017, p.502). For archaeology to have positive impacts, projects need to be designed by and for descendant communities (Schaepe et al., 2017). Process is critical for success in relationship building, and should be codified throughout Section 106 of the NHPA. Consultation should automatically include Indigenous people at the inception of a project. Consultation should seek consent on defining the Area of Potential Effects. Since many federally recognized Tribes now have cultural resources programs including Tribal Historic Preservation Officers (THPOs), Tribal governments should not only be invited to consult or participate in fieldwork, but should also be granted the appropriate permits and contracts to lead fieldwork. If avoidance of a site is not possible, mitigation may be warranted. Following consentdriven consultation will yield better results in official reports as an end-product of the NHPA process. Once artefacts are unearthed, they should be curated for future generations in cultural facilities designed and managed by the descendant community rather than in inaccessible state and federal repositories (Schaepe et  al., 2017). We personally continue to hone this practice by designing cultural projects based on Indigenous priorities. Ensuring grant support is managed by Tribal governments facilitates full inclusion of Tribal citizens throughout process including during fieldwork and the final report writing. We also co-present at professional conferences to ensure Indigenous collaborators’ voices are represented. While Indigenous archaeologies center human rights in CRM practice, not all concerns have been worked out. Financial support for Indigenous communities should be compulsory as the consultation process requires an enormous Tribal time commitment.

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9.6  Conclusions Cultural Resource Management legislation in the U.S. does not mandate preservation of culturally-significant sites and places, nor is it applicable on private property except in the case of federal funding or permits. Over the last 70 years legislation has improved by requiring federal agencies to consider the effects of their actions on cultural resources in addition to processes for repatriation of human skeletal remains. These are important advances, but many concerns remain which have direct bearing on Indigenous rights, and more broadly human rights. It is of the utmost importance that professionals engaging in CRM treat cultural resources as critical for freedom of religion; self-determination; and federal recognition of land use and subsistence rights; sovereignty; and relationships to the land. While discussion of social justice and human rights in the United States has shifted in the last 15 years to acknowledge cultural resource concerns within Indigenous communities, it has not fully acted on those concerns. Indigenous languages are inherently more action-based. CRM practice should always include meaningful dialogue with descendant communities throughout the entire decision-making process from the inception of a project to its implementation, not just under NHPA, but all undertakings at the federal, state, and local level. CRM practice must involve consent and be more flexible to embrace Indigenous knowledge and values. Indigenous archaeologies encourage more collaboration, mutuality, and for CRM practitioners to relinquish some of their control (Green et al. 2003), but these approaches will not solve all of the human rights issues around cultural resources. Protection and understanding of the material will result in better science as well as enriching planning for large-scale construction projects. Maintaining Indigenous knowledge not only serves Indigenous peoples, but the global community as cultural knowledge is critical for guiding the world to handle the most pressing issues of our time. Acknowledgements  We gratefully acknowledge the Dene descendant communities where we work. We also wish to thank the many colleagues whose experiences and discussions contributed to the ideas presented in this paper. We appreciate Yvonne M. Vissing whose tireless work focuses on integrating global human rights issues.

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McNaughton, D.  A., Morrison, M., & Schill, C. (2016). ‘My country is like my mother…’: Respect, care, interaction and closeness as principles for undertaking cultural heritage assessments. International Journal of Heritage Studies, 22(6), 415–433. McNiven, I.  J. (2016). Theoretical challenges of indigenous archaeology: Setting an agenda. American Antiquity, 81(1), 27–41. Means, B.  K. (2013). “Alphabet soup” and American archaeology. In B.  K. Means (Ed.), Shovel ready: Archaeology and Roosevelt’s New Deal for America (pp. 1–20). University of Alabama Press. Miller, R. J. (2005). The doctrine of discovery in American Indian law. Idaho Law Review, 42, 1–12. Nagel, J. (1996). American Indian ethnic renewal: Red power and the resurgence of identity and culture. Oxford University Press. Niezen, R. (2010). A new global phenomenon? In M. M. Bruchac, S. M. Hart, & H. M. Wobst (Eds.), Indigenous archaeologies: A reader on decolonization (pp. 33–37). Routledge. NoiseCat, J. B. (2019). We need indigenous wisdom to survive the apocalypse. The Walrus, March 27, 2020. Parker, P.  L. & King, T.  F. (2014). Guidelines for the evaluation and documentation of traditional cultural properties. National Register Bulletin 38, First published 1990 by the National Register of Historic Places. U.S. Department of the Interior, National Park Service. Parkhurst, N., & Deschine, A. (2021). Chapter 2: From #Mniwiconi to #StandwithStandingRock: How the #NODAPL movement disrupted physical and virtual spaces and brought indigenous liberation to the forefront of people’s minds. In B. Carlson & J. Berglund (Eds.), Indigenous peoples rise up: The global ascendancy of social media activism. Rutgers University Press. Richmond, C., Ross, N. A., & Bernier, J. (2007). Exploring indigenous concepts of health: The dimensions of Métis and Inuit health. Aboriginal Policy Research: Directions and Outcome, 4, 3–13. Roper, D. C. (2003). Implications of the ceramic assemblage in the Whiteford Site (14SA1, the Indian Burial Pit). Current Archaeology in Kansas, 24, 24–34. RPA net (n.d.) Register of professional archaeologists. About the Register. https://rpanet.org/ about-­the-­register. Accessed May 2021. Schaeffer, R. K. (1997). Understanding globalization: The social consequences of political, economic, and environmental change. Rowman & Littlefield. Schaepe, D.  M., Angelbeck, B., Snook, D., & Welch, J.  R. (2017). Archaeology as therapy: Connecting belongings, knowledge, time, place, and well-being. Current Anthropology, 58(4), 502–533. Seager-Boss, F. & Martin, R. (2021). Survey and inventory of sites: Phase I Settlers Bay Coastal Park. Report submitted by the Knik Tribal Council: ms. on file at the State Historic Preservation Office. Sellars, R. W. (2007). A very large array: Early federal historic preservation-the Antiquities Act, Mesa Verde, and the National Park Service Act. Natural Resources Journal, 47, 267. Smith, A. (2008). Written off the map: Cleared landscapes of medieval Ireland. In A.  Smith & A. Gazin-Schwartz (Eds.), Landscapes of clearance: Archaeological and anthropological perspectives (pp. 49–70). Left Coast Press. Tierney, P. (2001). Darkness in El Dorado: How scientists and journalists devastated the Amazon. WW Norton & Company. Trigger, B.  G. (1984). Alternative archaeologies: Nationalist, colonialist, imperialist. Man, 19, 355–370. Tuhiwai Smith, L. (2010). Colonizing knowledges. In M. M. Bruchac, S. M. Hart, & H. M. Wobst (Eds.), Indigenous archaeologies: A reader on decolonization (pp. 57–62). Routledge. United Nations. (2007). Secretariat of the permanent forum on indigenous issues. Department of Economic and Social Affairs: Indigenous Peoples. Watkins, J. (2000). Indigenous archaeology: American Indian values and scientific practice. AltaMira Press.

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Watkins, J. (2010). Beyond the margin: American Indians, first nations, and archaeology in North America. In M. M. Bruchac, S. M. Hart, & H. M. Wobst (Eds.), Indigenous archaeologies: A reader on decolonization (pp. 153–162). Routledge. Watkins, J. (2014). Society for American archaeology (SAA): Committee on ethics. In C. Smith (Ed.), Encyclopedia of global archaeology. Springer. Wedel, W. R. (1959). An introduction to Kansas archeology. Bulletin 174. Bureau of American Ethnology, Smithsonian Institution, Washington, D.C. Wijesuriya, G. (2015). Living in heritage: A summary. ICCROM. Wobst, H. M. (2010). Indigenous archaeologies: A worldwide perspective on human materialities and human rights. In M. M. Bruchac, S. M. Hart, & H. M. Wobst (Eds.), Indigenous archaeologies: A reader on decolonization (pp. 17–27). Routledge. World Archaeological (1990). First code of ethics. Adopted at WAC-2, Barquisimeto, Venezuela.75 FR 12377. Native American Graves Protection and Repatriation Act Regulations-disposition of culturally unidentifiable human remains. A Rule by the Interior Department on 03/15/2010. 80 FR 68465. Disposition of Unclaimed Human Remains, Funerary Objects, Sacred Objects, or Objects of Cultural Patrimony: A Rule by the Interior Department on 11/05/2015. Kathryn E. Krasinski is an assistant professor in Anthropology Department, Adelphi University Alumnae Hall 218, 1 South Avenue, Garden City, NY 11530. Her work includes community archaeology in Alaska.  

Fran Seager-Boss is an archaeologist and Cultural Resources Specialist who has retired from local government, and now serves as a technical advisor on cultural resource management issues in Southcentral Alaska and assists in obtaining Cultural Resource grants.  

Chapter 10

Migratory Debt: On the Origins and Consequences of Uneven Migratory Mobility Between Centers and Peripheries Leonardo Diaz Abraham and Rodrigo R. Gomez Garza

Abstract  Based on the concept of ‘ecological debt’, which refers to the economic debt that developed countries ‘would have to pay’ to countries that have suffered environmental offal and destruction, we will defend the concept of ‘Migratory debt’. This would give account of the historical responsibility that the central countries have with the migration movements of the peripheries. By way of example and support of the argument, will be addressed three dimensions: (a) the case of wars and other conflicts sponsored by economic powers in vulnerable countries that aim to control resources or its flows. This condition of fragility affects the displacement of thousands or millions of people from their places of origin; (b) the case of climate refugees forced to leave their homes due to anthropogenic climate change caused mainly by localized industrial activity but with severe global impact; (c) economic colonialism, which through free trade agreements and other unequal exchange mechanisms affects labor markets in poor and vulnerable countries. This situation pushes migration flows to places with better livelihoods and security conditions. Once this theoretical-analytical framework is based, we will present an approximation of the concept of migratory debt with an emphasis on compensation or historical reparation policies and practices under a cosmopolitan perspective on human rights. Finally, in this sense we will expose the case of sanctuary cities in the United States of America and their educational programs to sensibilize citizens about illegal immigration. Keywords  Climate change · Cosmopolitan perspective · Dependency theory · Ecological debt · Forced migration · Global impact · Hegemonic economies · Historical compensation · Historical reparation policies · Human rights · Illegal immigration · Imperious migration · Migratory debt · Migration movements · Sanctuary cities · Structural poverty · Transnational companies · USA

L. D. Abraham (*) Social Science Department, Universidad Autónoma Metropolitana, Mexico City, Mexico R. R. Gomez Garza Economics, Universidad Nacional Autónoma de México (UNAM), Mexico City, Mexico © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_10

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10.1  T  he Great Divergence: Secular Inequality Between Centers and Peripheries A few decades ago, when the issue of unpayable external debts that poor countries had with the rich made headlines in many newspapers on the planet, the term ‘environmental debt’ was coined to describe a phenomenon somewhat hidden in the official narrative of relations between nation states. Namely, that there is an unacknowledged debt of the central countries with the peripheral ones that is not easy to quantify and is not only reduced to monetary terms. It is a debt that can be traced back centuries and accounts for generations of dispossession of natural and human resources that have never been repaid or benefited the countries and societies from which the wealth has been extracted. From the mining exploitation of the American colonies under European rule half a millennium ago, to the era of modern transnational companies that establish themselves in the name of development in ‘backward’ regions, to exploit work and resources, under poor and unsafe labor regimes. Thus, uneven exchange between centers and peripheries has been a constant that tends to widen in the long term. From this perspective, the prosperity of developed countries, in a world-economy context, depends on the structural and prolonged misery of the so-called underdeveloped countries: The first aspect of the relationship between External Debt and Environmental Debt is the claim of the latter, on account of the underpaid export (since prices do not include various social and environmental costs, both locally and globally) and on account of the environmental services provided for free […] The second aspect of the relations between External Debt and Environmental Debt has already been studied further: how does the obligation to pay the External Debt and its interests leads to a depredation of nature (and therefore increases the Environmental Debt). (Martínez, 1997, pp. 157–158).1

Thus, the central argument of those who defend the conceptualization of environmental debt is that, if the wealth generated by the dispossession of the underdeveloped world was quantified in monetary terms, the financial debts of the most vulnerable countries with the most developed ones should be canceled, and quite possibly, a historical debt of the metropolitan countries with the peripheries could even be observed. However, the consequences of colonialism (whether military or economic) are not reduced to the environment; the costs in human terms are also gigantic. The economic or social benefits that the relationship between the countries in the South and the countries in the North can bring in the form of technology or capital investment are generally overshadowed by the social costs that impact the vast majority of the population in these peripheral areas (O’Connor, 1998). Broadening the conceptual range a little, we could talk about other types of debts that are the product of this uneven exchange between regions. Such is the case of the ‘migratory debt’. One needs not delve deeply into the migration issue to discover that the populations that migrate the most come from impoverished regions, and if  Translation from Spanish by the authors.

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we echo the above, as well as debates such as dependency theory, we can attribute a good part of the causes of this structural poverty to this relationship of historical subordination/domination between regions. Dependency theory postulates that the evolution of capitalism has given rise to an international order composed of industrialized countries and a large periphery of dependent countries linked by unbalanced and asymmetric relations, where the advances of the former depend on the exploitation of the latter.We start from the consideration that the large flows of forced or imperious migration represent a face of the global failure of the economic, environmental, and social policies of recent and past times. The reasons that encourage the phenomenon are varied, but the engine that drives the migratory flows towards the more developed and prosperous centers is the same. This is the profound imbalance in the conditions and opportunities for development in the different territories. In this sense, globalization as the free circulation of goods, capital and services is confronted with inequity in the social and geographical distribution of the benefits and costs that derive from it. Most of all when war, impoverishment, and environmental degradation are the motivations that drive massive human mobility within and outside the borders of nations. The fact that while we advance to the spread of free trade agreements between centers and peripheries, the national borders of the most developed countries are rapidly being shielded, seems to be evidence of what has been said. Although large-scale human movement has occurred in other times, it now presents common motivations in very distant places with diverse cultures. This situation generates a constant tension in the action between centers and peripheries that in the end is inserted in the theoretical approach of the world-system defended by I. Wallerstein (2004). In a complementary way, the perspective of B. Santos (1998; 2017) contributes to the foundation of the ‘migratory debt’ since it distinguishes the sharpening of the ‘abysmal line’ that sharply divides and models social —and class— realities in all scales of the territory. This abyss that opens between one and the other is strongly evidenced by the phenomenon of contemporary migration. Between impoverished, violent, and unstable origins and prosperous and safe destinations, walls have been erected, migratory waves slowed down, and repressive policies put in place, all of which are combined with instruments of international cooperation. However, these practices have acted as a palliative to the collective realities that nourish migration with structural conditions rooted in and endorsed by the same development poles that attract unstoppable flows, with global policies that tend to channel and concentrate wealth, well-being, and prosperity in a few hands and hyper-developed poles that emphasize the abysmal distance day by day. In this sense, after a brief explanation of the historical origins of this century-old inequality explained through the debate of ‘The Great Divergence’, and to give substance to the idea of ​​a ‘migratory debt’, we address some cases where responsibility for migratory movements can be directly or indirectly assigned to actions taken by developed countries. Namely: (a) migrations due to economic colonialism, that is to say, due to contexts of economic dominance that integrate underdeveloped countries to global trade in a subordinate way, perpetuating conditions of poverty

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that force large population groups to migrate to areas of greater prosperity; (b) migrations due to environmental causes where the burden of environmental destruction is borne by the northern countries due to their constant search for raw materials and economic growth built on accumulation patterns based on the depredation and destruction of the natural environment; and (c) migrations due to military interventions and other armed conflicts caused directly or indirectly by metropolitan countries. Finally, we will reflect on some forms of compensation or historical reparation that are viable, such as the case of sanctuary cities in the USA, and that could contribute to the formation of a comprehensive social perspective and awareness on international mass migration patterns, through a humanistic and cosmopolitan vision of the human rights of migrants.

10.2  Liabilities with the Global South and Migration The Great Divergence debate is relatively recent in terms of economic history (Pomeranz, 2000; Williamson, 2011) but it has been quickly adopted by those studying long-term economic processes and has given empirical support to the world-systems perspective and to the idea of historical ​​ subordination of peripheries to the centers. The premise upon which this analysis is built is that since the emergence of modern industry in Europe around the eighteenth century, the gap between developed (or early industrialized) countries and poor countries has not only remained but indeed widened constantly. According to E. Reinert (2007) the difference in GDP per capita between the richest regions of the world-economy and the poorest was approximately 2:1 around 1750. According to A. Maddison (2008) at the beginning of the twenty-first century the difference between the West and the Rest of the World was around 5:1 and quite close to 19:1 comparing the most prosperous region (USA) with the most backward (Africa as a whole). Since 1820, world development has been much more dynamic, but western momentum was more rapid than that of the Rest. By 2006, the Western average had risen 21 fold, the rest only 8 fold. A 5-fold gap had emerged between the per capita income of the two groups. The per capita income spread within the West was very much smaller (2:1) than in the Rest, where the difference between Hong Kong and Burundi was 62:1 (Maddison, 2008, p. 76).

According to Maddison, the explanation of the causes of this significant divergence between the regions of first industrialization and the ‘rest’ is the greatest challenge for those who study economic growth (Maddison, 2001, p. 48). And we would add that it is also necessary to explain why this gap remains and continues growing. With the most recent information from the ‘Maddison Project Database’ (2020) we can analyze this structural inequality and verify that by 2018 the difference in GDP per capita between Western countries and the rest of the world is still maintained and widening. Table 10.1 shows, for example, the difference between the ‘Western Offshoots’ (USA, Canada, Australia and New Zealand) and (Eastern) Asia was

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Table 10.1  GDP per capita by region, 1820–2018. (2011 international dollar prices)

1820 1830 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970 1980 1990 2000 2010 2016 2017 2018

Western Europe 2307 2384 2580 2678 3034 3301 3585 4079 4724 5135 4884 6409 7185 7263 10,974 16,161 20,950 25,440 32,536 37,318 38,511 39,257 39,790

Eastern Europe 818 942 907 985 1358 1575 1886 2204 2700 2283 1343 2464 3209 4082 5779 8241 9933 10,344 8986 17,021 19,446 20,116 20,681

Western Offshoots* 2513 – – 3474 4214 4647 6019 6481 7741 9355 9741 10,297 11,621 14,773 17,472 23,210 28,787 35,619 44,329 48,090 51,668 52,597 53,756

Latin America 953 – – 1081 1588 1319 – 1673 1751 2194 2331 2700 3024 3713 4751 6286 8728 8132 10,225 13,453 14,090 14,087 14,076

Asia (East) 1089 – – 900 – 989 – – 1086 – 1160 1273 1361 1122 1735 3042 4212 6121 8164 12,853 15,698 15,956 16,327

Asia (South and South-­East) 929 – – 929 – 850 – 951 994 1143 1117 1299 1235 1070 1295 1546 1897 2574 3437 5367 6991 7306 7649

Middle East 974 – – 1000 – 1165 – – 1300 – 900 1600 2146 2393 3110 4801 6742 6435 9640 16,716 18,010 18,404 18,430

Sub-­ Sahara Africa 800 – – 800 – 800 – – 850 – 950 – 1100 1323 1574 1958 2026 1801 1981 3156 3491 3524 3532

Sources: (United States, Canada, Australia & New Zealand) Source: (Maddison Project Database, 2020 version. Bolt and van Zanden (2020). Maddison style estimates of the evolution of the world economy. A new 2020 update. In: https://www.rug.nl/ggdc/ historicaldevelopment/maddison/)

2.3:1  in 1820; by 2018, the difference was 3.2:1, comparing it with sub-Saharan Africa, the change goes from 3.1:1 in 1820 to 15.2:1 in 2018. Thus, it is possible to observe cycles of development and stagnation differentiated by regions and continents.In general, wealth (under the centuries-old wave of expansion of the capitalist system) has grown throughout the world despite these marked differences between territories. It is reasonable to assume that the (re)production of wealth will continue to increase in the near future given the increasing proletarianization of the third world and the creation of new markets in pre-capitalist areas under the premise that the rate of capital accumulation depends on constant expansion (Gomez Garza, 2018). However, peripheries do not ‘develop’ under the same conditions as metropolitan countries. This is a development of underdevelopment (Gunder Frank, 1966) to which peripheries are subject, wherein their ‘industries’ are subordinated to the production needs of the dominant nuclei, who determine under what conditions they

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integrate into the world market. Through the analysis of data from several centuries, J. Williamson has recorded the way in which peripheries are subject in the long term to the ups and downs of industrialization and deindustrialization according to the hegemonic interests of the centers. This creates dependent and specialized economies in very specific industries, intensive in labor and in the production of raw materials (Williamson, 2011). According to T. Piketty in his famous book Capital in the Twenty-first Century (2014), the causes of the growing inequality between regions lie in this subordination to foreign investment and its accumulation patterns. In contrast, in successful cases of certain ‘self-determination’ such as those of emerging economies like South Korea, Taiwan or China, a fundamental component has been the financing of their own development by imposing strong protectionist measures while simultaneously raising educational and technical training standards. These conditions have allowed them to better close the gap with the bloc of advanced capitalist countries: In essence, all of these countries themselves financed the necessary investment in physical capital and, even more, in human capital, which the latest research holds to be the key to long-term growth. (Piketty, 2014, p. 90)

Additionally, we must consider that inequality is not only present among countries or regions, but that it also occurs within internal social structures. And even though inequality within developed countries has grown significantly since the 1980s,2 the social distribution of wealth has become even more rapidly polarized internally in developing countries: Income inequality has nevertheless narrowed, but remains high, in many developing countries and emerging market economies […] Despite a narrowing of income gaps that has taken place since the 1990s in many parts of the world, especially in Latin America, income gaps between rich and poor remain much higher in those countries than in the OECD area […] This is the case in Brazil, where the ratio between the richest 10% and the poorest 10% still stands at 50:1. And in South Africa, inequality has continued to rise and now it is over 100:1 […] In China, income disparities actually increased from the early 1990s to 2005, but they began to fall again more recently (OECD, 2015, p. 29)

Having established why we consider that subordination of peripheral countries is historical and structural in the long term, and that it is not an economic inheritance that can change in the short or medium term, we go on to explain specific cases where what we have called historical responsibility and that remains valid today, can be clearly appreciated, specifically in relation to migratory movements. We will now address three categories or general forms of migratory debt that we consider emblematic for the discussion: (a) due to economic colonialism; (b) for environmental reasons; and (c) caused by violent or armed conflicts.

2  “Since the 1980s, income inequality has risen in most OECD countries. A quarter of a century ago, disposable income of the 10% of earners was on average around 7 times higher than that of bottom 10%; by 2010, it was around 9½ times higher. Since the mid-1980s, average inequality in OECD countries has risen by almost 10% to just under 32 Gini points, the standard measure of inequality.” (Keeley, 2015, pp. 32–33)

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(a) The migratory debt due to economic colonialism Among the points addressed by the world-systems analysis the economic one is the center of a large part of the explanations offered by such a theoretical perspective. It is clear that the predatory activity of the centers over the peripheries is aimed at the search for economic growth, and although during the first stages of the expansion of the capitalist world-economy, domination was inevitably coupled with military domination given the need to integrate non-capitalist populations into the reproductive sphere of its way of life and establishing new markets, today domination depends less and less on the threat of war and more on unequal trade agreements. This historical process of expansion by way of arms corresponds to the primitive accumulation of capital described by K. Marx. In the most advanced stages of capitalism, i.e., the real subsumption of the world by capital, the warlike element has no longer been so decisive. Economic domination is imposed in a natural way since the populations already absorbed by the capitalist mode of (re)production cannot develop without the mechanisms of the market. Hence the marked trend towards integration in the production and consumption of every human group, thus detaching it from any alternative of self-subsistence. In this way, we move from territorial dominance —military colonialism— to another form of dominance that is apparently self-inflicted: economic colonialism. The panorama that dependency theorists described towards the 1940s and later, was above all, a scenario of economic colonialism, in which Latin American nations were forced to specialize in the production of raw materials and to depend on products with a high technological content produced by developed countries (Dos Santos, 2002), which inevitably gave rise to what is known as unequal exchange. Surely the most paradigmatic case of this condition is that of African countries, particularly from sub-Saharan Africa. F.  Cooper describes them as gatekeeper states. This refers to the fact that many of the nation states maintain an influential colonial bond and still operate as ‘administrators’ for the metropolitan countries, opening and closing doors in accordance to dominant foreign interests. This despite having achieved independence several decades ago, after the national liberation movements that swept the region towards the middle of the last century (Cooper, 2009). The African continent, despite its abundant natural resources, still shows severe long standing and structural backwardness. Following our line of argument, this purported ‘independence’, which is indeed structurally subordinated, is due in large part to the fact that the colonial powers left nation states without solid and autonomous institutions, or diversified economies. This came as a consequence of the preponderant extractivist model of colonial interests, instead of local economic development. In this sense, the situation does not seem to have changed for the better during the independent period and foreign extractivism continues more active than before with different mechanisms for labor exploitation, and for obtaining and appropriating resources. While the case of sub-Saharan Africa today is the most obvious case of economic colonialism, extreme poverty and blatant unequal exchange, the same conditions can be found in multiple regions of the global South. With the crises of Welfare

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States and the economic opening driven by the application of neoliberal policies in the late twentieth century, that continue to this day, peripheral economies have been forced to enter deindustrialization processes due to the inability to compete with the productive capacity of the great powers (Williamson, 2011). Subcontinental regions such as Latin America have become enclaves of cheap labor destined for the cheap assembling and manufacturing industry and areas for the extraction of raw materials. Hence, several Latin American authors begin to theorize about the phenomenon of the ‘reprimarization’ of economies (Almeyra, 2014). Thus, the twenty-first century seems to be redefining the attributes of economic colonialism towards what we can call extractive imperialism (Veltmeyer & Petras, 2014) given the exponential growth of the world economy in recent decades, which has activated conflicts between hegemonic powers for control of economic space and new markets that are increasingly scarce. All this, of course, entails a series of social and environmental costs that are absorbed by the third world and that have a direct impact on the well-­ being of its populations. Taking this context into account, and as we showed in the previous section, it is undeniable that the massive contemporary migration movements are explained by these predatory dynamics of the centers over the peripheries that have led to a generalized impoverishment of entire sectors of peripheral societies. (b) The migratory debt due to environmental causes It is tempting to think that a good part of the problem, both about climate change and migratory waves, is the increasing number of humans on the planet. However, we must not get carried away by the notion that overpopulation is the main problem. In many of the most dramatic projections of global warming, demographics are not considered a relevant factor, as warming occurs very much regardless of whether the population is growing or not.3 The problem in broad terms is consumption patterns, specifically those of the more developed nations and of those like China that are in the race to match the consumption levels of the industrialized world. To guide the analysis, it is enough to mention that ‘the richest 10% of the world’s population (c.630 million people) were responsible for 52% of the cumulative emissions [from 1990 to 2015] […] The poorest 50% (c.3.1 billion people) were responsible for just 7% of cumulative emissions’ (Oxfam, 2020, p. 2). And if we take the analysis to the scale of national states, we can see that the pattern repeats itself, it is the developed nations that bear the responsibility for a huge part of greenhouse gas emissions since the Industrial Revolution began:

 In this regard we take the following quote:

3

“Population growth is not a major contributing factor. Our model is not a ‘business as usual’ scenario, but rather is based on data which already show the effect of emission mitigation policies. Achieving the goal of less than 1.5 °C warming will require carbon intensity to decline much faster than in the recent past.” (Raftery, 2017: 637).

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The United States is an unambiguous leader, with a contribution of more than double that of China, which falls second in the ranking. Russia, Brazil, India, Germany and the United Kingdom represent the third through seventh largest contributors to observed warming. In general, individual country climate contributions decrease rapidly moving down this list. These top seven countries alone account for 63% of the warming up to 2005; the top 20 countries […] account for 82% of the observed warming (Matthews, 2014, p. 3).

It is important to offer this historical account given the trend of emerging countries rising in the ranking of emissions, just like China, already the largest emitter of carbon dioxide today. And of course, with the relocation of many transnational capitals, typical of the neoliberal period, it is possible that the emissions of recent decades attributed to developing countries are indeed produced by companies from developed countries that have established themselves outside their countries’ borders due to better conditions for the exploitation of labor and natural resources. Or, to satisfy the consumption of a population that is increasingly polarized as well as sophisticated in its consumption patterns (Riechmann, 2015). At first, the recent agreements that led to the G-20 supporting the imposition of a minimum global tax of 15% on transnational companies or the introduction of a tax at border crossings, transferable to consumers, on the carbon emissions required to produce certain goods, seem to be going in that direction.In his conclusions, Matthews (2014) makes the hegemonic economies of the ‘historically central’ countries accountable in different dimensions and scenarios. Even China and India, who are placed within the top 5 largest emitters, appear to be largely so simply because of the size of their territories and their populations. In fact, when the figure is adjusted based on per capita indicators or based on geographical extension, they barely fall within the top 20, while the United States and the United Kingdom continue to occupy the first positions regardless of the type of indicator used. And the weight of the problem not only falls on the metalworking industry of developed countries, but there are cases of ‘backward’ countries that, in the absence of a diversified economy, have emission levels worthy of an industrialized economy but only due to systematic deforestation, such as Nigeria or Indonesia. This latter case is worthy of attention since in 2015 more than 3.6 million hectares had been transferred to foreign entities for private exploitation and extraction (Gardner, 2015, p. 110). Thus, it is the economically more developed countries with reduced populations who are mainly responsible for the environmental debacle that we face, so much so that: “In 2010 the OECD countries accounted for 74% of global GDP but only 18% of the global population” (Steffen, et al., 2015, p. 91). And although many developing countries appear to contribute significantly to the increase in emissions and destruction of the biosphere, the main economic forces driving the environmental disaster remain the same. Even in cases where large emissions occur in peripheral countries, those responsible are usually transnational companies or investments that can be traced to countries with more advanced economies under current wealth measurement standards. Thus, a 2014 study analyzing the period from 1854 to 2010 concludes that almost two thirds of all carbon dioxide (CO2) and industrial methane (CH4) emissions are attributable to 90 companies producing oil, coal, natural gas and cement (Heede, 2014, p. 229). A subsequent investigation published in 2017

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takes these figures further and places direct responsibility on those same 90 producers for the percentages of carbon dioxide emissions, sea level rise and surface temperature. In this line of thought, this study comes to the conclusion that those responsible for the changes occurred from the end of the nineteenth century to the first decade of the twenty-first century are hegemonic interests geographically localizable in what constitutes the notion of the Global North. The study of this long-­ term trend shows how difficult it is to dethrone the great powers of the world economy even within a broad historical context: Recent findings that nearly two- thirds of total industrial CO2 and CH4 emissions can be traced to 90 major industrial carbon producers have drawn attention to their potential climate responsibilities. Here, we use a simple climate model to quantify the contribution of historical (1880–2010) and recent (1980–2010) emissions traced to these producers to the historical rise in global atmospheric CO2, surface temperature, and sea level. Emissions traced to these 90 carbon producers contributed ∼57% of the observed rise in atmospheric CO2, ∼42–50% of the rise in global mean surface temperature (GMST), and ∼26–32% of global sea level (GSL) rise over the historical period and ∼43% (atmospheric CO2), ∼29–35% (GMST), and ∼11–14% (GSL) since 1980. (Ekwurzel, et al., 2017, p. 579).

Thus, those who carry the everyday effects and costs of climate change are not the ones who have more responsibility in the matter, since: Poor countries are located in the identified hotspot regions of increasing temperature variability. A growing body of climate-economy literature shows that poor countries are particularly vulnerable to weather and climate shocks, whereas rich countries tend to show no significant vulnerability (Bathiany, et al., 2018, p. 5).

This set of considerations necessarily lead to a serious discussion on ‘climate justice’, not only because poor countries are the most vulnerable to climate change, but also because as capitalism expands intensively, the resource depredation of the centers over the peripheries is intensifying and the mechanisms to avoid it or compensate the damage are practically nil or in the making.It is practically a fact that most of the population growth into the future will take place in emerging or underdeveloped countries where socio-environmental conflicts are now more acute, and the deterioration of the environment is rampant. And on the other hand, as it has been thus far, most of the economic growth and accumulation will occur in developed countries, highlighting the simple fact that the problem is not population growth as such, but overproduction and overconsumption of a very small part of the global population. In this way, “While the most important source of environmental pressure comes from the global North and its high carbon footprint per capita, high population growth in the global South is expected to –under current conditions– reinforce environmental pressures and enhance global inequality” (UNEP, 2019, p. 25). Under the multiscale analysis of the world-economy and from the stance we are taking, we must emphasize that migratory movements attracted by the economic activity and prosperity of more developed and secure territories do not always have the Global North as their final objective. A sizable amount of forced migration occurs within peripheral countries and regions themselves, adding pressure especially on urban spaces. Thus, a World Bank report published in 2018 concluded that

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under a business-as-usual scenario, hundreds of millions of people will be forced to migrate due to anthropogenic climate change, especially from areas already affected by poverty and insalubrity: This report, which focuses on three regions—Sub-Saharan Africa, South Asia, and Latin America that together represent 55  percent of the developing world’s population—finds that climate change will push tens of millions of people to migrate within their countries by 2050. It projects that without concrete climate and development action, just over 143 million people—or around 2.8  percent of the population of these three regions—could be forced to move within their own countries to escape the slow-onset impacts of climate change. (Kumari Rigaud, et al., 2018, p. xix).

The report takes three reference scenarios, one pessimistic, one for more inclusive development and one for more environmentally friendly development. However, given the advanced level of environmental destruction and the pace of deterioration, the number of migrants forced to change their places of residence will be counted by the millions in any of those scenarios. This trend will grow as the effects of climate change become more evident; this is a rampant reality. Facing the necessary attention to this floating or newly established population, be it “illegal or not”, becomes imperative globally. (c) Debt on account of war and other armed conflicts There are cases where it is difficult to attribute historical responsibility directly to the developed countries for the misery of the underdeveloped countries. For example, in the case of climate refugees who move due to desertification caused by the increase in the average global temperature, the causes of global warming can be traced back to the industrial activity and consumption patterns of the metropolises of the world-system. However, it must be said that it is not a phenomenon that immediately and culpably impacts the common sense of the citizens of prosperous nations. However, the same cannot be said of armed interventions or warfare sponsored by the great powers through the deployment of their interests on the ground. Many of these displacements caused with a high degree of violence are openly and clearly attributable to hegemonic economic interests in conflict zones. Thus, for example, despite the continuous securitization of the “abysmal borders” between Europe and the Middle East, displaced population from Syria, Iraq or Afghanistan keeps arriving in Europe constantly and irretrievably. Undoubtedly, the waves of refugees fleeing their homes haunted by violence are related to the armed interventions of developed countries in the region, which have obvious economic interests linked to the exploitation of natural resources, mainly hydrocarbons. The prevalence of the interests of the United States or Russia and their allies can be traced for decades in the area, evoking moments of escalating tension and violence typical of the Cold War. From this angle, the direct action of conflicts promoted by the force of foreign dominant interests and their consequences materialized in the forced displacement of large contingents is clearly visible in the countries that send migration. From a cosmopolitan vision of human rights, the notion of the historical debt of multiple

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nations of the developed and prosperous world with the population of the countries of the underdeveloped periphery, seriously affected by the plundering of resources, violence, and instability, is undeniable. These conditions have been convenient and beneficial to the interests of the countries now targeted by the most numerous international migratory flows. The cases of the Middle East, Africa or Latin America are clear in this regard. However, these conditions of precariousness and vulnerability —central forces driving the expulsion of forced migration— are replicated with varying degrees of violence, institutionalized or not, in vast territories of the periphery. At this point, it becomes important to recognize that there are indeed de facto policies for the reparation or reception of refugees by enabling diplomatic protocols, setting up camps, assigning refugee quotas, granting residence to affected citizens or groups in other countries (ex-colonies or Sephardic communities, for example). Or, through integration, through specific practices and policies of sanctuary territories for irregular migration (Diaz Abraham, 2020). Despite these spaces for political action being scarce, we think that in the local sphere within democratic and territorially compartmentalized societies, there can be forms of historical compensation and, simultaneously, an instrument of community integration between residents and migrants. At the same time, we believe that the material basis of the most prosperous economies could be sufficient to assimilate the migratory flows caused by foreign policy and the deployment of the hegemonic interests of the Global North which, as argued by Kingsley (2016), feed the phenomenon: In a way, the refugee crisis is something of a misnomer. There is a crisis, but it’s one caused largely by our response to the refugees, rather than by the refugees themselves. The figure 850,000 sounds like a lot –and in terms of historic migrations to Europe it is. But this is only about 0.2 per cent of the EU’s total population of roughly 500 million, an influx that the world’s richest continent can feasibly absorb, if –and only if– it’s handled properly. There are countries whose social infrastructure is at breaking point because of the refugee crisis – but they mostly aren’t in Europe. The most obvious example is Lebanon, which in 2015 housed under 1.2 million Syrian refugees within a total population of roughly 4.5 million. That’s one in five people –a ratio that the European leaders should have been embarrassed by (Kingsley, 2016, pp. 10–11).

At this point, it becomes relevant to awaken consciences and look towards the actions and policies that generate the great contemporary migratory movements, since the network that associates them is evident. Democracy, even procedural, which exists in a large part of countries, must function as an instrument capable of regulating processes of economic devastation, natural resources, militarization, or impoverishment, even outside borders. An important citizen impact on the matter can occur in the integration of new political agendas in this regard and that are endorsed at the polls. In this way, community awareness among resident citizens about the origins of immigration plays a determining role for community integration (Diaz Abraham, 2017) and the implementation of historical compensation policies and practices.

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10.3  E  valuation: Globalization, International Migration, and Human Rights Just as we are writing our closing thoughts on this matter (on August 2021) the international media is flooded with news of a brand new migratory wave of refugees fleeing from Afghanistan due to the rise of the Taliban, millions are fleeing from the political control of a group which was originally formed as a militia to oppose the Soviet intervention during the Cold War and was at one point financed by the United States of America. The Taliban rose from the ashes of the Cold War but remained a political actor that with the years refused to fall under the control of Western super powers and became increasingly violent and embraced Islamic fundamentalism. This crisis that has been brewing for years is just getting started and millions of refugees will come knocking on Europe’s doors, time will tell if the West will acknowledge any substantial responsibility in the matter and take relevant action to mitigate the humanitarian crisis. As the North’s debt to the South continues to grow and poverty in the South expands in absolute terms, people continue to seek and find life alternatives. And although the globalization that surrounds us to a large extent has resulted in the intensification of economic relations with flows and concentration of capital, international migration has not been approached in equally open ways. In fact, the policies to manage migration have, in general terms, tended towards securitizing borders and hardening migration policies in central countries. In this sense, if we start from the idea of ​​the exercise of human rights in a universal way in a context of intensification of global economic forces, there is a conceptual contradiction between freedom in the transit of goods and money on the one hand, and restrictions to forced human mobility for the reasons outlined above, on the other. The cosmopolitan foundation of human rights constitutes a kind of ‘common moral language’ (Beitz, 2009) for global society and is an instrument capable of harmonizing these two phenomena (globalization and international migration) that are now in open conflict. This foundation fosters the construction of cosmopolitan or post-national citizenship (Velasco, 2020), which represents a significant step towards raising awareness among the citizens of the receiving nuclei and the consequent re-elaboration of the social and, therefore, political narrative around contemporary massive streams of immigration (Diaz Abraham, 2020). In order to illustrate some of the possible means available for the materialization of compensation or indirect reparation of what we have called migratory debt, we believe that the case of sanctuary cities in the USA can offer us some important guidelines for these conclusions. A significant number of sub-national territorial entities in that country carry out practices and policies that provide, within their competencies, a real basis for the de facto recognition of the universal human rights of irregular immigrants under an inclusive conception of cosmopolitan citizenship.

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In a complementary way, it is essential to raise awareness among citizens of the most prosperous nations about the origins of migratory flows and their connection with certain surplus forms of life. Likewise, it is necessary to undermine, before public scrutiny, the principles of foreign policy of most of the nations that draw and emphasize this ‘abysmal line’, when the holistic and universalist vision is imposed as a forceful and systemic reality. Sanctuary cities can function as a catalyst for this transformation, raising awareness and a sensitivity towards global problems that are being perceived as sectioned and not in their total magnitude. It must be clarified that until now these territories are not sanctuaries of immigration as such, if not many times they act in defense of the self-determination of local and intermediate governments against the central governments and their agencies. However, there are local public policies and practices that point towards the defense of human rights with a clean slate. For example, several cities in the USA prevent emergency services and corporations’ agents from learning about the immigration status of victims or witnesses. According to Chen’s data, this measure has resulted in better community integration as irregular immigrants maintain contact with local authorities for matters of public safety and protection of the basic rights of immigrants in matters that are beyond their territorial mandate, such as the case of immigration control. In fact, several demarcations have made explicit in the discourse and in the facts the recognition of the ‘right to the city’ by irregular but established immigrants. As a positive action, some cities and counties have issued official identifications (driver’s licenses, for example) so that those who reside in the districts can have a form of personal identification regardless of immigration status. To validate the information of ‘undocumented’ immigrants, the local authorities of various cities and counties take the so-called ‘matrículas consulares’ as valid, specifically issued by the Mexican government to its citizens living abroad. This proof of consular registration, in turn, allows for the identification of immigrants considered irregular in their migration status, but de facto residents, especially when they represent large groups in the demarcation. Another aspect of the issue of compensation is presented at this point as an intersection between the foreign policy of the Mexican government —and its clear interest in attracting economic remittances— and the construction of a policy of social integration from the local level in the USA is generated. This practice of paradiplomacy makes it possible to make groups excluded from the formal means of participation and representation visible, but it offers the possibility of universal access to basic emergency services and assistance. Thus, local governments are potentially a strategic ally in an extremely complex task and with different fronts for international cooperation. Finally, we consider this an appropriate moment to foster the debate around the human rights cosmopolitan conception and the mechanisms that are conducive to global and local policies for the historical compensation of forced migration. Meanwhile, the migratory debt, along with the environmental debt, remains a historical liability of the developed North.

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10.4  Conclusion This chapter has analyzed critically the characterization of massive migratory movements as a direct consequence of the actions of developed countries. Domination/subordination is historical and structural, and it has been perpetuated for centuries through the different economic power transformations of the metropolises manifested in economic policies, armed interventions, or the dispossession of resources. The development of this type of research contributes to deepening the debate on reparation policies and on who and how should carry them out, especially now when displacements are in the millions and are expected to continue to grow in magnitude. It is a humanitarian catastrophe, at a time when the wealth of certain countries continues to grow in proportion to the misery of others. It is now necessary to recompose the nationalist vision of the exclusive ownership of human rights, which is limited to its localized action, and shift it towards an emancipatory conception based necessarily on a counter-hegemonic conception of cosmopolitan legality (Santos, 2002).

References Almeyra, G., Concheiro, L. Mendes, J. & Porto, C. (2014). Capitalismo: Tierra y poder en América Latina (1982–2012) (Capitalism: Land and power in Latin America (1982–2012). Universidad Autónoma Metropolitana/Clacso. Bathiany, S., Dakos, V., Scheffer, M., & Lenton, T. (2018). Climate models predict increasing temperature variability in poor countries. Science Advances, 4(5), 1–10. Beitz, C. (2009). The idea of human rights. Oxford University Press. Bolt, J. & Van Zanden, J. (2020). Maddison style estimates of the evolution of the world economy. A new 2020 update. Retrieved from Maddison Project Database: https://www.rug.nl/ggdc/historicaldevelopment/maddison/ . Cooper, F. (2009). Africa since 1940: The past of the present. Cambridge University Press. Diaz Abraham, L. (2020). Human rights education as a link to the counterbalance strategy of the sanctuary cities against federal immigration programs in the USA. In J. Zajda (Ed.), Human rights education globally (pp. 91–107). Springer Nature. Diaz Abraham, L. (2017). Globalization, decentralization and local governments international networking on human rights. In J. Zajda & S. Ozdowski (Eds.), Globalisation, human rights education and reforms (pp. 73–86). Springer Nature. Dos Santos, T. (2003). Dependency theory. Random House Mondadori. Ekwurzel, B., et al. (2017). The rise in global atmospheric CO2 surface temperature, and sea level from emissions traced to major carbon producers. Climatic Change, 144, 579–590. Gunder Frank, A. (1966). The development of underdevelopment. Monthly Review, 18(4). Retrieved from doi:https://doi.org/10.14452/MR-­018-­04-­1966-­08_3 Gardner, G. (2015). Pérdidas crecientes de recursos agrícolas (Mounting losses of agricultural resources). In G. Gardner, T. Prugh, & M. Renner (Eds.), La Situación del Mundo 2015. Un Mundo Frágil: Hacer frente a las amenazas a la Sostenibilidad (State of the world 2015: Confronting hidden threats to sustainability state of the world 2015) (pp. 101–118). Worldwatch Institute.

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Gomez Garza, R. (2018). De leyes y límites del capitalismo en la larga duración (Of laws and limits of capitalism in the long duration). Universidad Autónoma Metropolitana Cuajimalpa. (ebook). Gore, T. (2020). Confronting carbon inequality putting climate justice at the heart of the Covid-19. Oxfam Media Briefing, 1–12. Retrieved from: https://oxfamilibrary.openrepository.com/bitstream/handle/10546/621052/mb-­confronting-­carbon-­inequality-­210920-­en.pdf Heede, R. (2014). Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010. Climatic Change, 122, 229–241. Keeley, B. (2015). Income inequality: The gap between rich and poor. OECD Publishing. Kingsley, P. (2016). The new odyssey: The story of Europe’s refugee crisis. Guardian Faber. Rigaud, K., et al. (2018). Groundswell: Preparing for internal climate migration. The World Bank. Maddison, A. (2001). The world economy: A millenial perspective. oecd. Maddison, A. (2008). The west and the rest in the world economy: 1000–2030. Maddisonian and Malthusian interpretations. World Economics, 9(4), 75–99. Martínez Alier, J. (1997). Deuda Ecológica y Deuda Externa (Ecological debt and external debt). Ecología Política, 14, 157–173. Matthews, D., et  al. (2014). National contributions to observed global warming. Environmental Research Letters, 9, 1–9. Retrieved from: http://iopscience.iop.org/ article/10.1088/1748-­9326/9/1/014010/pdf O’Connor, J. (1998). Natural causes—Essays in ecological Marxism. Guilford. OECD. (2015). All on board: Making inclusive growth happen. OECD Publishing. Oxfam. (2020). Confronting carbon inequality. Putting climate justice al the heart of the COVID-19 recovery, 21 September 2020. Oxfam media briefing. Piketty, T. (2014). Capital in the Twenty-First Century. Harvard University Press. Pomeranz, K. (2000). The great divergence: China, Europe, and the making of the modern world. Princeton University Press. Raftery, A., et al. (2017). Less than 2 °C warming by 2100 unlikely. Nature Climate Change, 7, 637–641. Reinert, E. (2007). How rich countries got rich… and why poor countries stay poor. Constable. Riechmann, J. (2015). Autoconstrucción: la transformación cultural que necesitamos (Self-­ construction: The cultural transformation we need). Los Libros de la Catarata. Santos, B., & Mendes, J. (2020). Demodiversity: Towards post-abyssal democracies. Routledge. Santos, B. (2002). Toward a multicultural conception of human rights. In B. Hernández-Truyol (Ed.), Moral imperialism. A critical anthology (pp. 39–60). New York University Press. Steffen, W., et  al. (2015). The trajectory of the Anthropocene: The great acceleration. The Anthropocene Review, 1(2), 81–98. United Nations Environment Programme (UNEP). (2019). Global environment outlook 6: Healthy planet, healthy people. Cambridge University Press. Velasco, J. (2020). Migraciones Internacionales y derechos Humanos desde una Perspectiva Cosmopolita (international migrations and human rights from a cosmopolitan perspective). In J. Avila, H. Hernández, & M. Cervantes (Eds.), Migraciones, Injusticias y Salud (Migration, injustice and health) (pp. 37–50). Universidad Nacional Autónoma de México. Veltmeyer, H., & Petras, J. (2014). The new extractivism: A post-neoliberal development model or imperialism of the twenty-first century? Zed Books. Wallerstein, I. (2004). World-systems analysis: An introduction. Duke University Press. Williamson, J. (2011). Trade and poverty: When the third world fell behind. Massachusetts Institute of Technology.

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Leonardo Diaz Abraham is Professor at the Social Science Department of the Universidad Autónoma Metropolitana (Mexico). Dr. Diaz Abraham holds a MA and a PhD degree in Political Science from Universidad Complutense de Madrid (Spain). His research and academic interests and publications focus on international cooperation system, internationalization of local governments, Mexican foreign policy, multilevel governance, human rights, education, environmental defense and international migration policy. He is a member of the National Researchers System (Mexico). E-mail: [email protected]  

Rodrigo R. Gomez Garza has a degree in Economics from Universidad Nacional Autónoma de México (UNAM), a masters degree and a PhD in Social Sciences and Humanities from Universidad Autónoma Metropolitana (UAM). His lines of research are Political Economy, Environmental Economics and Geographical Economics from a Long Duration perspective. E-mail: ­[email protected]  

Chapter 11

Mandatory Retirement of Older Adults: Notes from Iceland Jan Marie Fritz

Abstract  This chapter focuses on mandatory retirement, a rather hidden and unaddressed social justice issue. Mandatory retirement  – sometimes referred to as forced, enforced, statutory or compulsory retirement – is the age at which persons who hold certain jobs or offices are required by business, custom or law to leave their work. While countries frequently discuss increasing concern about care for ‘the elderly’, many of these same countries have mandatory retirement rules for older adults. People often seem surprised that older adults can be seen as less valued in some societies and do not connect this, at least in part, to whether there is an imposed normative structure of mandatory retirement. There does not seem to be recognition that mandatory retirement is a discriminatory act. While some information is provided about mandatory retirement in a few countries, the focus is on Iceland, a progressive country recognized as number one in the world for gender equality, but also a country with a mandatory retirement policy. The chapter covers the following topics: social justice and human rights; ageism and the history of mandatory retirement; the case of Iceland; and stories of those who have experienced forced retirement. These sections are followed by one which contains suggested actions. Keywords  Ageism · Democracy · Equality · Forced retirement · Human rights · Iceland · Gender equality · Mandatory retirement · Social justice

I would like to thank the Fulbright Program, the Fulbright Commission in Iceland and the University of Iceland´s Institute for Sustainabililty Studies for giving me the support and time to conduct this research. J. M. Fritz (*) University of Cincinnati, Cincinnati, OH, USA e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_11

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11.1  Introduction This chapter focuses on mandatory retirement, a rather hidden and unaddressed social justice issue. Mandatory retirement  – sometimes referred to as forced, enforced, statutory or compulsory retirement – is the age at which persons who hold certain jobs or offices are required by business, custom or law to leave their work. While countries frequently discuss increasing concern about care for ‘the elderly’, many of these same countries have mandatory retirement rules for older adults. People often seem surprised that older adults can be seen as less valued in some societies and do not connect this, at least in part, to whether there is an imposed “normative” structure of mandatory retirement. While there are many who think retirement (with a good pension) is something everyone would want, there are older adults who do not want to be forced to retire. Countries are moving to increase the age of mandatory retirement because of a concern that there will not be a sufficient number of young people to support pensions for older adults but are not eliminating mandatory retirement. There does not seem to be recognition that mandatory retirement is a discriminatory act. While some information is provided here about mandatory retirement in a few countries, the focus is on Iceland, a progressive country recognized as number one in the world for gender equality, but also a country with a mandatory retirement policy. This chapter covers the following topics: social justice and human rights; ageism and the history of mandatory retirement; the case of Iceland; and stories of those who have experienced forced retirement. These sections are followed by one which contains suggested actions and then there are some concluding remarks.

11.2  Social Justice and Human Rights According to the United Nations Department of Economic and Social Affairs (2017), social justice is An underlying principle for peaceful and prosperous coexistence within and among nations… We advance social justice when we remove barriers that people face because of gender, age, race ethnicity, religion, culture or disability (United Nations Department of Economic and Social Affairs, 2017).

A part of working toward a more equal society is governments’ fair and respectful treatment of all which includes removing some of the barriers to the full acceptance of people who are older (Turnbull, 2020). And human rights documents, particularly when they are hard laws (actual laws) or soft laws (influential documents that may influence the development or revision of laws), can be powerful tools to help us achieve social justice. Many countries have documents that makes it illegal to

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discriminate. UNECE (United Nations Economic Commission for Europe, 2019) has noted, for instance, the EU Council Directive 2000/78/EC that specifically mentions age as a ground for discrimination. There are a number of human rights documents which might be discussed in relation to aging, but many of them, including the Universal Declaration of Human Rights, only have statements which might refer to aging. As stated by Fredvang and Biggs (2012, p. 12), “No treaty offers older persons a tailored, comprehensive and binding protection of their rights.”1 Needless to say, there is little or nothing said about work of older adults and nothing about mandatory retirement. Since aging is not dealt with in a specific way, the United Nations General Assembly, in 2010, adopted Resolution 65/182 which established the ‘OpenEnded Working Group on Ageing for the Purpose of Strengthening the Human Rights of Older Persons’. The Group’s mandate is to review the existing international documents regarding the human rights of older adults, identify any possible problems and present ‘at the earliest possible date’ a proposal with ‘the main elements that should be included in an international legal instrument to promote and protect the rights and dignity of older persons’ (UN General Assembly, 2013, p.  3). Many human rights groups, non-governmental organizations and some states see the need for a Convention on the Rights of Older Persons. The United Nations Open-Ended Working Group on Ageing was established in 2010 but there still is no draft proposal for a convention. The discussion in the eleventh meeting of the Working Group, in 2021 (p. 12), indicated that “the existing international human rights instruments, the United Nations Principles for Older Persons, the Madrid International Plan of Action on Ageing and the 2030 Agenda contained very limited or no specific recognition of access to justice for older persons.” The 2021 meeting focused on the ‘Right to Work and Access to the Labour Market’. While mandatory retirement is not mentioned in the report of that meeting, the report did include the following (UN Open-ended Working Group on Ageing, 2021, p.14): Delegations agreed on the need to address ageism at all levels. Several delegations shared national experiences of initiatives aimed at promoting the human right of access to work among older persons, including training programmes for employers and changes in retirement legislation to allow for more flexibility (UN Open-ended Working Group on Ageing, 2021, p.14)

1  Doran et al. (Doron et al., 2018, pp. 306–307) do note that ¨starting from the 1990s and with increasing momentum in the last decade,¨ age has been mentioned in connection to important documents (e.g., general comments of the Committee supervising the Covenant on Economic and Social and Cultural Rights, a general recommendation of the Committee supervising the Convention on the Elimination of all forms of Discrimination against Women and comments of the UN Independent Expert on the Enjoyment of All Human Rights by Older Persons).

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11.3  The History Ageism has been defined as the’ stereotyping, prejudice about and discrimination against people on the basis of their age’ (UNECE, 2019). It is seen as ‘largely implicit, subconscious and unchallenged in our societies’ (UNECE, 2019).2 While ageism can affect people at any age, older adults particularly are affected and there can be serious consequences.3 In discussing institutional ageism, the World Health Organization (2021a, p. 6) provided two examples: policies in the health sector that allow care to be rationed by age and in the labour sector, discriminatory hiring practices or mandatory retirement ages. There have been discussions of the history of pensions as well as retirement for many years but there is no global history of mandatory retirement.4 Many of the recent articles/chapters/ opinion pieces are quite passionate (and divided) in their approaches to this topic. For instance, one finds pieces with titles such as ‘Forced Retirement Goes Out of Style’ (Williams, 2012); Scrap Mandatory Retirement Age, Career Development International, 2002); ‘The ‘Deeply Toxic’ Damage Caused by the Abolition of Mandatory Retirement and Its Collision with Tenure in Higher Education’ (Earle & Kulow, 2015) and ‘Korea’s Retirement Predicament’ (Klassen & Yang, 2013). There also are ominous titles such as ‘Health Status of Workers approximately 60 Years of Age and the Risk of Early Death after Compulsory Retirement’ (Sakurai et al., 2019). As noted in almost all recent publications about retirement, people are living longer and there are less young people to support the pensions of those who are older. When the age is raised in many countries with mandatory retirement laws, the age at which one can receive a pension has been raised as well as the age of mandatory retirement. In general, labor unions and many adults approaching retirement age do not want the age at which they might receive pensions to be raised. While there are some countries that do not have mandatory retirement in most cases for older adults5 (e.g., United States, Canada, United Kingdom, New Zealand, Australia), there are many more countries (e.g., Sweden, Iceland, Netherlands, 2  In the last decades, ¨research in Europe (with the exception of Israel and Latvia) has shown more people report experiencing age prejudice and discrimination followed by prejudice based on gender, and then race or ethnic background (Swift et al., 2018, p. 441). 3  Fialova and her colleagues (Fialova et al., 2018, p. 213) note that ¨medications and doses are often similarly prescribed to older and younger adult patients (and) this is a problem that must be viewed as ageist.¨ Age discrimination against older adults has been shown to “negatively affect health and well-being and can reduce life expectancy by up to 7.5 years” (UNECE, 2019). And Bodner et al. (2018), pp. 242–243) conclude ¨that evidence from across the globe… demonstrates that many mental health clinicians are less willing to work with older adults (even when there were suicidal tendencies), have negative assumptions about the effectiveness of psychotherapy with older adults and lack professional knowledge of the geriatric population.¨ 4  See, for instance, Wood et al. (2010). 5  In cases where public safety is involved, there may be rules for mandatory retirement. Additional employment areas also may be covered. The United States, for instance, has “exemptions available to employers, including... executives, high policy makers, judges, commercial airline pilots, firefighters and law enforcement officers, just to name a few (Willis, 2020, p. 74).

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Greece, South Africa, South Korea,6 Norway,7 Philippines, Thailand, Singapore, Nigeria, Eswatini, Kenya, Ethiopia, Portugal) that have mandatory retirement policies or allow organizations to set mandatory retirement rules.8 In some of these countries the age of mandatory retirement can be as low as 55 or 60. In South Korea, in some of the work sectors and companies ‘workers are habitually forced, through formal and informal mechanisms, to retire years before their contractual retirement age’ with those in the financial services sector retiring in their early 50s (Klassen & Yang, 2013, p. 3).” And some of the countries (e.g., India, Japan,9 Poland, Turkey, Israel10, China11) have mandatory retirement ages that are different for men and women with women being forced to retire at an earlier age. It should be noted that countries with mandatory retirement rules don’t always have those rules for all sectors. Mandatory retirement rules often are for public workers (such as those employed by the national government or working for public institutions). There are exceptions, however. The Netherlands, for instance, ‘abolished mandatory retirement for national-level civil servants in 2008, but not for employees in other sectors’ (Mulders, 2019, p.106). And a government may allow other sectors or companies to set their own mandatory retirement ages. Research has shown that many older workers face barriers in workplaces. In addition to mandatory retirement, these include job-seeking; recruitment/hiring practices; access to training opportunities, age-adapted working conditions; discriminatory attitudes and actions of co-workers and employers; as well as retention (UNECE, 2019; Abuladze & Perek-Bialas, 2018, pp.  461–462). And as Henkens & van Solinge (2021, p. 13) have indicated: ‘A low pension coverage combined with few opportunities for postretirement work are major risk factors for the well-being of current and future generations of retirees.’

6  According to Kim (2019, p. 394). “approximately half of South Korea’s elderly are in poverty (and) the job insecurity of aging workers is considered the main cause of (that) poverty.” 7  Norway raised the mandatory retirement age from 70 to 72 (though there was “strong opposition from the main employers’ organisations and from influential unions”) and pension reform “now grants a pension from the age of 62 (lowered from 67), with no income test” (Solem et  al., 2020, p. 123 8  It should be mentioned that the United Nations has a mandatory retirement age of 65 though there are some exceptions. 9  In 2016, 95.4% of companies had systems of mandatory retirement and for large companies (with 1000 or more employees) the rate was 99.7% (Asao, 2017, p. 17). Asao (2017, p. 17) does note that many companies now have ¨rehiring schemes.“ 10  “Israel allows mandatory retirement under the Retirement Age Law of 2004. (This law) permits compulsory retirement for men at the age of 67 and women at the age of 62” (Willis, 2020, p. 87). 11  Mandatory retirement ages currently are 60 for most men, 50 for women who are blue-collar workers and 55 for women who are white-collar workers (Slauvermann & Hu, 2018, p. 230; Wang & Dong, 2021).

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11.4  The Case of Iceland Iceland is a progressive country where “literacy, longevity, and social cohesion are first rate by world standards (cia.gov n.d.).” Iceland has a population of 354,230 and about 64% of this population is in the region around Reykjavik, the capital and largest city. Iceland has the world’s oldest legislative assembly (parliament) dating from 930. The country was independent for some 300 years and then ruled by Norway and Denmark. Iceland became completely independent from Denmark in 1944 and joined the European Economic Area in 1994. The ethnic composition of Iceland is 82% Icelandic and the largest minority (5% of the population) is from Poland. The population is rather young. About 20% of the population is 14 or younger with at least 19% over the age of 60. The percentage of older adults, however, is expected to grow to 25% in 2030 and over 30% in 2050 (Fontaine, 2016).12 Life expectancy is currently 83.45 years with males living to 81.21 years and females to 85.79. Iceland does very well in the world rankings. Iceland, for instance, ranks number 2 according to the World Happiness Report (Helliwell et al., 2021) and number 1 in gender equality (for the 12th time) according to the Global Gender Gap Report (World Economic Forum, 2021). The Women, Peace and Security Index 2021/22 uses 11 indicators13 to measure women´s inclusion. It notes that ‘only one country – Iceland – scores in the top quintile of countries across all l1 indicators’ and that Iceland ‘has the best possible scores on the justice dimension, with no legal discrimination against women… and all men agreeing that it is acceptable for a woman to have a job outside the home if she wants one’ (Georgetown Institute for Women, Peace and Security, & Peace Research Institute Oslo, 2021, p. 20). This index and many other sources have noted that in 2018, Iceland introduced the first policy in the world that requires companies and institutions with more than 25 employees to prove that they pay men and women equally for a job of equal value (Wagner, 2021).14 Iceland also ranks very high on the last Global Age Watch Index 2015 (Barry et al., 2015) that ranked many countries; it is number 7 in western Europe,

12  According to Stefansdottir and Sveinbjarnardottir (2019, p. 160), “research about older adults in Iceland is rare.” And Hardardottir and Bjornsdottir (2019, p. 354, 364) in their article about the “undervalued or hidden” informal care that older people in Iceland provide to family and friends noted a survey that indicated “only 52% of people over 67 years of age reported positive attitudes toward older people.” 13  “The index analyzes three dimensions (inclusion, justice and security) by using 11 indicators: education, financial inclusion, employment, cellphone use, parliamentary representation, absence of legal discrimination, son bias, discriminatory norms, intimate partner violence, community safety and organized violence (Georgetown Institute for Women, Peace and Security, & Peace Research Institute Oslo, 2021, pp. 1–2). 14  The Government of Iceland (2019), p.  62) discusses this achievement at length in describing Iceland´s implemention of Goal 8 (Promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all) in its 2030 sustainable development agenda. The Goal 8 section, though it includes four reminders to “leave no one behind,“ does not mention mandatory retirement of older adults.

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North America and Australasia. That index does not consider whether there is mandatory retirement. Iceland´s labor situation is somewhat complicated. Private employers and labor unions (almost every working adult and employer belongs to a professional or labor union) have labor agreements that may or may not set a mandatory retirement age. There also is guidance that public employees should retire when they are 70.15 People in the public sector expect to retire at that age even though it is not absolutely required (it is more of a normative practice) and many do not seem to know that extensions in some areas might be possible. Even if extensions are possible, almost all do not receive these. School teachers under government labor agreements, for instance, could approach their principals about getting an extension. Some teachers do not know of this possibility and principals almost always (perhaps always) do not give this possibility for a number of reasons. This may be because it has not been done in the past or because a principal thinks that if the possibility is given to one person, others may then ask for this right. According to several individuals, another reason this might not be considered is because there is a generous sick leave policy where a teacher could be out almost a whole year, then come back to work for 5 days and ask to be out again for almost a whole year. A principal might be afraid that this right could be abused. Unions are very aware that mandatory retirement ages are being raised in many countries. Unions know their members do not want to lose the option of early retirement16 and the pension that goes with it; so the discussion with the government usually revolves only around defending pensions rather than keeping the possibility of retirement at different ages without requiring that retirement be mandatory. Pensions in Iceland can be obtained beginning at the age of 67.17 The Mercer CFA Institute Global Pension Index for 2021 ranked retirement income systems in 43 countries based on their adequacy, sustainability and integrity. The highest rating this year (with a grade of A)18 went to Iceland (Mercer CFA Institute, 2021, p. 5). Iceland´s system was described as having ‘a relatively generous state pension; a private pension system that covers all employees with a high contribution rate that

 According to Stefansdottir and Sveinbjarnardottir (2019, p. 161), there is “no universal law (in Iceland) about retirement and in general, no such rules pertain to the private labour market, yet many companies also retire employees at the age of 70 years old.” 16  While this is generally true, it may be of more importance to union members who have held physically-demanding jobs for a long time. 17  “There is a basic state pension (national pension) which is income-tested. There are also mandatory occupational pensions… A full basic pension is earned with 40 years’ residency. The pension is proportionally reduced for shorter periods of residency… The pension age is… 67 for members of private-sector occupational plans but is 60 for seamen who have been working in this occupation for at least 25 years. The social security system guarantees a minimum pension to everyone even when very little, or nothing, has been paid into a pension fund… All working people are required to be members of a pension fund.” (OECD, 2017) 18  The other two countries receiving a grade of A were the Netherlands and Denmark. Countries receiving a D included Japan, South Korea, and India. 15

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leads to significant assets being set aside for the future19 and a well-governed and regulated private pension system that has good design features’ (Mercer CFA Institute, 2021, p. 1) Iceland has strong connections to Europe. While it is not a member of the European Union, it is integrated through the Agreement on the European Economic Area and the Schengen Agreement. Because of its connections, certain European Union directives are expected to be taken up by the Althingi (Iceland’s parliament) and become law.20 Iceland also develops its own hard laws and soft laws. This means that some European directives (whether they are required or not) could influence actions in Iceland… if they are agreed to by the Icelandic Althingi (Flovenz, 2021). Iceland does have documents that need to be considered when discussing the labor situation of older adults. The basic document would be the Constitution of the Republic of Iceland (Althingi, 1944) which entered into force on June 17, 1944 and has been amended eight times. The 80 articles in the document contain two that are particularly important when discussing mandatory retirement. The first, Article 65, says, in part, ‘All shall be equal before the law and enjoy human rights without regard to sex, religion, opinion, national origin, race, color, economic status, descent or other status’. The second, Article 75, is written as follows: Everyone is free to pursue the occupation of their choice. However, this freedom may be restricted by law, as required by the public interest (Althingi, 1944).

Another important document is the 1996 Act on the Rights and Duties of Government Employees (1996, no. 70, June 11th ; https://www.government.is/media/ fjarmalaraduneyti-­media/media/Starfsmannamal/Government_Employees_Act_ No_70_1996.pdf ). This Act never mentions the word ‘mandatory’, but does state the following in Article 43 about retirement age: ‘an employee shall normally resign from the beginning of the next month after he or she reaches the age of 70.’ And then there is the Act on Equal Treatment in the Labor Market (2018, no. 6, amended in 2020, https://www.jafnretti.is/static/files/English_gogn_a_ensku_sidu/act-­on-­ equal-­treatment-­on-­the-­labour-­market-­no-­86-­2018-­m-­br-­final-­sent-­230519.pdf).21 The first article of this act specifies that ‘This Act applies to equal treatment of persons in the labor market regardless of race, ethnic origin, religion, outlook on life, disability, incapacity for work, age’ However, Article 12, ‘Deviations due to age,’ states:

 The OECD (2017, p. 69) does not seem to consider this important private pension option when it concludes that some in OECD countries might “retire too early with insufficient future pensions… (and) early retirement age should be set high enough to make sure that individuals accumulate sufficient pension entitlements.“ 20  Elder law (or law and aging) ¨was virtually unknown in the field of law… before the early 1970s¨ in the United States and emerged much later in continental Europe (Doron et al., 2018, pp. 18-19). 21  The Director the Icelandic Human Rights Centre (Steinarsdottir, 2021b) thinks this Act is “the most relevant legislation” when considering whether mandatory retirement is acceptable or discriminatory. She also says that “a complaint can be made to the Equality Board and, if the Board does not rule in the complainant’s favor, the case can go to court.” 19

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Different treatment for age is not considered to be in breach of this Act if it is presented with objective arguments based on a legitimate aim, including employment policy or other goals concerning the labor market, provided he that such measures do not go beyond what is considered necessary to achieve that goal aimed at (The Act on Equal Treatment in the Labor Market, 2018).

Recognizing that these documents were not sufficient to deal with ageism, proposals were introduced in 2019 by members of the Althingi to address these issues. This effort involved Olafur Thor Gunnarsson (2021), a geriatrican who was one of the 63 members of parliament. He, along with seven other members of the Althingi, introduced two proposals for parliamentary consideration: an action plan against aging prejudice (Gunnarsson et al., 2019) and a proposal for the abolition of age-related retirement rules (Brjansson et  al., 2019). The aim of the second proposal was to ‘remove age criteria that prevent the participation of older people in the labor market, whether in the private or public labor market.’ The proposal also noted that ‘the right of people to start receiving a pension does not change with the legislative changes proposed by the proposal… The adoption of the proposal will not be a basis for forcing people to work longer, but will increase their right to decide for themselves when they will retire’. Mandatory retirement was discussed in parliament and both proposals were sent to a committee for review, but neither proposal made it out of that committee for further consideration (Gunnarsson, 2021). There also are two court cases concerning mandatory retirement in different stages of development in Iceland (Agustsson, 2021; Asgeirsson, 2021). The first case, taken up by the law firm Magna and initiated about 4 years ago by the National Association of Senior Citizens, is about an elementary school teacher who was working for a municipality´s school.22 The case (in a 2019 decision) was not successful and so it is about to be heard by an appeals court.23 The second case has the backing of the Icelandic Medical Association and is being handled by the law firm Logmenn Laugavegi 3 (Ruriksdottir, 2021).24 It involves a physician who has completed two 1-year contracts (extension agreements offered after he reached the mandatory retirement age) to work full time but to do so with lower pay and less benefits.

 According to Agustsson (2021) and Asgeirsson (2021), this case refers to three articles in the Constitution (65, 72, and 75) as well as Articles 1 and 12 in the Act on Equal Treatment in the Labour Market. Basic to all of this is the legal Principle of Proportionality which focuses on justice and fairness in statutory interpretation processes. 23  It is interesting to note that the case only requests damages (money) and is not about being reinstated. A number of individuals have noted that a case like this may not be successful because court decisions in Iceland can be influenced by and supportive of current state approaches/policies. 24  This case also is about pay. Ruriksdottir (2021) has been informed that the case will be heard in February 2022. She expects the case will be successful and result in back pay from the government. If the case is not successful, it will be appealed. 22

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11.5  The Stories People are moved in different ways to make changes in laws, attitudes and behavior. Andri Snӕr Magnason (2020) is the author of On Time and Water, an important book about the climate crisis focusing on what is happening in Iceland. He includes scientific accounts and numbers because they are very important, but he emphasizes people’s stories. Elizabeth Fideler (2021), in Aging, Work and Retirement, also provides numerous stories of older adults, most in the United States, who have continued working. Fideler (2021, pp. 4–5) notes, for instance, that Nancy Pelosi, age 79, became Speaker of the U.S. House of Representatives in 2019 and U.S. Representative Maxine Waters, age 81, chairs the U.S. House Financial Services Committee. She also mentions Placido Domingo who, at 80, “still has leading roles in the opera as singer and director” (Fideler, 2021, p.  4). Sigurðardóttir and Snorradóttir (2020) focus on stories in describing the experiences of a small number of older women (55–75 years of age) in the Icelandic labor market.25 The authors were interested in how the older women “value(d) their job opportunities and perceived attitudes towards them.” Based on their interviews, five main themes were identified by the authors: “feeling rejected, feeling degraded self-worthiness, experiencing a lack of understanding from employers and coworkers, facing discrimination and experiencing respect and equality (from some coworkers).” The women they interviewed indicated they felt insecure in their jobs as they got older, were seen as less competent and experienced more age discrimination than men. As Siguroardottir and Snorradottir (Sigurðardóttir & Snorradóttir, 2020, p. 26) have noted, research has shown that “women were more subjected to ageism than men, indicating that gender and old age combined are important to consider…”. When meeting in Iceland with human rights representatives,26 the head and former head of the National Association of Senior Citizens (LEB),27 labor and human rights attorneys, civil society representatives, labor union representatives28 and researchers who had written articles about older adults in Iceland, I asked them if they knew any people who had faced mandatory retirement and might be willing to talk about it. I thought I really needed to

 This is an example of what has been called ¨gendered ageism,“ a situation of ¨double jeopardy, where two interacting power systems (patriarchal norms and an emphasis on youth) lead to an increased vulnerability° for women when compared to men (Krekula et al., 2018, p. 34). 26  I particularly want to thank Margaret Steinarsdottir (2021a, b), Director of the Icelandic Human Rights Centre, for her valuable assistance. 27  I am grateful for the considerable assistance that was provided by Thorunn Sveinbjornsdottir (2021), the former chair of the Association of Senior Citizens in Reykjavik, a former trade union leader as well as the former head of LEB, the National Association of Senior Citizens. I also want to thank Helgi Petersson (2021), the current head of LEB. 28  I am indebted to Thorbjorn Runarsson and the other representataives of the Icelandic Teachers Union for providing me with so much information. 25

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directly hear their voices. And now I want to thank the many people who spoke with me and agreed to share their important stories.29 Vidar, 77, was a university professor. He received a formal letter from the head of the university a few weeks before his 70th birthday indicating that he would be retired. While his birthday was before the end of the school year, he was expected to complete the school year before being retired. Vidar indicated he was “quite anxious” about having to retire. Because of this, he consulted a psychiatrist who, Vidar thinks, did not really understand his situation and the psychiatrist’s only advice was that Vidar should do more running. Vidar thought it was no use continuing to talk to this psychiatrist about mandatory retirement. Vidar had the possibility of applying to the head of his academic unit to continue an unpaid affiliation with the university, and he applied to do that. He had academic projects in place that would be completed over the next 2 years, and he was given a desk in a room with five other retirees to continue his work. After leaving the university, Vidar’s academic unit offered him the possibility of continuing to be an external examiner and supervisor of students’ dissertations. He said “no” because he felt he had not kept up with the current academic work in the areas. Vidar thinks the advantages of staying employed outweigh the disadvantages; he says he is “in agreement that people should be allowed to continue (working) if they want to do so” and is optimistic (even if it takes some time) that mandatory retirement will be eliminated in Iceland. He said he is happy now as he has taken up painting and horseback riding, and he also is looking after his grandchildren. He has, however, stopped running. Anna, 77 years old, was notified of her required retirement by the head of the university about 3 months before she reached 70. She was a full professor; she knew that mandatory retirement was coming and had mentally prepared herself for it. She has been given emeritus status (with no pay) and has a desk in a room – shared with five other retirees – who refer to themselves as ‘The Wise Ones’. She says ‘I loved my job but it was good the decision was taken from me. It would have been so difficult to stop working. So, in a way, I didn’t have to make that decision.’ Anna likes retirement; she is doing things she wants to do – reading novels, hiking for several days and academic writing. She says ‘when you have a job with endless deadlines, this is a kind of freedom.’ She says she knows people who didn’t want to stop working. She thinks mandatory retirement of university professors is “a waste of resources. In a way, it is a brain drain.” Hafdis, now 75 years old, held two different kinds of full-time jobs before she went back to the university when she was 40 to get her Ph.D. She then started working with children for a local health center. When she was 69, she was working with a team at the health center and a report needed to be developed to document the

 Interviews (using purposive/selective sampling) were conducted in September and October of 2021. The names of those interviewed have been changed and places of employment are not specifically identified. In one case, an individual was involved with a number of groups and the names of those groups have been changed.

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team’s work. She wrote to the head of the health system for permission to write the report. The administrator gave her approval but also said the report and any vacation time must be completed within 4 months because that is when Hafdis would reach the mandatory retirement age of 70. Hafdis said ‘I did not want at all to retire, (and) I was kind of envious of those academics who were able to continue their work with emeritus status.’ She said she was glad that she never received the form letter that the health center usually sent to those who had to retire. It did not thank you for your work; it just said you are being terminated. Hafdis said she never tried to object to the termination because she thought nothing could be done about it. She said that just before she left the job she had held for 16 years, she was given a party in the local health center and a visit from the head of the health care system who brought her a gift – a very nice book about nature in Iceland. Gretar is 74 years old. Before becoming an associate professor at a public university, he worked for the national government. He left that position because he said he ‘was not happy (he) had to change his mind every time there was a change in ministers.’ He left the university position when he was 69, one year before mandatory retirement, because he wanted a change. He knew he could spend time with friends/colleagues that he had met all over the world, take his grandchildren to visit another country, and continue to do some ‘extra work’ for the university. He enjoys reading dissertations and encouraging the junior scholars to write for the public/practitioners and not just have a dissertation in the library. He also enjoys meeting with a small group (mostly retired academics) at the university every Monday morning. His advice to those facing retirement, ‘Don’t stop (doing something), there is plenty to do.’ While Gretar thoroughly enjoys his retirement, he ‘thinks people should be free to choose’ if and when they retire. He says ‘there is now discussion in society’ (about mandatory retirement) and he thinks it will be eliminated in the next years. Gudrun, 64 years old, was a university professor; she did not wait until she was 70 to retire. She just retired and is working for 3 years at 49%, with half-time pay. She will be fully retired when she is 67. Gudrun says that during the time she has been working at 49% she has had less teaching obligations but she has ‘worked, worked, worked as always.’ She says she hasn’t done it yet, but is hopeful that she will begin to take days off. Gudrun’s mother is 89; she had worked in a canteen and was very pleased to retire in her 60s. Gudrun’s mother worried that her finances were not good at that time and starting knitting sweaters to sell to tourists. Her pension is better now but Gudrun’s mother said that ‘knitting saved her life.’ Gudrun thinks mandatory retirement is a ‘good thing’, because ‘she has seen people who don’t know when to stop (and that is) not good for the institution.’ Gudrun says ‘she does not want to be the person that people talk about and ask when she will retire.’ Gudmundur, 70, retired 1 year early – at 69 – as an associate professor at a public university. He said retirement is ‘wonderful’ and ‘retiring was the best thing I ever did in my life.’ Gudmundur says he is continuously busy; he is fishing, hiking, reading and spending time with his grandchildren. He says he is ‘waiting to

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wake up one morning with nothing to do.’ Gudmundur says mandatory retirement reminds us “you are not as badly needed as you think.” He says ‘I decided when I was a young man, in the beginning of my career, that I would not be one of these outdated teachers and administrators.’ He thinks older people can ‘lose their judgement and they are the last ones to discover this. You think you are still okay, but you are not (and) everybody else realizes this.’ Gudmundur says ‘younger people are waiting for your position; (they have) new ideas (and are) more up-to-date.’ He says one of his students told him that ‘the schools are full of dinosaurs.’ Baldur, 73 years old, has his own small company with two employees. The product he sells, a food additive, is only sold now in Iceland, but he hopes to begin exporting it. He is an engineer, by training, but has held many kinds of jobs. He retired at 69 from a teaching position at a technical school because he thought ‘it was the right time in many ways.’ Changes were being made in the school where he was teaching and he already owned the company and wanted to spend more time with it. He says he goes to work every day ‘because I have employees (and I) give tasks, supervise and give company.’ He doesn´t like mandatory retirement and thinks people should be able to choose when they want to do this. He says ‘maybe when I am 75 or 80 I would like to retire.’ Egill says ‘Science is my hobby and teaching it gives me satisfaction along with my voluntary work as the manager of the National Science Competition’ (since 1984), being a trainer for the Icelandic Science Olympiad Team and often a leader of the Icelandic team to the International Science Olympiad. Egill received a letter of dismissal 6 months before he was to be terminated from his position as the only teacher in his field of science in a secondary school just outside of Reykjavik. This dismissal was to take place during the school year because Egill would turn 70 in November. Egill absolutely did not want to retire and he says he ‘pleaded’ with Iceland’s Minister of Education, someone he knew through his work with the Icelandic Science Competition, to see if she would allow the administrator of his high school to let him keep his job despite the fact that he would be 70. She said she could not do this because of national law. Egill then consulted the Icelandic Human Rights Centre to see if there was something that could be done. He was told about the 2018 (amended in 2020) Act on Equal Treatment in the Labor Market and, armed with this new information, Egill contacted a lawyer with the Icelandic Teachers Union30 to investigate the possibility of annulling the letter of termination. In the meantime, Egill is still teaching at the secondary school because the school administrators were told there were no other candidates for the science position. When the position was eventually announced as open, Egill was found to be the only qualified candidate (except for age) of the four applicants. Because of this, Egill has been given a contract for  The Icelandic Teachers Union (n.d.), founded in 2000, is a “joint organization (of eight associations representing) all teachers, headteachers (except those in secondary schools), deputy headteachers and student counsellors in preschools, primary schools, secondary schools and music schools …” and includes the Association of Retired Teachers. The Union has over 10,000 members.

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hourly work that allows him to continue teaching for the year. Egill says ‘I feel I have done nothing to deserve to lose my job.’

11.6  What Can Be Done? There is so much that can be done by countries and organizations on all levels – globally, nationally, in communities and organizations as well as with individuals – to deal with ageism and particularly with mandatory retirement policies. Some literature and webpages (e.g., UNECE, 2019; Willis, 2020; Fredvang & Biggs, 2012; Efling, 2017; Naegele et al., 2018; WHO, 2020, n.d.) as well as interviews with those who have gone through mandatory retirement processes have been very helpful in developing the following list of 11 suggestions: 1. Countries, companies and other organizations need to understand that mandatory retirement is a human-rights issue. Older adults should be able to choose when they want to retire; mandatory retirement should be abolished. It is recognized that this policy reform may require a change in other rules/legislation, but this can be done. 2. If there still is a categorical approach/mandatory retirement for certain professions (e.g., airline pilot, air traffic controller, fire fighter, police officer) because of safety or other concerns, consider that periodic individual assessments can be required rather than setting arbitrary ages for mandatory retirement.31 As Willis (2020, p.104) notes, “…studies have shown that individual assessments are a more effective predictor than age as a way to measure the ability of a person to perform a job.” Iceland, for instance, is the first country in the world to put a policy and process in place to deal with unequal pay (the gender wage gap) between men and women; it also could be a prime mover in developing a policy and process for individual assessments. 3. Words are important; there can be improvement in some of the international writing about older adults. Some of those writing about retirement, for instance, should consider not referring to certain retirement ages as the “normal” ages if those ages are, in fact, imposed retirement ages. Others might consider not always using the word “elderly” to describe all older adults. And still others need to remember to include a society’s structural influences (such as mandatory retirement) when writing, for instance, about the positive contributions of older adults in a society and/or negative behavior and attitudes toward older adults.

 Jamie Ullman, a professor of neurosurgury in the United States, does not think a mandatory retirement age is needed for surgeons and doesn´t support mandatory cognitive testing. She does think that ¨professional evaluations – which include case reviews, as well as analysis of surgical mortality and readmission rates – could serve as the basis for determining whether physical examination, visual testing or cognitive skill assessments are needed (Southall et al., 2018).

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4. Pensions32 do not have to be linked to mandatory retirement… they can just be linked to retirement. Pensions do have to be adequate and they need to take into account the differences in circumstances (e.g., health status, socio-economic status, physical demands of work and ability to manage retirement savings and life transitions) of those who will be retiring. As Henkens and van Solinge (2021, p.13) have noted, if this is not done, there can be “an increase in existing inequalities as people age.” They also indicate that “sustainable and adequate financial safety nets will be one of the major challenges for societies as well as individuals.33 5. Employers need to establish an ¨age friendly-identity “for their organizations that includes having a ¨human resources management strategy that aims to fight ageism.”34 Tools should be “bundled” (for coherence and consistency) and should involve inclusion of older workers in (multi-age) training courses; age-­ blind promotion and hiring processes (e.g., deleting age information from applications; developing a check list for hiring practices), special human resource courses; and consultation for older workers (e.g., regarding life work-­ time accounts¨) (Naegele et al., 2018, pp. 79–80). 6. Ageism can be directed at one´s self and this has been referred to as the “enemy within¨ (Ayalon & Tesch-Römerm, 2018, p. 3). This can be, for instance, when an older adult does not want to be a bother to others or worries a great deal about what others think of that person. System change will be very helpful in dealing with this, of course, but this also needs to be dealt with in individual and group discussion and counseling through human resource departments as well as non-governmental organizations. 7. The UN’s Open-Ended Working Group on Ageing, according to its mandate, was to deliver a draft of a Convention on the Rights of Older Persons as soon as possible. It has now been 11 years and there is no draft. A draft should be developed as soon as possible, and it should be based on stated human-rights principles. The document should mention the need for the general elimination of mandatory retirement of older adults. 8. Speak up… for yourself and for others. In many cases older adults don’t request to keep their positions, seek legal or human rights counsel, discuss this problem with their unions, educate policymakers or take legal action. The European

 Most of the OECD countries (25 out of 34) have raised or plan to raise the age at which one is eligible for ¨“old age“ pensions (Solem et al., 2020). 33  According to the World Health Organization (2021b), ¨by 2050, the world´s population aged 60 years and over will double (and) the number of persons 80 years or older is expected to triple. While the increase began in high-income countries, by 2050, ¨two-thirds of the world‘s population over 60 years will live in low-and middle-income countries.“ 34  Mulders et al. (2021, p. 1) write that the results of their research in the Netherlands ¨show that when employees do not experience age discrimination, when their employer offers easily accessible accommodative HR facilities, and the social norms support prolonged employment, employees have fewer negative emotional reactions and are more likely to behaviorally respond to facilitate longer working lives. When these contexts are misaligned, the reverse is generally found.“ 32

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Parliament in 2013 (OECD, 2017),35 World Health Organization (2015, p. 200), Organization for Economic Development and Cooperation (OECD, 2017),36 International Sociological Association (2021) and National Association for Senior Citizens in Iceland (Landssamband eldri borgara, 2021a, b; Árdal, 2020) have, in the last years, all stated their opposition to the mandatory retirement of older adults. Organizations at all levels need to make statements. We also need to remember the lesson of the Red Stockings in Iceland (Arnadottir, 2011). The women’s 1-day strike in the mid-1970s involved 90% of the women in the country and was a strong influence in initiating change for women (Agustsdottir, 2021). Change can come about because of public influence. Consider ­speaking up individually and through your organizations in opposition to mandatory retirement. 9. Retirement transitions can include, for instance, phased retirement, re-entry to work for the same employer, part-time work in a new setting or self-­employment. Support needs to be provided to those considering and beginning to retire (UNECE, 2019). For example, some of those who were interviewed said that if a workplace offers a designated place for retirees to meet or asks retirees for their continuing assistance, this can be helpful. 10. Governments, businesses and non-governmental organizations should consider partnerships to move forward in dramatically reducing age discrimination. They can, for instance, establish or support an ombudsperson or an equity office that deals with age discrimination; insist on enforcement of equality acts; provide support to those who have been victims of age discrimination and publicize the rights of older citizens as well as the contact information for the ombuds or equity office. In developing or assessing partnerships, do remember to seek the views/advice of those who are approaching retirement as well as those who already have retired. 11. And, if you are an old-fashioned employer and still have a mandatory retirement policy, either include that ‘thank you’ in the (dreaded) letter of termination or at least include an individually-adapted separate letter of thanks with the termination letter.

 The European Parliament, in 2013, recommended that member states of the European Union should “put a ban on mandatory retirement when reaching the statutory retirement age, so to enable people who can and wish to do so to choose to continue to work beyond the statutory retirement age or to gradually phase in their retirement“ (OECD, 2017, p. 66). 36  The OECD (2017, p.  66) noted in an earlier publication the same year that ‚suitability for employment should be based on choice, competence and health rather than age’. 35

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11.7  Conclusion It has been over 50 years since the term ageism was first defined by Robert N. Butler, a physician who was the first director of the U.S. Institute on Aging. The term has made a ¨conceptual journey¨ since then from focusing only on attitudes to seeing it “as a form of oppression deeply imbedded in social structures¨ (Krekula et  al., 2018, p. 33). Swift and her colleagues (Swift et al., 2018, p. 441) stress that ageism “remains a relatively accepted form of prejudice, deemed to be an inevitable part of the aging process.” In fact, a recent survey of 83,034 participants in 57 countries found that “at least one in every two people… had moderate or high ageist attitudes” (Officer et al., 2020). It is clear that we need to avoid speaking of older people in general without regard to individual differences, recognize there are multiple tracks in the aging process (Ayalon & Tesch-Römerm, 2018, p. 1) and address the problematic structural issues. One of those structural issues is mandatory retirement. As attorney Clara Willis (2020, p. 69) and many others have noted, ‘to remove a person from their chosen occupation, or rid them of their access to gainful employment in general, solely based on age is discriminatory’. The focus of this chapter has been on advancing social justice by eliminating mandatory retirement in Iceland. Iceland, a country that is outstanding in so many respects – pensions, gender equality and even happiness – could be a leader in showing the way to eliminate mandatory retirement just at it has been in addressing the gender pay gap between women and men. The discussion here is not just for Iceland, however. It is hoped that the many countries with national or organizational mandatory retirement policies also will see the need – and then take action – to eliminate policies regarding the mandatory retirement of older adults because these policies are excellent examples of… ageism.

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Helliwell, J.F., et al. (2021). World happiness report. Sustainable Development Solutions Network. Retrieved from https://happiness-­report.s3.amazonaws.com/2021/WHR+21.pdf Henkens, K. & van Solinge, H. (2021). The changing world of work and retirement. In K. Ferrao & D. Carr (Eds.), Handbook of aging and the social sciences (9th ed.) (pp. 269-285). : Academic Press. Retrieved from doi:https://doi.org/10.1016/B978-­0-­12-­815970-­5.00017-­6. Icelandic Teachers Union. (n.d.). Retrieved October 26, 2021 from https://www.ki.is/um-­ki/annad/ icelandic-­teachers-­union/ International Sociological Association. (2021, April). Statement opposing mandatory retirement of older adults. Retrieved from https://www.isa-­sociology.org/en/about-­isa/policy-­statements Kim, H. (2019). Retirement and cognitive ability in Korea. The Korean Economic Review. 35(2) (Summer), 393-415. http://keapaper.kea.ne.kr/RePEc/kea/keappr/KER-­20190701-­35-­2-­05.pdf Klassen, T. R., & Yang, Y. (2013). Korea’s retirement predicament: The aging tiger. Routledge. Krekula, C., Nikander, P., & Wilinska, M. (2018). Multiple marginalizations based on age: Gendered ageism and beyond. In L. Ayalon & C. Tesch-Römer (Eds.), Contemporary perspectives on ageism, 19 (pp. 33–50). Springer. Landssamband eldri borgara (LEB, Iceland’s National Association of Senior Citizens). (2021a). National meeting 2021 – minutes. May 26. https://www.leb.is/landsfundur-­2021-­fundargerd/ Landssamband eldri borgara (LEB, Iceland’s National Association of Senior Citizens). (2021b). An open letter to the chairmen of political parties during the formation of the government. Approved at the national meeting on May 26. October 16, https://www.leb.is/ opid-­bref-­til-­formanna-­stjornmalaflokka-­vid-­rikissjornarmyndun/ Magnason, A.  S. (2020). On time and water. Profile Books. Translation of the book originally published by Forlagid in Icelandic in 2019. Mercer CFA Institute. (2021). Mercer CFA Institute Global Pension Index. Retrieved from https:// www.mercer.com/content/dam/mercer/attachments/private/gl-­2021-­global-­pension-­index-­ mercer.pdf Mulders, J. O. (2019). Attitudes about working beyond normal retirement age: The role of mandatory retirement. Journal of Aging & Social Policy, 31(2), 106–122. Mulders, J.  O., Henkens, K., & van Dalen, H.  P. (2021). Employees´emotional, cognitive, and Behavioral responses to increasing statutory retirement ages. BioMed Research International.. Retrieved from doi:10.1155/2021/6645271. Naegele, L., De Tavernier, W., & Hess, M. (2018). Work environment and the origin of ageism. In L. Ayalon & C. Tesch-Römer (Eds.), Contemporary perspectives on ageism. 19 (pp. 73–90). OECD (Organization for Economic Development and Cooperation). (2017). Iceland. Pensions-­ at-­a-Glance. Retrieved from https://www.oecd.org/els/public-­pensions/PAG2017-­country-­ profile-­Iceland.pdf Officer, A., et al. (2020). Ageism, healthy life expectancy and population ageing: How are they related? International Journal of Environmental Research and Public Health, 17, 1–11. file:///C:/Users/jan/Downloads/ijerph-17-03159-v2.pdf. Petersson, H. (2021, September 29). Interview with the head of LEB, Iceland´s National Association of Senior Citizens. Ruriksdottir, Hulda Ros (2021, November 15) Interview with the attorney who works with the Icelandic Medical Association (Læknafélag Íslands). Sakurai, M., et al. (2019). Health status of workers approximately 60 years of age and the risk of early death after compulsory retirement: A cohort study. Journal of Occupational Health, 62(1) Retrieved from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6970400/ Sigurðardóttir, S. H., & Snorradóttir, Á. (2020). Older women’s experience in the Icelandic workforce – Positive or negative? Nordic Journal of Working Life Studies, 10(4), 25–41. https://doi. org/10.18291/njwls.122142 Slauvermann, P., & Hu, J. (2018). What can China expect from an increase of the mandatory retirement age? Annals of Economic and Finance, 19(1), 229–246. Solem, P. E. (2016). Ageism and age discrimination in working life. Nordic Psychology, 68(3), 160–175.

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Solem, P. E., Salomon, R. H., & Terjesen, H. C. A. (2020). Does a raised mandatory retirement age Influence managers’ attitudes to older workers? Nordisk valfardsforskning/Nordic welfare research, 5(2), 122–136. https://creativecommons.org/licenses/by-­nc/4.0/ Southall, J., Rapp, S.M. & Tingle, C. (2018, March 20). Surgeons: Absolute cutoff age for retirement, Mandatory skills testing is unnecessary. Healio. Retrieved October 8, from https://www.healio.com/news/orthopedics/20180320/ surgeons-­absolute-­cutoff-­age-­for-­retirement-­mandatory-­skills-­testing-­is-­unnecessary Stefansdottir, O. A., & Sveinbjarnardottir, E. K. (2019). Continued togetherness: Couples preparing for old age. In P. Naskali, J. R. Harbison, & S. Begum (Eds.), New challenges to ageing in the rural North (pp. 159–171). https://doi.org/10.1007/978-­3-­030-­20603-­1_10 Steinarsdottir, M. (2021a, September 15). Interview with the head of the Iceland Human Rights Centre. Steinarsdottir, M. (2021b, October 4). Personal correspondence. Sveinbjornsdottir, T. (2021, October 12). Interview with the former head of Iceland’s National Association of Senior Citizens. Swift, H. J., Abrams, D., Marques, S., Vauclair, D., Bratt, C., & Lima, M. (2018). Ageism in the European region: Findings from the European Social Survey. In L. Ayalon & C. Tesch-Romer (Eds.), Contemporary perspectives on ageism. 19 (pp. 441–459). Turnbull, E. (2020, February 28). Social justice and human rights. The British Institute of Human Rights. Retrieved from https://www.bihr.org.uk/blog/social-­justice-­and-­human-­rights United Nations Department of Economic and Social Affairs. (2017). Social inclusion. Retrieved from https://www.un.org/development/desa/dspd/international-­days/world-­day-­of-­social-­ justice/world-­day-­of-­social-­justice-­2017.html United Nations Economic Commission for Europe (UNECE). (2019, February). Combating ageism in the world of work. UNECE policy brief on ageing No 21. Retrieved from https://unece. org/fileadmin/DAM/pau/age/Policy_briefs/ECE_WG1_30.pdf United Nations General Assembly. (2010). Resolution 65/182. Follow-up to the Second World Assembly on Ageing. Retrieved from https://undocs.org/en/A/RES/65/182 United Nations General Assembly. (2013). Towards a comprehensive and integral international legal instrument to promote and protect the rights and dignity of older persons. Resolution 67/139. Adopted on 20 December 2012. Retrieved from file:///C:/Users/Jan/Downloads/A_ RES_67_139-­EN.pdf United Nations Open-ended Working Group on Aging. (2021, June 3). Report of the Open-ended Working Group on Aging on its eleventh session. Retrieved from https://undocs.org/en/A/ AC.278/2021/2 Wagner, I. (2021, January 8). How Iceland is closing the gender wage gap. Harvard business review. https://hbr.org/2021/01/how-­iceland-­is-­closing-­the-­gender-­wage-­gap Wang, V. & Dong, J. (2021, April 27). A graying China may have to put off retirement. Workers aren’t happy. The New  York times. Retrieved from https://www.nytimes.com/2021/04/27/ world/asia/china-­retirement-­aging.html Williams, R. (2012). Forced retirement goes out of style. Science. 336(6083), 801–801. Retrieved from doi:10.1126/science.336.6083.801-a Willis, C. C. (2020). Age is just a number: Not a reason to force retirement. Journal of Comparative and International Aging Law & Policy, 11, 67–104. Retrieved from https://www.stetson.edu/ law/agingjournal/media/JCIALP%20Vol%2011%20(Final).pdf Wood, A., Robertson, M. & Wintersgill, D. (2010). A comparative review of international approaches to mandatory retirement. Research report 674 carried out by RS Consulting Ltd. for the Department of Work and Pensions. Department of Work and Pensions. https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/214445/ rrep674.pdf World Economic Forum. (2021, March). Global gender gap report 2021. Retrieved from https:// www3.weforum.org/docs/WEF_GGGR_2021.pdf

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World Health Organization. (2021a). Global report on ageism. : World Health Organization. Retrieved from file:///C:/Users/jan/Downloads/9789240016866-eng%20(1).pdf World Health Organization. (2021b). Ageing and health. Retrieved from https://www.who.int/ news-­room/fact-­sheets/detail/ageing-­and-­health World Health Organization (WHO). (2015). World report on ageing and health. World Health Organization. Retrieved from http://apps.who.int/iris/bitstream/handle/10665/18646 3/9789240694811ng.pdf World Health Organization (WHO). (2020). Campaigning to tackle ageism: Current practices and suggestions for moving forward. World Health Organization. Report. Retrieved from https:// www.who.int/publications/m/item/campaigning-­to-­tackle-­ageism World Health Organization (WHO). (n.d.) Combatting ageism. Retrieved from https://www. who.int/teams/social-­d eterminants-­o f-­h ealth/demographic-­c hange-­a nd-­h ealthy-­a geing/ combatting-­ageism Jan Marie Fritz Ph.D., C.C.S., is a Professor at the University of Cincinnati (USA); a Distinguished Visiting Professor at the University of Johannesburg (South Africa) and a Visiting Professor at Taylor’s University (Malaysia). She also is a Fulbright-National Science Foundation Arctic Scholar in Iceland. She is a member of the Executive Committee of the International Sociological Association (ISA), an ISA representative to the United Nations and past president of the ISA’s division on Clinical Sociology. She is a member of the Mayor’s Gender Equality Task Force in Cincinnati, Ohio, and editor of Springer’s Clinical Sociology book series. She has been a docent at the Harriet Beecher Stowe House in Cincinnati, Ohio.  

Chapter 12

The Pressure of Incommensurability: When Water Is Life Becomes Water for Life at the United Nations Ruby Lindiwe Turok-Squire

Abstract  What happens when two almost diametrically-opposed worldviews meet in the search for global water justice? One worldview, voiced widely within United Nations literature, can be summarised as water for life, and the idea that water is a human right. Another, voiced by representatives of some Indigenous communities, can be summarised as water is life, and the idea that water requires its own rights, equivalent to human rights. This chapter argues that these two worldviews collide repeatedly in the UN’s forums of ‘global justice’. They collide as they imply two incompatible imaginations of the relationship between water and humans, and consequently, of a system of justice that would be adequate for humans and water. This incommensurability exerts a pressure upon the UN, in that a marginalised worldview, water is life, has the potential to undermine the dominant worldview, water for life, and its implications for justice, implications to which the UN doggedly adheres. In response to this pressure of incommensurability, the UN would appear to have two choices: avoid it, or try to witness it. While the latter approach would arguably be more just, the former approach seems to be taken. A marginalised worldview is modulated to fit with a dominant worldview, a colonial “inclusion” allowing the dominant worldview’s implications for justice to be perpetuated as if all are in agreement. Other perspectives and demands are silenced through a performance of listening to those perspectives that remains superficial. This chapter concludes by proposing that if the UN is to become the truly global and just forum of global justice that it seems to aspire to be, it could seek to witness incommensurability, acknowledge the unknowable full implications of marginalised worldviews, and facilitate dialogue across real lines of difference, rather than sustaining artificial harmonies between worldviews by trying to tune all voices to one key. Keywords  Global justice · Human rights · Indigenous communities · Incommensurabilty · Social justice · Water for life · Water is life · Water justice · UN R. L. Turok-Squire (*) International Development Law and Human Rights, University of Warwick, Coventry, UK e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_12

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12.1  When Water Is Life Becomes Water for Life at the United Nations: Introduction This chapter asks what happens when two almost diametrically-opposed worldviews meet in the search for global water justice and why. The first worldview, voiced widely within United Nations literature, is here summarised as water for life, and the idea that water is a human right. The second worldview, voiced by representatives of some Indigenous communities, is here summarised as water is life, and the idea that water requires its own rights, equivalent to human rights. These worldviews collide repeatedly in the UN’s forums of “global justice” (Eappen et al., 2020; Permanent Mission of Ghana to the United Nations, 2018; United Nations, 2015, 2018). They collide, I argue, because they are incommensurable, that is, they have no common measure. Water for life and water is life imply two incompatible imaginations of the relationship between water and humans, and consequently, of a system of justice that would be adequate for humans and water. This incommensurability, I propose, exerts a pressure upon the UN, in that a marginalised worldview, water is life, and its implications for justice, has the potential to undermine the dominant worldview, water for life, and its implications for justice, implications to which the UN doggedly adheres. In response to this pressure of incommensurability, the UN would appear to have two choices: avoid it, or try to witness it. While the latter approach would arguably be more just, the former approach seems to be taken. Within UN reports, educational articles and speeches concerning water justice, water is life is frequently conflated with water for life, and the implications of water is life for justice hidden in plain sight. A marginalised worldview is modulated to fit with a dominant worldview, a colonial “inclusion” allowing the dominant worldview’s implications for justice to be perpetuated as if all are in agreement. Extending Robinson and Tormey’s (2009) work on resisting “global justice”, one set of perspectives and demands is presented as universal when it is not, and is used to generate a system of “global justice”. Other perspectives and demands are silenced through a performance of listening to those perspectives that remains superficial. I will conclude that this response to incommensurability is irresponsible and unjust. If the UN is to become the truly global and just forum of global justice that it seems to aspire to be, recalling its founding commitments to achieving ‘international co-operation in solving international problems’ and ‘harmonising the actions of nations’, it could seek to witness incommensurability, acknowledge the unknowable full implications of marginalised worldviews, and facilitate dialogue across real lines of difference, rather than sustaining artificial harmonies between worldviews by trying to tune all voices to one key (UN, 1945).

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12.2  Why Water Justice at the United Nations? Water justice – whether that means justice for humans concerning water, or justice for humans and water – seems a topic of necessarily global dimensions, there always being another country downstream (Corca & Weinthal, 2018; Norman et al., 2013). How water justice is conceptualised and enacted has far-reaching implications for water governance, distribution, management, and protection, endeavours with the potential to be divisive – with some studies anticipating unprecedented future conflicts over water – or collaborative and peace-building, on a global scale (Biswas & Tortajada, 2019a; Farinosi et al., 2018; Kamali Dehghan, 2020; Petersen-Perlman et al., 2017; United Nations Meetings Coverage and Press Releases, 2016. With the health, so to speak, of both water and the human communities living alongside it at risk worldwide, with pollution increasing, billions of people without safe drinking water, and water-related “natural disasters” challenging individualistic notions and locations of responsibility, the search for truly just conceptions of water justice continues (Biswas & Tortajada, 2019b; Boelee et al., 2019; Harris et al., 2017; Lee et al., 2020; United Nations Environment Programme, 2016). In its own introductory information concerned with promoting the ‘right to water’, the UN has recently provided the following statistics, all of which give some sense of the enormous significance for many people of a lack of clean water. It is estimated that 2.2 billion people worldwide lack access to safely-managed drinking water, and 4.2  billion people  – over half of the global population  – lack safely-­ managed sanitation services (UN, 2019). 2 billion people live in countries experiencing high water stress (UN, 2019). 297,000 children under five die every year from diarrhoeal diseases due to poor sanitation, poor hygiene, or unsafe drinking water. Drawing attention to the need to consider water on a global scale, the UN reminds its audience that 90% of natural disasters are weather-related, disasters including floods and droughts (UNISDR). 80% of wastewater is not treated or reused before it flows back into ecosystems (UNESCO, 2017). Approximately two-­ thirds of transboundary rivers have no cooperative management framework (SIWI) (UN, 2019). Faced with such statistics, without collaboration – which might presuppose ideological agreement on how we conceive of water in relation to us  – the chance of providing and safeguarding water for all might seem an impossibility. The UN has been recognising and addressing the global crisis surrounding insufficient water supply through its Sustainable Development Goal 6, to ‘Ensure availability and sustainable management of water and sanitation for all’, and through a series of international conferences and awareness-raising and organisational initiatives stretching back decades. The United Nations Water Conference (1977), the International Drinking Water Supply and Sanitation Decade (1981–1990), the International Conference on Water and the Environment (1992) and the Earth Summit (1992) all placed water centre stage. From 2005–2015, the ‘Water for Life’ International Decade for Action, the slogan of which will be analysed within this chapter, ‘helped around 1.3 billion people in developing countries gain access to safe drinking water and drove progress on sanitation’, the UN reports (UN, 2019).

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Momentum continues, with agreements such as the 2030 Agenda for Sustainable Development, the 2015–2030 Sendai Framework for Disaster Risk Reduction, the 2015 Addis Ababa Action Agenda on Financing for Development, and the 2015 Paris Agreement within the UN Convention Framework on Climate Change keeping water on the global agenda (UN, 2019). Under the watchful eye of global neoliberalism, it has been argued that water governance has become increasingly international, as knowledge and authority regarding water collects in the hands of certain public agencies, and multinational corporations and global policy institutes weigh in (Boelens et  al., 2018, p.3). Furthermore, in a world in which one can trade in water on the US Stock Exchange, not only water’s presences but its scarcity, its absences – and the justices or injustices that may surround them – are a matter of global monetary interest (Chipman, 2021; Hiltzik, 2021). In such a world, causes of water injustices, along with many other injustices, belong to a ‘space of flows’, not a ‘space of places’, as Fraser has put it, not being contained within the jurisdiction of real or imaginable territorial nation-states (2005, p.81). Following Fraser, maintaining affiliation to nation-states as ‘frames’ within which water justice is debated would perpetuate an injustice of ‘misframing’, in that those flowing, extra-territorial causes of water injustice would remain beyond justice’s reach 2005, p.81). Similarly, following Robinson and Tormey (2009, p.1407), responsibility is re-defined when ‘global flows’ of knowledge and exchange, including those of an ecological quality, exceed societal boundaries. Other, non-territorial frames of justice become crucial. The UN is here pictured as one such frame. The UN is committed to a system of justice involving “universal” human rights, the waters of which have already been substantially troubled in ways that question their purported universality (Nayar, 2019, p.289; Rancière, 2004). These rights include the right to water and sanitation, introduced in 2010 (United Nations Department of Economic and Social Affairs, 2014). At the same time, what constitutes water justice and development is questioned within UN forums, through speeches and General Assembly debates, for example. Incommensurability, in the form of incompatible conceptions of water justice, can thus surface within the UN frame. On the global scale, such incommensurability arguably becomes more prominent, as increasingly distinct worldviews come into increasingly close contact. Incommensurability, I argue, exerts a pressure within the UN, by challenging the universality of the human rights system to which it adheres. How the UN responds to that pressure becomes a question of how justice can and could perform its work on a global scale.

12.3  Two Incommensurable Worldviews I necessarily and inadequately signify two worldviews that collide within UN forums using two phrases: water for life and water is life. From my very limited perspective, the logical implications of each worldview for the human-water

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relationship, and for justice concerning humans and water, will be explored, alongside their manifestations in the UN. The conclusion I will work towards is that these two worldviews and the systems of justice they imply are incommensurable, in that they share no common measure. I picture a system of justice as arising from, reflecting and protecting a particular conception of a relationship – in this case, between humans and water – and aiming to bring that relationship into balance. I also picture justice as involving a fair hearing for all within its frame, in line with Fraser’s description of justice in its most general sense as involving ‘parity of participation’, a point that will become relevant later (Fraser, 2005, p.73). In describing water is life as a single Indigenous worldview, I risk engaging in a ‘politics of empire’, as Casas (2014, p.34) would describe it, by not engaging in the everyday experiences of Indigenous people. Doing so would be beyond my capacity. Moreover, it seems necessary to consider how conceptions of water justice, a global issue, interact on a global scale. I also risk inaccurately summarising Indigenous worldviews; indeed, this is just what I intend to show that the UN does. While Indigenous worldviews on water are of course numerous, I only hope to show how one message, water is life – which I name a worldview so as not to diminish its ontological depth, most likely unfathomable to me – is voiced and relayed within UN forums (Anderson et al., 2013; Christian & Wong, 2017; Jackson, 2006). i) Water for Life If water is for life, life comes first and water second. Water becomes useful in its being for life. Water is not life. What might all of this mean for justice? One might give living things certain rights and not water. One might even give living things the right to water. One might conceive of water and life as things that can be measured, so that certain amounts of water can be given to certain amounts of life. The individual human may emerge as a priority, as may the individual water droplet, a droplet that might take on monetary meaning, as water becomes a resource divided up and distributed according to life’s needs. UN policy and literature appears to align with water for life. Adopting ‘Water for Life’ as the motto for their 2005–2015 Decade for Water, the UN introduced a human right to water and sanitation in 2010, taking life, it seems, to mean human life (United Nations Department of Economic and Social Affairs, 2015). Sustainable Development Goal 6 (SDG6), ‘ensure availability and sustainable management of water and sanitation for all’, ‘for’ being the operative word, was introduced in 2015 United Nations Department of Economic and Social Affairs, 2015). In the UN’s High-Level Panel on Water Outcome Document (2018) entitled Making Every Drop Count, a panel of Presidents and Prime Ministers aiming to accelerate progress towards SDG6, water is announced as ‘a matter of life and death’; a ‘vital ingredient’ within ‘food, energy, health, industrial development, livable cities, and the biodiversity and ecosystems around us’; ‘critical for sustainable development’; and ‘indispensable for human development, health and wellbeing’ (United Nations High Level Panel on Water, 2018, pp. 11,32). Water is a matter, critical, vital, indispensable, yet measurable, separable from life, an ‘ingredient’ added to life. Water is for life. It is not life.

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Every drop counts. Endless figures on how much water is available to how many people, where and when, line UN reports (UN, 2015). Maestu, Director of the Water Decade programme, introducing the Water for Life final report, wondered ‘if it’s robotic to talk of successes in terms of numbers while so many still lack access to clean water and basic sanitation.’ ‘But’, she concluded, ‘we keep working.’ (UN, 2015, p. 7). In the same Water for Life report, Bena of PEPSICO noted that 10 years ago, the idea of corporations collaborating with the UN was ‘taboo’, but that such roundtables were proliferating UN, 2015, pp. 5–6). Bena suggested that incentives for ‘scaling up’ with regards to achieving universal water access, for many countries, including the USA, might be ‘significant financial savings from water conservation.’ (UN, 2015, p. 18). The aptly-named Winpenny, of Wychwood Economic Consulting, also chimed in. I hope in the future water will be regarded as a basic service which has to be properly priced and properly funded. And I think a lot of the emotion and the religion should be taken out of water and it be treated in a more pragmatic way, because we need to raise the money to keep water flowing (United Nations, 2015, p.20)

Robinson and Tormey have described how justice arising from a notion of equivalential value – in which all values are imagined as fundamentally equivalent, making materials exchangeable and commodifiable – can obliterate the textures of environments and obscure socially-situated possibilities for economic relations (Robinson & Tormey, 2009, p.1398). Winpenny’s statement seems to exemplify such a possibility. Water’s very ‘flowing’ is flattened, defined – fantastically – as actually caused by money. Human-beingness is reduced, or ‘(b)ordered’, following Nayar: lost to generalisation, ‘emotion’ and ‘religion’ are cast as discrete elements to be ‘taken out’ of the human-water relationship, as if from an equation (Nayar, 2019, p. 271). That obscuring of other possible relations, as Robinson and Tormey described it, can become a blindness to them (Robinson & Tormey, 2009, p.1398). Elsewhere in the Water for Life report, Heller, Special Rapporteur for the Human Rights to Water and Sanitation, argued that those rights promote ‘pro-poor and non-discriminatory provision’ and could transform individuals ‘from passive recipients to active agents of change’ (United Nations, 2015, p.21). Misiedjan’s and Gupta’s analysis of the application of the human right to water to Indigenous peoples has shown that while the right possesses some value for Indigenous peoples, for example, in creating standards with regards to water quality, it has various potential pitfalls, including confusion over when it is legally binding and its extent; its application to individual Indigenous people rather than to groups; and the way that its implementation has developed by diving up the different uses of water, divisions that are not always useful or relevant to Indigenous peoples (Misiedjan & Gupta, 2014, p.88). What if those rights that Heller presents as empowering are not wished for or required by so-called ‘passive recipients’? Within certain UN literature, at least, that question goes unasked. ii) Water is Life If water is life, water and life surely cannot be placed in a hierarchy. It also seems unnecessary to quantify either of them. Finally, how can water be owned by humans

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if both are equal, both alive? There is an oceanic sense within water is life, in which water becomes life as life becomes water. Peltier, a then 13-year-old Anishinaabe water protector from the Wikwemikong First Nation, Canada, in her speech at the launch of the United Nations’ International Water Action Decade (2018–2028), argued that water is alive, and summed up the interconnectedness of human-­ beingness and nature that appears possible within this worldview. We come from our mother’s water, and her mother’s water, and so on. All the original water flows through us and around us… Water is the lifeblood of Mother Earth… My heart is in our land and our water… Ask yourself where your heart is… My heart is not for sale, and neither is our water and our lands… Our water deserves to be treated as human, with human rights. We need to acknowledge our waters with personhood so we can protect our waters (CBC News, 2018, 00:15).

Building on Peltier, if water is life, one might assign certain rights to all life. The rights of humans, waters, and other forms of life, might be entwined. Not polluting water, for example, might be considered as important as not depriving humans of water. Water might be distributed to meet the needs of other life, and humans might be considered as needing to distribute themselves, and manage their actions, in accordance with the needs of water. Empathy seems implied by water is life, along with a sense of irreducibly shared responsibility, extending Young, amongst human and non-human life/lives. Water is life might not even lead to a conception of individual rights for individual humans, or for individual bodies of water – for how to draw those boundaries? Following Robinson and Tormey’s overview of Indigenous epistemologies, a ‘relational, immanent, situated, singularistic, acephalous and horizontal’ epistemology seems suggested (Robinson & Tormey, 2009, p.1396). Non-standardised, context-­specific forms of justice might accompany such an epistemology, accounting for water and other life/lives existing in different harmonies in different environments. Under such a system/systems of justice, if the individual was not so individual, the hearings involved might be different, perhaps not isolating perpetrators or victims. Horizonal sanctions, addressing a range of agents, might be employed (Robinson & Tormey, 2009, p. 1401). Water is life, while frequently voiced within UN forums – as will be explored later in more detail – challenges the dominant worldview within the UN, water for life, and its implications for justice. As such, water is life appears to be an ‘assertion of a being-otherwise’, following Nayar (2019, p.290). Moreover, the implications of water is life and water for life appear so different as to be incommensurable. Under either worldview, justice for water and humans takes on different meanings, as I have attempted to show, either emphasising individual or socially, environmentally connected human being-ness; either separating and measuring elements of human-­ beingness, and picturing water as quantifiable and commodifiable, or not; either suggesting rights for water, or not. These differences, I propose, are so extreme that one system of justice could not encompass both worldviews. Two possible conceptions of justice collide, and call to be heard, within the UN, which remains committed to just one of those conceptions in its system of human rights. When water for life meets water is life, then, the pressure of incommensurability emerges.

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12.4  Subtle Collisions and Unjust Modulations Water is life and water for life repeatedly rub shoulders within UN forums and literature. Their collisions do not appear harsh. At first glance, they are hardly noticeable – that, in fact, is where I will argue the injustice lies. The worldview summarised here as water is life is represented in certain reductive ways that ignore its implications for justice and make it look compatible with the dominant worldview, water for life. As such, water is life is modulated to fit the key of water for life – unjustly so, as its implications are misrepresented. A dominant worldview and its implications for justice are protected, while another worldview is silenced by being given a superficial, “inclusive” hearing. Sometimes, water is life is simply conflated with water for life, without elaboration. On the same day as Peltier spoke, Ghana’s representative to the UN spoke as follows. ‘Water is life. It is a critical natural resource’ (Permanent Mission of Ghana to the United Nations, 2018). As has been argued, saying these two things in one breath is nonsensical. How can water be both life and a quantifiable ‘natural resource’ distinct from life? The UN’s Water for Life report stated, ‘Water is life – and the areas in which water plays a role are almost overwhelming’ (United Nations, 2015, p. 63). How can water be both life and separate enough from life to play a role in different areas of life? In one recent supposedly educational UN article, the idea of water being essential for life and spirit is presented as a paraphrase of the idea of everything (including water) having a spirit. The Wayana Peoples of the Amazon, Indigenous to Brazil, Suriname and French Guiana for 4,000 years, understand that water is essential to both life and spirit… Jupta explains, ‘For humans to be able to live well, a balanced relationship with the spirits is necessary…everything has a spirit, a soul’. (Eappen et al., 2020)

Surely, either ‘everything has a spirit, a soul’ – a position that could align with water is life – or ‘water is essential for life and spirit’ – a position that could align with water for life. Yet the two ideas are presented as if they are the same. The UN also uses ‘water is life’ as a slogan, giving the following explanation in the Water for Life report. In targeting the developed world for awareness raising, easy to share global social campaigns, such as those produced by WATER is LIFE… have increased the visibility of water issues among the general public (United Nations, 2015, p. 63).

Following Quijano, a colonisation of one way of imagining, being and knowing occurs, in which a message representative of a marginalised Indigenous worldview, water is life, is hollowed of its meaning and exploited for having a certain “ring” to it. In the process, water is life is presented as merely poetic, or ornamental in the sense of not being crucial, its own underlying rationality ignored, in contrast to the thorough representation of the rationality of a dominant worldview, water for life, which is reiterated throughout the Water for life report, and which water is life is employed to promote. (Quíjano, 2007, pp.168, 169). Following Robinson and Tormey’s work on resisting “global justice”, one worldview is presented as ‘typical

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and pseudo-universal, and used to generate a general [global] conception of the human and of justice’, when it is not typical or universal (Robinson & Tormey, 2009, p. 1396). In the process, another worldview is engulfed, in the name of making the dominant worldview ‘easy to share’. Sharing is exactly what is not happening within the work of such ‘global justice’. The pressure of incommensurability between water is life and water for life is responded to by pretending it does not exist. Extending Robinson and Tormey’s (2009) notion of the silencing of other perspectives that can occur when non-­ universal views are imposed as bases for “global justice”, the silencing of water is life is enabled by giving it a sustained, superficial hearing (Robinson & Tormey, 2009, p.1396) Perhaps these moments of being heard seem like moments of ‘existential reprieve’, following Nayar, for representatives of water is life, but they do not turn the tide of the UN’s system of justice, which remains based on water for life, a worldview aligning with the interests of the UN’s corporate network, by allowing for the quantification and commodification of water (Nayar, 2019, p. 289). A fake inclusion, and a performance of listening, allows the UN to appear global and just, in appearing to allow all parties a fair hearing, thereby building international co-­ operation and harmony. Meanwhile, within UN policy and communications, plus ça change. It may be argued that the UN has no other choice. If the conceptions of justice implied by water for life and water is life are incommensurable, how could the UN, as one frame of justice, accommodate both? If the worldview water is life is beyond the full comprehension of representatives of water for life, the dominant worldview within the UN, how else could the UN represent water is life except in inadequate summary? While the United Nations may have to adhere to one system of justice, if it is not to come untied, it must surely foster debate between worldviews. This necessitates acknowledgement that its chosen system of justice is one of many possible systems, and is not universal, but dominant. Openly recognising incommensurability, and what is unknown about marginalised worldviews, far from undermining the UN’s authority, would enable dialogue across real lines of difference, dialogue crucial to maintaining the UN’s reputation as a forum in which harmony between and beyond nations – harmony in the fullest sense of the word, involving dissonance as much as resolution  – is sought, but not imposed (UN, 1945). The pressure of incommensurability that appears to occur when water is life meets water for life at the UN, and that arguably leads to such modulations as have been discussed, may also influence how representatives of the marginalised worldview itself share their message at the UN.  Right at the end of Peltier’s speech at the launch of the 2005–2015 Water Action Decade, throughout which she argued that water is alive, her message appeared to change. We all have a right to this water as we need it… Not just rich people, all people (CBC News, 2018, 03:30)

While Peltier had maintained that water could not have monetary value, she ended by arguing that humans should have a right to water, a position easily compatible

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with water for life. Under water is life, a human right to water might take on a more complex, context-specific meaning, needing to be balanced against water’s own rights. In ending on this point, perhaps Peltier sought to modulate her own message to fit the key of water for life, so as to gain more than a superficial hearing, and some substantial response, from her UN audience. Peltier’s 4-minute speech was scheduled directly after a speech by a representative of the UN’s Making Every Drop Count report (UN, 2018). Her audience would have been hearing about water flowing alongside money moments before she informed them that water has a spirit. That same day, as mentioned earlier, Ghana’s representative would have been informed the UN that water was both life and a critical natural resource (Permanent Mission of Ghana to the United Nations, 2018). The summary of this ‘High-level Launch Event’ described policies discussed to achieve SDG6, water governance challenges, and a multitude of figures associated with water distribution and access. It mentioned nothing of Peltier’s ‘remarks’, beyond that they were ‘delivered’ (UN, 2018). In Maestu’s words, then, ‘we keep working (UN, 2015, p. 7)

12.5  Conclusion: Seeing Incommensurability At the southernmost tip of Africa, a small needle-like rock dwindles to a point. If you walk out along that rock, you will see two oceans greeting one another: the Indian Ocean, slightly turquoise, and the Atlantic, a few degrees cooler, sapphire-­ like. Each home to many different species of animals. A long line forms in the water where they meet, bending with every new wave but never breaking. I have argued that two metaphorical oceans, two ways of imagining and relating to water, meet at the UN in the search for global water justice. A line of incommensurability is clearly, logically, visible between them, which the UN refuses to see. Instead, attempts are made to mix one ocean into the other. But one ocean remains lighter blue, and an entirely different habitat. The scene from nature that I have described suggests another response to the pressure of incommensurability. Seeing two oceans at once – as Robinson and Tormey might have it, recognising ‘several complete fields of vision of equal value’ – is within the UN’s capacity. While it may be impossible to thoroughly comprehend one field of vision, or worldview, while living within another, it is possible to say so openly. If global justice is to be global and just, it appears that frames of such justice must recognise the unknowable within marginalised perspectives, alongside their potentially incommensurable presence. Doing so might require ‘expanded openness’ and ‘a less judgmental stance’, as Robinson and Tormey have suggested, including, I add, openness to what cannot be understood from within the dominant perspective, let alone judged (Robinson & Tormey, 2009, p.  1407). Simply witnessing incommensurability, as inconclusive as that might be, would be a just, collaborative, truly harmonising, and responsible response to the existence of incommensurability within the UN. It is a response that the UN could still choose to make.

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Acknowledgements  All my thanks to Jayan Nayar, for the helpful conversations, and to my LLM friends, Ebun Bamigboye, Tara Chowdhuri, Grayson Christopher, April Downie, Amy Goodenough, Amber O’Hagan, Aneesah Ijaz, Charlie Johnstone, Gianpaolo Mascaro, Katie Morris, Lucy-Rose Nixon, Hawa Ocheni, Emily Phillips, Sasha Temereva and Maria Thomas, for their support and advice. Special thanks to Maria for proposing an alternative title for this piece, ‘Water we gonna do now?’

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research project at the University of Warwick. Recently, Ruby has worked as General Operations Assistant for Action for Child Trauma International and as a research assistant for the Central England Law Centre. She previously taught English as a second language to refugees in Canada and the UK, worked as an editorial assistant for Lacuna Magazine, studied English and Drama at the University of Warwick, taught Shakespeare at President Kennedy Secondary School, Coventry, UK, and studied English and Music Composition at Oberlin College and Conservatory, Ohio, USA. Ruby has been awarded a Watson Fellowship and a BMI Student Composer Award. Her first book of poems, The Phantom Fundamental, was published by Lapwing Press in the UK and Finishing Line Press in the USA.

Chapter 13

The Multidisciplinary, Interdisciplinary, and International Global Policy Outlook of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC) Tanya F. P. Herring

Abstract  The human rights of children are traversed across a multidisciplinary, interdisciplinary, and international policy network. Globally, children in poverty, living on the street, in urban and public remote areas, and those affected by conflict and post-conflict societies are, particularly at risk. Article 3(1) of the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography (OPSC) requires States to criminalize sexual exploitation of children, regardless of whether the breach occurred domestically or transnationally  — citing, and comparatively analyzing USA v T. Pendelton and XYZ v Commonwealth of Australia. In addition, article 8 of the OPSC requires States Parties to protect the rights and interests of child victims of the practices prohibited under the present Protocol at all stages of the criminal justice process and links to Article 9 where ‘particular attention to children who are especially vulnerable to such practices, arguing Secretary for Justice v Man Kwong Choi. However, contrary to international law, a wide spectrum of global social belief systems inhibit the effectiveness of policies and laws that uphold prohibited practices under the OPSC. This chapter investigates cross-cultural policies and evidence-based adoptable educational and administrative measures to address the global matters surrounding the sale of children. Keywords  Adverse childhood experiences (ACE) · Child exploitation · Child trafficking · Convention on the rights of the child (CRC) · Convention against transnational organized crime · Human trafficking · Optional protocol to the convention on the sale of children · Child prostitution · And child pornography (OPSC) · Palermo trafficking protocol · Refugee · Trafficking-in-persons

T. F. P. Herring (*) Bangor University, Wales, UK International Communities Organization (ICO) of London, London, UK © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_13

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13.1  Introduction States are at the nucleus of the international legal system. The enormity of cultural, social, and legal issues surrounding the sale of a child, the unlawful actions and the legalities of child prostitution, and child pornography are tacitly loaded concepts.1 The realities of child protection in the twenty-first century, under the auspices of international law and global policy, are complex. Without laws to protect children, countless children are likely to be damaged for life due to the physical, sexual abuse, and violence that create the characteristics of adverse childhood experiences (ACE) (Dierkhising et  al., 2020).2 Consequently, this chapter addresses the multidisciplinary and transdisciplinary traditional boundaries and how other States may model similarly-situated practices. The U.N. General Assembly, Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC), was adopted on 16 March 2001.3 As of 31 December 2021, the OPSC has 121 signatories and 177 State Parties. Some Member States identify reservations that primarily evolve around articles 2, 3, 5, 7, and 28 that focus on various interpretations of ‘sale’ in various national applications and jurisdictional constraints.4 Nevertheless, there are vast similarities of the OPSC Member States and parties to the ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour C-182 (‘Worst Forms of Child Labour Convention’). As such, the provisions of OPSC,5 Article 1 promulgates and sets the global stage on the protection of children against the sale, ‘States Parties shall prohibit the sale 1  There has been an evolution in the terminology used since the adoption of the Optional Protocol, with many organizations now preferring to use the terms ‘sexual exploitation in prostitution’ and ‘sexual exploitation through abusive images’, which highlight the exploitative aspects of these phenomena, rather than ‘child prostitution’ and ‘child pornography’. 2  Adverse childhood experiences (ACEs) are traumatic events that occur during childhood. ACEs can have a significant impact on a person’s physical, emotional, and mental health throughout their life. 3  Adopted and opened for signature, ratification and accession by General Assembly resolution A/ RES/54/263 of 25 May 2000; entry into force 18 January 2002, in accordance with article 14(1). United Nations, Treaty Series, vol. 2171, p. 227; 4   UN Treaty Collection, Certified true copy: https://treaties.un.org/Pages/ViewDetails. aspx?src=IND&mtdsg_no=IV-11-c&chapter=4&clang=_en#EndDec [Accessed 12 June 2021], OPSC true copy text; Example of reservations: the USA’s reservation, para 2, includes THE TERM “CHILD PORNOGRAPHY”. -The United States understands that the term “sale of children” as defined in Article 2(a) of the Protocol, is intended to cover any transaction in which remuneration or other consideration is given and received under circumstances in which a person who does not have a lawful right to custody of a child. 5  The OPSC drew insight from human rights early conventions: 1921 International Convention for the Suppression of the Traffic in Women and Children, and its Protocol • 1926 Slavery Convention • 1950 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others • 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery • 1979 Convention on the Elimination of

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of children, child prostitution, and child pornography as provided for by the present Protocol’. Article 2 further defines the prohibited conduct and must be considered collectively with Article 3 that details the list of acts minimally covered by a States’ penal legislation or criminal statutes. The entire OPSC is reflected in its most updated form online6 and outlines the protection of child victims in Article 8, prevention in Article 9, and international cooperation in Article 10. The OPSC is structured upon the U.N.  General Assembly, Convention on the Rights of the Child (CRC),7 general principles: (a) CRC, Article 2, The right to non-discrimination (b) CRC, Article 3, The best interests of the child (c) CRC, Article 6, The right to survival and development (d) CRC, Article 12, The right to express opinions freely in matters affecting him/ her and to have those views taken into consideration. The OPSC Preamble identifies aligning CRC articles and speaks to specified rights concerning a child’s separation from parents, illicit transfer, and no-return. Specifically, the OPSC acts as an accompaniment tool to CRC articles 19, 32, 33, 34, 35, and 36 with a holistic encapsulation representing tentacles of Member States’ legal obligations to: (a) CRC, Article 19, Protection from all forms of violence (b) CRC, Article 32, Protection from economic exploitation (c) CRC, Article 34, Protection from sexual exploitation and abuse (d) CRC, Article 35, Prevention of abduction, sale, and trafficking, and (e) CRC, Article 36, protection again all other forms of exploitation Chapter two of the text takes a multidisciplinary approach where the concept remains within the boundaries of international law and looks at the socio-legal aspect of factors impacting the sale of children. Using comparative legal analysis, the discourse encompasses USA v Pendelton and XYZ v Commonwealth of Australia,8 among others, to further extend the dialogue on global jurisdictional issues and international and national laws on the sale of children. The objective of the multiple disciplinary approaches of the case studies is to formulate solutions from real-world global challenges in child protection against child sales, prostitution, and

All Forms of Discrimination against Women • 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. 6   UN Treaty Collection, Certified true copy: Retrieved from https://treaties.un.org/Pages/ ViewDetails.aspx?src=IND&mtdsg_no=IV-11-c&chapter=4&clang=_en#EndDec [Accessed 12 June 2021]. 7  Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989. It entered into force on 2 September 1990, in accordance with article 49; United Nations, Treaty Series, vol. 1577, p. 3. 8  USA v Thomas Pendleton, Criminal Action No. 08–111-GMS; XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 (13 June 2006), ILDC 528 (AU 2006).

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pornography while extrapolating factors inhibiting prosecutory frameworks. The chapter highlights issues where most acts that meet the definitional threshold of sale meet that of trafficking. Application of the appropriate legal definition to the situation presents national confusion and inconsistencies in prosecution; whereas, a party to the OPSC (Article 2) and the Palermo Trafficking Protocol (Article 3) must criminalize the acts in response to each of the definitions: (a) Acts that meet either the definition of sale or trafficking:

(a) Acts that are sale, but not trafficking (b) Acts that are trafficking, but not a sale

(b) Acts that are both sale and trafficking The transition to Chapter three captures the text’s interdisciplinarity arm through analyses and synthesis. It identifies links between societal norms, regional custom constructs of child marriage, and trafficking in person violations. Research and global criminal reports suggest that the trafficking of children has close ties to the trafficking of arms, child soldiering, illegal adoption, organ removal,9 and a multitude of other forms of exploitation (U.N.  Economic and Social Council Report, 2021). Moreover, the challenges of expanding modern technologies across worldwide dimensions create an exponential dimension of Member State treaty compliance and national enforcement issues. Crimes against children do not neatly fit in one categorical component of criminology. Addressing the massive range of changing landscapes of how crimes against children are committed, international and national advocates must continue to pursue implementation models to abate impunity. Globally, voluminous pedophile websites disappear with an intertwinement of organized crime groups that form a web of transnational criminal networks.10 Growing research lends to the inescapable credibility these offenders too often appear to operate with impunity and elude justice (Banks and Kyckelhahn, 2011). The exploitation of children has taken on a transnational character, frequently involving organized criminal groups and networks. Today, the most profitable international organized crime activities are trafficking of arms, drugs, and human beings, including children. UNICEF indicates that the trafficking of children is most often connected to the sale of children, child prostitution, and child pornography, as well

9  Article 3 (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (‘Palermo Protocol’) prohibits trafficking in persons for purpose of “the removal of organs”; and in 1991 the World Health Assembly adopted guidelines on organ transplantation that ban the sale of organs of any person (WHA Resolution 44.25 of 13 May 1991). 10  Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2000, Supplementing the United Nations Convention Against Transnational Organized Crime (‘Palermo Protocol’).

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as to child labour, child soldiering, illegal adoption, and other forms of exploitation (2021).

13.2  The Multidisciplinary Context Analysis The CRC and its implementation with Articles 1, 11, 21, 32, 33, 34, 35, and 36 have the capacity to achieve the prevent and protect provisions. The articles in the form of legislation and State Party measures guarantee the protection of the child from becoming an object for sale and exploitation in child prostitution and child pornography. However, many cases fail due to sociolect gaps in the interpretation of exploitation, the application of the term sexual assault versus charges of rape, the translation of child abuse across cultural and geographic regions, and the varying types of child abuse across jurisdictions. Courts are not uniform in how criminalization takes place within their jurisdictions. The varying interpretations of each States’ obligations often conflict with international and national legislation.

13.2.1  Comparative Case Analysis: USA v T. Pendelton The jurisdiction issues were a primary matter before the court in the case of USA v Pendelton. According to OPSC, Article 3, para 3, the provision notes ‘including attempt and complicity as ‘punishable by appropriate penalties that take into their grave nature. Wherein, Article 4 of the OPSC specifically addresses jurisdiction over the unlawful acts of a child for sale, child prostitution, and child pornography, para 2 further details that States Parties ‘may’ establish jurisdiction over such offences utilizing both passive nationalities equating to the victim as a national of a State. In the case of USA v T. Pendelton, in compliance with its State obligations under the OPSC, where para 3 of Article 5 requires each State Party to grant its courts’ jurisdiction over the sale of children, child prostitution, and child pornography: when the alleged offender is present in its territory, and it does not extradite him or her to another State Party on the grounds that the offence has been committed by one of its nationals. (USA v T. Pendelton).

There have been issues of ambiguity in the application of ‘nationality’. In this case, Germany criminally penalized the perpetrator (Pendelton), and the United States of America exercised double criminality when Pendelton committed the offence abroad. The USA also criminalized his actions. Pendelton fought claiming jurisdiction but lost, as outlined in Table 13.1. This legal maneuver to promote prosecution and criminalization of the offenses can be modeled in the other 177 Member States.

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Table 13.1  CRIN Case: United States of America v. Thomas Pendleton, Criminal Action No. 08–111-GMS

Adapted from: Child Rights International Network (CRIN); Link to full judgement: USA v T.  Pendleton, http://www.ded.uscourts.gov/sites/default/files/opinions/gms/2009/february/ 08-­111.pdf

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13.2.2  Case Analysis: XYZ v Commonwealth of Australia OPSC, Article 4, paras 1–4, sets out the provisional focus on establishing jurisdiction for child trafficking and exploitation offenses.11 Unlike other treaties for child trafficking and exploitation, the Optional Protocol provisions extend territorial control over ships and vessels, art 4, para 1.12 However, the OPSC provisions are essential and adjoin art 39 of the CRC, implying obligations extending beyond national borders’ jurisdictions. Employing: Article 4.2(a) of the Optional Protocol to the CRC on the sale of children, child prostitution, and child pornography – Establishing jurisdiction over offences including sexual exploitation when the offender is a resident or citizen of the territory. Noted, in the judgment, the OPSC links with the Palermo Protocol as the terms trafficking in children and child abduction were not defined by the CRC or subsequent treaties. The ruling encapsulates, Article 34: Sexual exploitation from the CRC and addresses routine matters of sex tourism. The OPSC is integrated as a supporting element of several CRC articles with specific caveats that place an additional obligation upon State parties. Captured within the OPSC is the States’ responsibility for: Related offenses, OPSC.09; terminology application, OPSC.04 and OPSC.06; child prostitution OPSC.04; safeguarding clauses, OPSC.17; ‘sale’ of children terminology, OPSC.04 and OPSC.05; state responsibilities generally criminalization/penalization duties, OPSC.07 and OPSC.09; international cooperation duties OPSC.10 and OPSC.14; the prevention duties OPSC.16; and, the protection of victims, OPSC.15 and OPSC.16′.13

Other examples can be found in how the OPSC details in art 4.2 for State Parties to form their extraterritorial criminal jurisdiction over enumerated offenses by expanding the duty-bearer side of children’s rights. The outcome is that the provision allows States to make it an offense for their nationals to carry out sexual offenses of a child abroad, refer to Table 13.2.

13.2.3  Case: CRIN: Secretary for Justice v. Man Kwong Choi In the case, the State pursued the OPSC and CRC, Article 34, whereby the courts’ reasoning concluded that the possession, production, sale, and distribution of child pornography is strictly prohibited and unlawful, whereas, Article 34. ‘States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral, and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity;  Optional Protocol on the sale of children, art 4, paras 1–4.  ibid., para 1. 13  OPSC, paras 2 to 4 of art 3 of the OPSC. 11 12

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Table 13.2  CRIN, XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 (13 June 2006), ILDC 528 (AU 2006)

Full judgement link: XYZ v Commonwealth [2006] HCA 25; (2006) 227 ALR 495; (2006) 80 ALJR 1036 (13 June 2006), ILDC 528 (AU 2006); adapted from CRIN, citation of source provided. Australia later acceded to the OPSC, 8 Jan 2007 after this decision

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(b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. OPSC, Article 2(c), states for the present Protocol, ‘Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes’. This case also focused on establishing sentencing guidelines and addressed the critical role of general prevention and deterrence measures. General deterrence is linked to prevention and the threat of legal punishment to deter the public (Wright, 2016). On the other hand, specific deterrence aligns with the criminalization of the acts where the impact of the actual legal punishment on those apprehended serves as a deterrence. However, whether deterrence is deployed as a regional or local threat, promoting the risk of detection and lengthy punishment, or a perpetrators’ actual prosecution and punishment, most States are lacking in outlining a coherent model or policy that can be evaluated against worldwide practices (Young Cho, 2015). Without a State upholding its responsibilities to enforce treaty obligation, there would be a remote likelihood of survival and protection from harm for children in vulnerable situations. Exercising a deterrence scheme, the case example is set to discourage others from violating laws protecting children from multiple forms of exploitation. Research suggests that social behaviors can be linked to the need and extent of deterrence measures (Ball, 1955). In this case, the higher court provided focused deterrence strategies and set the precedence for the offenses captured under the CRC, the OPSC, and national legislative adaptations (Fig. 13.1).

13.3  Transdisciplinary – Avoiding Ambiguity Ambiguity in the national law, dualistic implementation from the international law, ferments difficulty establishing criminal behavior parameters. Any international law must be adapted to the multiple cultural divisions. States must adjust to the multitudes of knowledge branches across land and sea to optimize protections obliged in the OPSC. The dualistic implementation of the OPSC and other international instruments leaves gaps where legal terms are not adequately defined, especially in prosecuting exploitative behavior towards children and preventing it from occurring in the first place. A significant example of the OPSC complimenting the CRC is contained within the Luxembourg Guidelines.14 The guidelines speak to the CRC’s

 Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse, adopted by the Interagency Working Group in Luxembourg, 28 January 2016 accessed 14 March 2017.

14

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Case: CRIN: Secretary for Justice v. Man Kwong Choi In the case, the State pursued the OPSC and CRC, Article 34, whereby the courts' reasoning concluded that the possession, production, sale, and distribution of child pornography is strictly prohibited and unlawful, whereas, Article 34. 'States parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral, and multilateral measures to prevent: (a) The inducement or coercion of a child to engage in any unlawful sexual activity; (b) The exploitative use of children in prostitution or other unlawful sexual practices; (c) The exploitative use of children in pornographic performances and materials. OPSC, Article 2(c), states for the present Protocol, 'Child pornography means any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes'. This case also focused on establishing sentencing guidelines and addressed the critical role of general prevention and deterrence measures. General deterrence is linked to prevention and the threat of legal punishment to deter the public (Wright, 2010). On the other hand, specific deterrence aligns with the criminalization of the acts where the impact of the actual legal punishment on those apprehended serves as a deterrence. However, whether deterrence is deployed as a regional or local threat, promoting the risk of detection and lengthy punishment, or a perpetrators' actual prosecution and punishment, most States are lacking in outlining a coherent model or policy that can be evaluated against worldwide practices (Young Cho, 2015). Without a State upholding its responsibilities to enforce treaty obligation, there would be a remote likelihood of survival and protection from harm for children in vulnerable situations. Exercising a deterrence scheme, the case example is set to discourage others from violating laws protecting children from multiple forms of exploitation. Research suggests that social behaviors can be linked to the need and extent of deterrence measures (Ball, 1955). In this case, the higher court provided focused deterrence strategies and set the precedence for the offenses captured under the CRC, the OPSC, and national legislative adaptations.

Fig. 13.1  CRIN: Secretary for Justice V. Man Kwong Choi, [2008] 5 HKLRD 519

art 34, where clarity is provided for distinguishing between sexual exploitation, sexual abuse of a child, and clarity in multiple environments and branches of knowledge. Whether the child is in territorial waters, on land in remote areas of the State, or experiencing exploitation linked to the educational environment, a States’ obligation remains. For the prosecution of a case, definitional application of the terms is critical. On 28 January 2016, the Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse were adopted by the Interagency Working Group on the Sexual Exploitation of Children, more commonly known as the Luxembourg Guidelines.15 The Luxembourg Guidelines address the semantics of phrases and words used within the context of the offense covered under the CRC

15

 ibid.

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arts 34–36 and the OPSC. The guidelines, conjunctively with the OPSC, are implementation tools for member-States. The contents of the guidelines reiterate that ‘words matter’, and it is critical to avoid confusion around the different terminology applicable to the sexual exploitation of children and sexual crimes against children.

13.3.1  Trafficking in Persons The OPSC, art 31(a)(i)b, adds clarity to many elements of trafficking, such as the trafficking of human beings for their organs. The term’ sale of children’ has been defined in art 2(a) of the OPSC as ‘any act or transaction whereby any person or group of persons transfers a child to another for remuneration or any other consideration’.16 To encompass all transaction elements in OPSC art 3, wherein the sale context includes delivery or accepting the transaction is criminally covered. Article 35, CRC, and the OPSC have made it clear that States are obliged to recognize that ‘the sale of and trafficking in children are two distinct but linked human rights violations’, Case of Ramfrez Escobar and Others v Guatemala (Merits, Reparations, and Costs).17 Research by David Smolin focuses on the definition of trafficking under international law and criticizes the narrow perspective. Smolin (2004) avers that the international definition is too easily interpreted as a ‘quid pro quo’ transaction that hinders international adoptions, where adoption is not considered harming a child. Subsequently, the annex to the initial reporting guidelines of the OPSC defined trafficking of children in line with art 3 of the U.N. Convention Against ransnational Organized Crime.18 In addition, the OPSC stands in support of the CRC’s Arts 1, 11, 21, 32, 33, 34, 35, and 36.19 The OPSC also extends member-­ states measures to protect the child from sale, prostitution, and pornography. Grave concerns for the international trafficking of children in the various forms of exploitation prompted the OPSC.  In 1999, in Vienna, the International Conference on Combatting Child Pornography on the internet further prompted worldwide  OPSC, art 2(a).  Case of Ramfrez Escobar and Others v Guatemala (Inter-American Court of Human Rights (IACtHR)) 2018, para 313 (translated from Spanish to English). 18  Committee on the Rights of the Child (CRC Committee), Revised Guidelines Regarding Initial Reports to be Submitted by States Parties Under Article 12, para 1 of The Optional Protocol on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (3 November 2006), Annex. 19  Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, requires parties to prohibit the sale of children, child prostitution and child pornography; OPSC entered into force on 18 January 2002. 16 17

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criminalization efforts that focused on production, distribution, exportation, transmission, importation, intentional possession, and advertising child pornography’ (Innocenti Discussion Papers, 2021).20

13.3.2  The Palermo Trafficking Protocol and the OPSC The OPSC appears to remove the shortcomings in the Palermo Trafficking Protocol, as it defines sexual abuse. Unlike other instruments, the OPSC draws from the U.N.  Secretariat definition, derived collaboratively with the ‘2017 World Health Organisation (WHO) Clinical Guidelines on Responding to Children and Adolescents Who Have been Sexually Abused’. The guide recaptures ethical principles and human rights standards from the CRC and OPSC to include the principle of best interest, evolving capacities, non-discrimination, and participation.21 The guidelines address many vital issues that would apply to the marginalized child and other similarly-situated children who have been sexually abused, including addressing: (a) sexual abuse is when an adult commits the criminal act, and other children, who are by virtue of their age or development stage are in a position of responsibility or trust, or power over the victim (Referring to situations where there is little or no evidence, and there is no specification as to whether the children sexually abused whereby another adult or child upon a child).22 (b) child sexual abuse due to incest (a child is forcibly displaced and often in precarious situations with family and non-familial adults and adolescents) (c) whether sexual assault is solely a sexual act or whether it is a combination of the intent ‘to satisfy the needs of the perpetrator or another third-party including that of seeking power over a child’,23

(a) the three types of child sexual abuse:



 ibid.  Ibid. 22  ibid. 23  ibid. 20 21

(i) ‘non-contact sexual abuse –(for example, threats of sexual abuse, verbal sexual harassment, sexual solicitation, indecent exposure, exposing the child to pornography); (ii) contact sexual abuse involving sexual intercourse (that is, sexual assault or rape); and

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(iii) contact sexual abuse, excluding sexual intercourse but involving other acts such as inappropriate touching, fondling, and kissing. Child sexual abuse is often carried out without physical force, but rather with manipulation (for instance psychological, emotional, or material)’.24 In most States with dualistic legislation of the ratified international law, there is an omission of the reference to CRC’s Article 34 definitions of sexual abuse and sexual exploitation. The Optional Protocol to the Convention on the sale of children’s definitions of exploitation captures the multiple forms of exploitation. The OPSC further obliges each state party, under article 11: Nothing in the present Protocol shall affect any provisions that are more conducive to the realization of the rights of the child, and that may be contained in: ( a) The law of a State party; (b) International law in force for that State.

13.3.3  The Evolving Landscape of Child Exploitation The omission of critical research-based global terminology has hindered the effective criminalization of children’s sexual abuseand exploitation. Specifically, those in vulnerable situations fail to reflect transdisciplinary landscapes’ evolving issues. Referring to a prominent case of Rantsev v Cyprus and Russia25 are the provisions outlined in the OPSC, art 4, paras 1–4. The article provisions focus on establishing jurisdiction for child trafficking and exploitation offenses.26 However, missing from the Rantsev v Cyprus and Russia ruling is the explicit prohibition of selling children as captured in the OPSC, arts 1–3. The Rantsev v Cyprus and Russia27 ruling clarifies the criminalization of human trafficking, which implies a movement for the crime to occur. However, it is essential to convey that transportation is not a required element. Instead, the sale of children includes all the historical forms of dowry, where families exchange a child for enumeration of any kind. Most recently, the harvesting and trafficking of human embryos used in-vitro fertilization (IVF) treatments. A subject that has been limited in documentation to date but very present has been addressed by the European Union. The European Parliament resolution on the trade in human egg cells was recently published in the Official Journal of the European Union, 15 December 2005,28 and serves as a global model on evolving areas of exploitation.  ibid.  ibid. 26  Optional Protocol on the sale of children, art 4, paras 1–4. 27  Rantsev v Cyprus and Russia App no 25965/04 (ECtHR, 7 Jan 2010) at 64–65, paras 264–68. 28  para 9, ‘Wishes to see egg cell donation, like organ donation generally, strictly regulated in order to protect both donors and recipients and to tackle all forms of human exploitation’; para E, ‘whereas, despite the possibility of serious effects on women’s life and health, the high price paid 24 25

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13.4  Conclusion A straightforward summation of the OPSC is that the treaty strengthens the CRC, aligns well with multiple Human Rights Treaties and documents, clarifies, and concentrates on the exploitation progeny of children through the means of sale, for or used within the context of prostitution, and for the creation and distribution of child pornography (sexual abuse materials).29 Furthermore, the OPSC expands to define further and illuminates the preventive and responsive measures by enumerating the types of measures appropriate from the Commercial Sexual Exploitation of Children’s 1996 Stockholm Declaration and Agenda for Action of the World Congress (Dierkhising et  al., 2020).30 In addition, the founders’ inclusiveness of other provisions of relevant international legal instruments has enabled the protection of children globally. These instruments are inclusive of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, the Hague Convention on the Civil Aspects of International Child Abduction, the Hague Convention Jurisdiction, Applicable Law, Recognition, Enforcement, and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children,31 and International Labour Organization Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worse Forms of Child Labour. The CRC and the OPSC should be viewed holistically, as part of a mosaic tile of interrelated legal obligations and as part of States’ accountabilities for children’s rights, conjunctively with a host of international instruments, specifically,

for egg cells incites and encourages donation, given the relative poverty of the donors’; para H, \ whereas the procurement of cells may not be subject to any pressure or incentive, whilst the voluntary and unpaid donation of egg cells must be guaranteed, so that women do not become ‘suppliers of raw material’. 29  Commercial Sexual Exploitation of Children is a specific kind of human trafficking. It is the trafficking of people for the sale or exchange of sexual acts to another where, typically, a third party benefits. 30  The World Congress against Commercial Sexual Exploitation of Children, The Stockholm Declaration and Agenda for Action (1996), para 12.; ‘Stockholm Declaration includes the criminalization of commercial and other forms of sexual exploitation of children, penalization of offenders, protection of child victims, review, revision and effective enforcement of laws, programmes and practices both to eliminate the practice of commercial sexual exploitation of children and to protect children from such exploitation, development and implementation of ‘comprehensive gender-sensitive plans and policies’, assistance to child victims including recovery and reintegration facilities, and awareness-raising through education, social mobilization and development targeted at parents and children’ 31  Refer to Hague Conference on Private International Law, ‘The Implementation and Operation of the 1993 Hague Intercountry Adoption Convention, Guide to Good Practice’  – Guide No. 1, Family Law, Bristol, for the Hague Conference on Private International Law, The Hague, 2008, note 39 (accessed 31 December 2021).

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(a) Article 3 (d) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (‘Palermo Protocol’) defines a child as any person under the age of 18, (b) United Nations General Assembly, ‘United Nations Convention against Transnational Organized Crime’ Resolution 55/25, United Nations, New York, 15 November 2000, (c) International Labour Organization, Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, International Labour Organization, Geneva, 17 June 1999, article 2, (d) International Labour Organization, Convention concerning Forced or Compulsory Labour, International Labour Organization, Geneva, 28 June 1930, article 2.1. (This definition is followed by exclusions covering compulsory military service, civic duties, prison labor, services required during a natural disaster, and ‘minor communal services’.). The two case analyses were selected to illustrate law enforcements’ dedication to using international and national law provisions to appropriately criminalize acts outlined in OPSC, Articles 2 and 3. The methodological approach and examination of aligning laws served as an intercessor to incidents where jurisdiction and definitions may have prohibited executing the fullest extent of the law. The comparative analysis in this text has provided an explanatory interest in seeking, obtaining, and gaining a better understanding of the causal processes involved in the legal and socio-legal matters in case law surrounding the OPSC. Moreover, the cases further explore the benefits of States ratifying the OPSC for protecting children against exploitation, sale, child prostitution, and child pornography.

References Ball, J.  C. (1955). Deterrence concept in criminology and law. Journal of Criminal Law & Criminology, 347. Retrieved from https://scholarlycommons.law.northwestern.edu/jclc/ vol146/iss3/5 Banks, D., & Kyckelhahn, T. (2011). Characteristics of suspected human trafficking incidents, 2008–2010. U.S. Department of Justice, Bureau of Justice Statistics. Dierkhising, C.  B., et  al. (2020). Commercial sexual exploitation of children. OUP. https://doi. org/10.1093/OBO/9780195396607-­0278 Innocenti Discussion Papers. (2021). Investigating Risks and Opportunities for Children in a Digital World: A rapid review of the evidence on children's internet use and outcomes, Innocenti Discussion Papers, no. 2021-01, Retrieved from https://www.unicef-­irc.org/publications/pdf/ Investigating-­Risks-­and-­Opportunities-­for-­Children-­in-­a-­Digital-­World.pdf Smolin, D. (2004). Intercountry adoption as child trafficking. Valparaiso University Law Review, 39(2) Retrieved from https://scholar.valpo.edu/vulr/vol39/iss2/1

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UNICEF. (2021). Interventions to Reduce Violence Against Children in Low- and Middle-income Countries: Evidence and gap map research brief of phase 1 and 2 findings, Innocenti Research Briefs, no. 2021-05, Retrieved from https://www.unicef-­irc.org/publications/pdf/Interventions-­ to-­Reduce-­Violence-­Against-­Children-­in-­LMICs-­Evidence-­and-­Gap-­Map-­Overview-­Ph1-­ and-­2-­findings.pdf (Accessed 3 December 2021). Wright, V. (2016). Deterrence in criminal justice (The sentencing project 2010). Retrieved from https://www.sentencingproject.org/wp-­content/uploads/2016/01/Deterrence-­in-­Criminal-­ Justice.pdf Tanya F. P. Herring is an interdisciplinary educator and researcher focused on international criminal and human rights law. Her research and lectures focus on proffering policies, provisions, and measures that support the prevention and protection of vulnerable populations, specifically children, who are subjected to violence, are a refugee, stateless, or forcibly displaced in environments where States are challenged in combatting human trafficking and the multiple forms of exploitation. Currently, she is a Policy Chair for the United Nations Convention on the Rights of the Child, an international legal scholar, who has traveled the world, a Research Fellow with the International Communities Organization (ICO) of London, and a Post-Doctoral Researcher at Wales Observatory on Human Rights of Children and Young People, Bangor and Swansea Universities, U.K.  Dr. Herring has subject-matter expertise in the issues of statelessness and child rights, with specific emphasis on transnational law instruments: The United Nations Convention against Transnational Organized Crime supplementing The Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, the United Nations Convention on the Rights of the Child (UNCRC), and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, Optional Protocol on the Involvement of Children in Armed Conflict, and Optional Protocol on a Communications Procedure ILO; and Forced Labour Conventions, 1930 (CO29), C182 Worst Forms of Child Labour, and the most recent ILO treaty efforts, the P029 - Protocol of 2014.  

Chapter 14

Discourses of Globalisation, Ideology and Social Justice: Major Trends Joseph Zajda

Abstract  This chapter explores major discourses surrounding the problematic relationship between education, social justice and social justice policies, against the background of comparative education research. The chapter analyses and critiques the overall trends and interplay between education, social justice and the state. By focusing on the competing discourses of education and social justice, the chapter examines and evaluates critically both the reasons and outcomes of education reforms, policy change, with respect to social justice, and providing a more informed critique of the Western-driven paradigms of social justice and inequality. The chapter argues that the right to freedom, the right to a fair trial, the right to freedom of religion and the right to engage in political activity are significant principles of a pluralist democracy, and social justice globally. The chapter concludes that in order to advance the discourse of social justice for all, and grounded in participatory democracy, we need current evidence of significantly more social justice reforms at every level. Keywords  Access · Accountability · Children’s rights · Citizenship education · Critical pedagogy · Culture · Democracy · Discourse · Discrimination · Equality · Ethnicity · Freedom · Globalization · Human rights · Human rights education · Human rights policy documents · Human rights violations · Ideology · Inequality · Justice · Moral education · Poverty · Principles of social justice · Prejudice · Social action · Social inequality · Social justice · Social justice discourses · Social stratification · Tolerance · United Nations · UNESCO · Values

J. Zajda (*) Faculty of Education & Arts, School of Education, Australian Catholic University, East Melbourne, VIC, Australia e-mail: [email protected] © Springer Nature Switzerland AG 2022 J. Zajda et al. (eds.), Globalisation, Ideology and Social Justice Discourses, Globalisation, Comparative Education and Policy Research 30, https://doi.org/10.1007/978-3-030-92774-5_14

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14.1  Social Justice as an Ideal Construct On the surface the need for social justice in the world is self-evident. But we must explore the questions that John Rawls asked: ‘What makes a society just? How is social justice connected to an individual’s pursuit of the good life?’ (Nussbaum, 2001). Is social justice simply achieved through the moral acts of autonomous citizens in a free society who of their own volition and with good will and by consensus meet the ethical obligations of their community? But what if the moral norms of the society include reprehensible practices? What then are the responsibilities of citizens with regard to norms of morality of their community when the norms contravene basic human rights? In a just society the citizens understand that results of their acts are incumbent not only on themselves but are universally applicable. The word social distinguishes social justice from the concept of justice as applied in the law, and from more informal concepts of justice embedded in systems of public policy and morality, which differ from culture to culture and therefore lack a global dimension. There is a consensus that social justice refers to the overall fairness of a society in its divisions and distributions of rewards and burdens. Hayek points out a major defect of twentieth century theories of social justice. Most authors assert that they use it to designate a virtue (a moral virtue). But most of their descriptions ascribed to social justice refer to impersonal states of affairs, including ‘high unemployment’, ‘inequality of incomes or ‘lack of a living wage’ are cited as instances of ‘social injustice’. Hayek (1977) argued that social justice is either a virtue or it is not. If it is, it can properly be ascribed only to the reflective and deliberate acts of individual persons. Some scholars who use the term, however, ascribe it not to individuals but to social systems. They use ‘social justice’ to denote a regulative principle of order, especially the redistribution of wealth, income and power. Their focus is not virtue but political economy and power (see Novak, 2000). There are at least three conceptual and methodological issues that are relevant to current discourses of education and social justice globally. Firstly, there is no consensus as to the meaning of social justice. In addition, the term ‘social justice’ is a multi-layered ideal construct and refers to a contested and contentious concept (Troyna & Vincent, 1995). Sharon Gewirtz (1998, p. 469), for instance, found ‘very little explicit discussion of what social justice means or ought to mean’. Others have expressed concerns that that some terms commonly used as synonyms for the term social justice are in fact ‘dangerous’ (Dunkwu & Griffiths 2001, p. 11) because they could denote a monocultural or other limiting position, rather than connotate the contested and competing interpretations of the term in a culturally and ideologically diverse world. Secondly, it is assumed, as one of the many taken-for-granted assumptions, that social justice is attainable in any society, and at any time. Rikowski (2000) in his paper ‘Education and Social Justice within the Social Universe of Capital’ argued that social justice cannot exist in a capitalist society, reflecting social inequality: Social justice is a latent social form within capitalist society that cannot attain real existence. As sustainable social justice is impossible on the basis of capitalist social forms, the

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drive to create social justice in capitalist society – fired by the anger of shocking social inequality – pushes at the boundaries of capitalist social relations, and against the limits of capital itself. The struggle for social justice in capitalist society is, therefore, an aspect of a struggle for a form of life where social justice is possible.

Thirdly, there is an ambivalent nexus between the state, social stratification and social justice. The greater the social inequality, the less one finds social justice. The unequal distribution of economic, social, and political capital is likely to make it difficult for reform-minded individuals and policy makers to address effectively differences in inequality, and discriminations in schools and society globally. One of the key issues in education policy reforms globally is how such liberal in spirit policies may actually contribute towards the creation of greater social justice in schools and societies. The creation of an egalitarian and just society for everyone is a dream for all empowering and egalitarian pedagogues. But it will remain a dream, and mere hollow rhetoric, or magic words in policy, unless we debate more vigorously social inequality in the global culture. We also need to act, not just talk. We need to critique vigorously the existing status quo of stratified school systems. We need to focus our debate on the dialectic of the global and the local and the unequal distribution of socially valued commodities, such as power, wealth, income and education (Zajda 2021a). Weiler et al. (2002) argued that inequalities in education, together with privatisation and marketisation would have a profound effect on achieving social justice, due social and economic stratification: As numerous educational researchers have documented, existing schools are profoundly unequal, stratified by race and class, and increasingly driven by the standardized testing of students and teachers and the deskilling of teachers through the introduction of packaged curricula geared to standardized tests. The “marketization” of education is dominant at both the federal and state levels, with free-market educators calling for the privatization of schooling through a variety of means – vouchers, for-profit charter schools, the commercialization of school spaces and forced dependence on advertising (Weiler et al., 2002).

14.2  Social Justice and Inequality Social justice, as a social policy, is the natural aspiration of all democratic societies and remains the only long-term guarantee for developing and sustaining democracy, peace, tolerance and harmony in the world. Despite the seemingly egalitarian spirit of the reformers and policy makers promoting social justice, and in view of the market forces dictating privatisation, and marketisation in education and society, ambivalent legacies of the past, and unresolved critical education and policy issues continue, by and large, to remain the same, and are still on the policy agenda (Zajda, this volume-a). They include, among other things, the on-going economic and social inequality, mentioned by OECD (2018) report on Inequality, World Bank (2019) report on Poverty, and Milanovic (2018) analysis of global inequality in his book Global inequality. A new approach for the age of globalization. Inequality was discussed more than 40 years ago by Coombs (1982) in his article ‘Critical world

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educational issues of the next two decades’. More recently, social inequality was discussed by Oxfam International executive director Winnie Byanyima (2017), who stated that ‘inequality is trapping hundreds of millions in poverty’ It is obscene for so much wealth to be held in the hands of so few when one in ten people survive on less than $2 a day...inequality is trapping hundreds of millions in poverty; it is fracturing our societies and undermining democracy (Oxfam International, 2017; see also 2021 report).

The United Nations proposes that in order to deliver quality education for all, which is one of the tents of social justice and human rights, there is a need to eliminate the ‘cycle of poverty’: …education is the key that will allow many other Sustainable Development Goals…to be achieved. When people are able to get quality education they can break from the cycle of poverty. Education therefore helps to reduce inequalities and to reach gender equality (UN, 2018a, p. 1).

However, as Hart (2018) explains, in order to change our perception of social justice, it is necessary to develop a better knowledge of the ‘nature and causes of present injustices’ located in educational institutions: ...and to accept that educational processes are far from benign, leading to oppression as well as liberation. In specific terms, the core task at hand is seeking insight into education-­ related inequalities and this paper foregrounds three spaces in which these inequalities manifest themselves (Hart, 2018).

According to Hart (2018), one needs to acknowledge that educational institutions, and the way they structured, may be reproducing inequality and social injustice. Becoming conscious of the roles of educational institutions in the ‘perpetuation of injustices and oppression is a first step on a long journey of development’ (Hart, 2018).

14.3  Dominant Models of Social Justice There are many models and approaches to social justice, reflecting dominant ideologies and epistemological differences. Ratts, et al. (2010) in their article discussed five distinct dimensions of social justice: naiveté, multicultural integration, liberatory critical consciousness, empowerment, and social justice advocacy. To add to these dimensions of social justice, I would like to suggest that social justice discourses, like those of human rights discourses, can be divided into four broad categories: humanism, progressivism, reconstructionism and critical discourse analysis. These discourses represent approaches to the ways of analysis of theoretical bases of knowledge construction.

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14.3.1  Humansim Humanistic approach in education focuses on individuals’ emotional wellbeing, feelings, and potential to achieve knowledge at the highest level self-actualization. A relevant humanist perspective was developed by Veugelers (2011), who focused on values and norms, as well as citizenship education. He showed how discourses on values have changed in the last decades and what the possibilities are for a humanist perspective on both autonomy and social involvement. He argued for a ‘critical democratic citizenship with a strong focus on meaning-making, diversity, bridging, and embedding morality development in political processes of social justice’(p. 4). In her Kiwan (2015), like Veugelers (2011), and other social justice and human rights researchers, also focuses on what it means to be a human being within the context of the Universal Declaration of Human Rights, and citizenship education. It can be argued that if the source of social justice and human rights is the individual’s moral nature, then individuals are guided by their moral compass. In short, both social justice and human rights are value-based, hence normative. Progressivist perspective in education was developed to stress the individual and experiential learning, best captured by John Dewey and his child-centred pedagogy. Dewey focused on the child’s personal experience in learning in his book Democracy and Education (1916), which became a guide for progressivist and experiential pedagogy during the twentieth century. This was a new thinking in education, in contrast to the traditional education of the nineteenth century, which was based on preparation for the university. Learning by doing, or experiential learning, is the key principle of progressivist pedagogy. Experiential learning, as opposed to traditional and rote learning, denotes knowledge acquired from experience, rather than formal schooling (Dewey, 1938). Experiential learning theory (ELT) defines learning as ‘the process whereby knowledge is created through the transformation of experience. Knowledge results from the combination of grasping and transforming experience’ (Kolb, 1984). ELT offers a pragmatic and holistic perspective of the learning process. Experiential learning can be traced to the experimental pedagogy of John Dewey, Jean Piaget, Carl Rogers, Ivan Illich, Paulo Freire and others. Experiential learning is relevant to other major educational theories, ‘including critical pedagogy, progressive pedagogy, empowerment-based pedagogy, and transformational pedagogy’ (Zajda, 2008). Overall, the progressive education philosophy advocated that children should be taught not only how to think, or critical thinking, but also learn by experiencing real-world situations. Reconstructionist perspective in education and human rights education focuses on improving people’s lives in their cultural settings. Since culture is ubiquitous in our society, with its core elements of ideology, organizations, language, values and technology, it is most relevant to human rights education. By examining the existing economic and social conditions, defining inequality, individuals become more aware of factors responsible for it, and engage in social actions to change the conditions perpetuating economic and social inequality. The Transformational Model of

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human rights education of Tibbitts (2008) is a vivid example of this (see Zajda, 2021a). Critical discourse analysis examines and analysing power relationships in society, as expressed through language and social practices. Foucault (1977) used the role of discourses in wider social processes of legitimating and power, and emphasizing the construction of current truths. Foucault attempted to trace the beginnings of internalised moral behaviour, or a reflexive relation to the self in human beings. Examples are presented of various approaches to discourse analysis, including deconstruction and preferred reading and interpretation of the text. Discourse, derived from critical theory, is fundamentally a form of critical and deconstructive reading and interpretation of a text. Rea Zajda (1988) used discourse analysis in her work to examine the construction of the self, gender and identity. She argued that ‘Discourse is concerned with the social production of meaning’. These meanings, she argued, can be ‘embodied in technical processes, in institutions, in patterns for general behaviour, in forms for transmission and diffusion and in pedagogical forms’ (Zajda, 1988, p. 11). With reference to discourse analysis, Zajda (1988) argued that discourse ‘can also refer to not only statements, but social or institutional practices through which the social production of meaning takes place or is embodied’ (Zajda, 1988, p. 11). She was one of the first researchers to examine, construct and use discourses of the self and sexuality. More importantly, Zajda (1988) challenged the neutrality of knowledge and ideology in language and text. Zajda (1988) argued that the critical aspect of discourses challenges both ‘the accepted hierarchical structuring of authority concerning knowledge and the neutrality of knowledge and ideology. It asks questions about the historical and cultural conditions in which discourses emerged’ (Zajda, 1988, p. 12).

14.4  Current Research on Social Justice Education Current research on social justice, as discussed here, includes discourses of globalisation and social justice and social justice policies, globalisation and the ideologies of children’s rights, how globalization is reshaping education when it comes to the issue of language of instruction, social justice and human rights in the twenty-­ second century - equity principle, inclusive education and discrimination in France, the colour of maternal mortality: state discourse and the struggle for reproductive justice, The COVID-19 pandemic and the globalization of trauma: a case for health care as a human right, ideology, social justice and global homelessness, human rights and cultural resource management in the united states, migratory debt: on the origins and consequences of uneven migratory mobility between centers and peripheries, mandatory retirement of older adults: notes from Iceland, the pressure of incommensurability: when water is life becomes water for life at the united nations, the multidisciplinary, interdisciplinary, and international global policy outlook of the optional protocol on the sale of children, child prostitution and child

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pornography (OPSC), and the multidisciplinary, interdisciplinary, and international global policy outlook of the optional protocol on the sale of children, child prostitution and child pornography (OPSC) and major trends in discourses of globalisation, ideology and social justice. Joseph Zajda and Yvonne M. Vissing (this volume) explore major discourses surrounding the problematic relationship between education, social justice and social justice policies, against the background of comparative education research. Social justice is an attempt to answer the following fundamental question: How can we contribute to the creation of a more equitable, respectful, and just society for everyone? The chapter analyses and critiques the overall interplay between education, social justice and the state. By focusing on the competing discourses of education and social justice, the chapter examines and evaluates critically both the reasons and outcomes of education reforms, and policy change, with respect to social justice, and provides a more informed critique of the Western-driven paradigms of social justice, against the global inequality. Jane Williams (this volume) discusses ideologies of children’s right and notes that actualization of children’s rights remains often frustrated, as other claims, grounded in other globalized ideas and influences, or simply in demands for urgent responses to events, take priority. But the idea of children’s rights has remained resilient. It is a product of globalization of discourse, a subject of globalization of governance, and an object of globalized civic movements. Birgit Brock-Utne, on the other hand, examines language instruction, by comparing the situation in Tanzania with the one found in an industrialized country in northern Europe, Norway. In the Nordic countries English has become the most important language for academic research and publishing, affecting the status of the Nordic languages. Also in Norway, a process is taking place which can be termed Anglobalization. This policy works against social justice. José Noronha Rodrigues and Dora Cristina Ribeiro Cabete (this volume) examine major public policies on social justice and respect for human rights. It is argued that there will only truly be social justice when these public policies are based on equity, dignity and respect for the most basic human rights. Social justice, social security, dignity, equality, equity and human rights serve to maintain and strengthen social cohesion among people and the co-responsibility of all for any violations of the most basic human rights. By comparison, Elisabeth Regnault discusses inclusive education, whose aim is to bring marginalized children, back to the center of school systems, needs to consider discrimination, as experienced by Turkish and Arabic migrants. Inclusive education promotes assimiliation and integration of migrants and their children, because inclusion involves the whole society and not just migrants. Discrimination can occur involuntarily but is influenced by social representations and prejudices concerning specific groups in society. France has difficulties transcending its tradition of assimilation. The state is very prescriptive and does not allow dialogue between pupils with different values who speak different languages, in order to find common values in the French intercultural society. Turkish and Arabic languages need to be

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accepeted and recognized as international languages, in order to bring excluded children, on the margins of the schools system, back to the center. Nazneen Khan (this volume), using discourse analysis, examines the state-­ generated digital content, deliverables, and research reports of fifty-one state MMRCs, in order to explore and analyze the extent to which MMRCs engage with maternal health as a reproductive justice, and therefore intersectional and human rights, issue. Her findings reveal that MMRCs generally do not frame maternal health as a human right; instead, maternal mortality is largely understood to be an individual outcome rooted in individual behaviours. By doing this, MMRC discourse overlooks social inequality, as a root driver of maternal death. The implications of MMRCs adopting a reproductive justice approach, including the saving of mothers of colour and their newborns’ lives, are discussed. Michele Solloway and Rebecca Stahl (this volume) examine the intersection of three seemingly unrelated topics  – globalization of technology, communications, and rise of social media as a primary source of information and connection; the worldwide COVID-19 pandemic and its impact on our understanding and experience of trauma; and healthcare as a human right. The authors argue that globalization of communications, concurrent with the pandemic, resulted in a phenomenon unique in our human history – the universal and simultaneous experience of trauma and the collective, real-time knowledge that this was happening to us all. This fundamentally shifted our beliefs, ideology, and narrative about trauma, reduced stigmatization, and opened possibilities for expanding treatment. The authors explore the concept of healthcare as a human right and its operational imperative as applied to one outcome of the pandemic – the treatment of trauma and its symptoms. The authors discuss the United Nations’ precedents for healthcare as a human right, how the United States relates to these treaties, and their applications to addressing trauma. Although trauma recovery for adults is important, we focus on and promote the urgency of addressing trauma experienced by children and adolescents, because of its critical developmental and lifelong impacts, and high economic and opportunity costs. Yvonne M. Vissing (this volume) argues that homelessness is a growing global concern that will continue to escalate unless communities develop comprehensive plans to prevent it in the first order and to provide appropriate intervention, treatment, and recovery options when it occurs. Changing demographic characteristics indicate that we can predict greater housing distress among young people. This is quite disturbing to their psycho-social development and health and wellbeing and thus homelessness in youth must be considered as a global public health problem. There is no one-size-fits-all approach to addressing youth homelessness around the world. Each state must consider its own demographic, institutional, legal, and governmental situations. Preliminary paradigms have been outlined to consider what all countries have in common regarding their approach to homelessness. For every paradigm considered, there must be proposed solutions in place. For every solution there will be intended and unintended consequences and potential problems. Forecasting what those challenges may be can help communities and organizations to put into place buffers to reduce the impact of those problems.

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Kathryn E.  Krasinski and Fran Seager-Boss (this volume) discuss changing human rights ideology in Cultural Resource Management (CRM), a branch of archaeology that deals with large-scale construction projects on Federal lands, with federal funding, or requiring a Federal Permit. The identification, interpretation, and ownership of cultural resources are integral to Indigenous sovereignty. Current American CRM process largely disenfranchises Indigenous peoples from their cultural heritage, but has the potential to enrich human rights through a consent model guided by dialogue and collaboration. Postcolonial approaches via community-­ participatory methods may serve as a model for that transition. Leonardo Diaz Abraham and Rodrigo R.  Gomez Garza (this volume) analyze critically the characterization of massive migratory movements, as a direct consequence of the actions of developed countries. The authors argue that domination/ subordination is historical and structural, and it has been perpetuated for centuries through the different economic power transformations of the metropolises manifested in economic policies, armed interventions, or the dispossession of resources. The development of this type of research contributes to deepening the debate on reparation policies and on who and how should carry them out, especially now when displacements are in the millions and are expected to continue to grow in magnitude. It is a humanitarian catastrophe, at a time when the wealth of certain countries continues to grow in proportion to the misery of others. It is now necessary to recompose the nationalist vision of the exclusive ownership of human rights, which is limited to its localized action, and shift it towards an emancipatory conception based necessarily on a counter-hegemonic conception of cosmopolitan legality. Jan Marie Fritz (this volume) focuses on examining mandatory retirement, a rather hidden and unaddressed social justice issue. Mandatory retirement - sometimes referred to as forced, enforced, statutory or compulsory retirement - is the age at which persons who hold certain jobs or offices are required by business, custom or law to leave their work. While countries frequently discuss increasing concern about care for “the elderly,” many of these same countries have mandatory retirement rules for older adults. People often seem surprised that older adults can be seen as less valued in some societies and do not connect this, at least in part, to whether there is an imposed “normative” structure of mandatory retirement. There does not seem to be recognition that mandatory retirement is a discriminatory act. While some information is provided about mandatory retirement in a few countries, the focus is on Iceland, a progressive country recognized as number one in the world for gender equality, but also a country with a mandatory retirement policy. The chapter covers the following topics: social justice and human rights; ageism and the history of mandatory retirement; the case of Iceland; and stories of those who have experienced forced retirement. Ruby Lindiwe Turok-Squire (this volume) examines her search for global water justice. She presents two approaches. One worldview, voiced widely within United Nations literature, can be summarised as water for life, and the idea that water is a human right. Another, voiced by representatives of some Indigenous communities, can be summarised as water is life, and the idea that water requires its own rights, equivalent to human rights. This chapter argues that these two worldviews collide

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repeatedly in the UN’s forums of ‘global justice’. They collide as they imply two incompatible imaginations of the relationship between water and humans, and consequently, of a system of justice that would be adequate for humans and water. This incommensurability exerts a pressure upon the UN, in that a marginalised worldview, water is life, has the potential to undermine the dominant worldview, water for life, and its implications for justice, implications to which the UN doggedly adheres. In response to this pressure of incommensurability, the UN would appear to have two choices: avoid it, or try to witness it. Tanya F.P. Herring (this volume) argues that human rights of children are traversed across a multidisciplinary, interdisciplinary, and international policy network. Globally, children in poverty, living on the street, in urban and public remote areas, and those affected by conflict and post-conflict societies are, particularly at risk. She investigates cross-cultural policies and evidence-based adoptable educational and administrative measures to address the global matters surrounding the sale of children.

14.5  S  ocial Justice, Implementation and Emerging Policy Issues Recent research suggests that social justice education is recognised as an essential tool for building stability in post-conflict societies (UN, 2018a, b; Hart, 2018; Vissing, this volume). In some circumstances, it can also deal effectively with racism, bigotry and xenophobia (Ozdowski, 2009). However, at the same time, many human rights education questions remain unanswered. Human rights education is not only about principles and goals. It is also a dialogue about tools and methodologies that can be used to deliver the quality and value-added education, which reflects the values of social justice and human rights. Human rights education deals with questions of strategies and priorities. Some researchers have argued that social justice is difficult to achieve in a society where social inequality debate is powerless, dormant, or ineffective. The difficulty of attaining authentic social justice globally is affected by economic and social inequality, reinforcwd by social stratification globally. The challenge we face today is one of addressing equity and fairness in the global community, and challenging dominant ideologies, authoritarian power structures, and oppressive totalitarian regimes. The full promotion of economic, social and cultural rights will demand a deep political, social and cultural transformation and change in many nations globally (Zajda, this volume-b). The future of social justice will depend on our ability, skills and power to make social justice education relevant beyond the spheres of law, political institutions, or international relations. Social justice must be explored and understood by all active citizens, irrespective of ideology, race, ethnicity, gender, or religion. The effects of globalisation compel us to address issues of economic and social equity, the rule of

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law, and meaningful participation in real and authentic decision-making process, reflecting pluralist democracy. In the re-envisioning of social justice, as a political and social action platform for social justice dialogue, peace and tolerance, we need to re-examine: • • • • • •

current evidence concerning the nexus between social justice, and human rights competing and contested democracy models language issues in cross-cultural research, social justice and education the unresolved tensions between religion, politics, and values education gender research in the global culture globalisation, economic and social change and the implications for equity, access, democracy and social justice (Zajda & Vissing, this volume).

14.6  Conclusion The prospect of widening economic and social inequalities in societies and education, due to dimensions of social stratification, and market-oriented schooling, are more than real. Access and equity continue to be enduring concerns in quality education. The policy shift away from the progressive and egalitarian vision of education that characterised the 1960s and the 1970s has serious implications for human rights, social justice and democracy in the future. As long as we continue to live in highly rigid stratified societies, divided along the dimensions of power, income, wealth, education, and class, we will have only a limited manifestation of equality and social justice.

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Dill, J. S. (2013). The longings and limits of global citizenship education: The moral pedagogy of schooling in a cosmopolitan age (Vol. 109). Routledge. Dunkwu, K. & M.  Griffiths. (2001). Social Justice in Education: Approaches and Processes (review). British Educational Research Association. http://www.bera.ac.uk. accessed Foucault, M. (1977). Discipline and punish. Penguin. Fritz, J. M. (this volume). Mandatory retirement of older adults: Iceland. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Gewirtz, S. (1998). Conceptualizing social justice in education: Mapping the territory. Journal of Education Policy, 13(4), 469–484. Gewirtz, S. (2002). The managerial school: Post-welfarism and social justice in education. Routledge. Hart, C. S. (2018). Education, inequality and social justice: A critical analysis applying the Sen-­ Bourdieu analytical framework. Policy Futures in Education. Retrieved from https://journals. sagepub.com/doi/full/10.1177/1478210318809758 Hayek, F. (1977). Law, legislation and liberty: The mirage of social justice (1976). University of Chicago Press. Herring, T. (this volume). The multidisciplinary, interdisciplinary, and international global policy outlook of the optional protocol on the sale of children, child prostitution and child pornography (OPSC). In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Khan, N. (this volume). The colour of maternal mortality: State discourse and the struggle for reproductive justice. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Kiwan, D. (2015). Human rights and citizenship education. Routledge. Kolb, D. (1984). Experiential learning: Experience as the source of learning and development. Prentice-Hall. Krasinski, K., & Seager-Boss, F. (this volume). Human rights and cultural resource management in the United States. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Milanovic, B. (2018). Global inequality. A new approach for the age of globalization. Harvard University Press. Milner, H. (2021). Is global capitalism compatible with democracy? Inequality, insecurity, and interdependence. International Studies Quarterly, 65(4), 1097–1110. https://doi.org/10.1093/ isq/sqab056 Novak, M. (2000). Defining social justice. Retrieved from http://www.firstthings.com/ftissues/ ft0012/opinion/novak/html Nussbaum, M. (2001). The enduring significance of John Rawls. In The Chronicle of Higher Education. The chronicle review. 20 July, 2001. Retrieved from http://chronicle.com/free/v47/ i45/45b00701.htm. OECD. (2018). Inequality. Retrieved from http://www.oecd.org/social/inequality.htm Oxfam International (2017). Annual report 2017–2017. Retrieved from https://www.oxfam.org/ en/node/23 Oxfam International (2021). Inequality. Retrieved from https://www.oxfam.org/en/tags/inequality Ozdowski, S. (2009). Human rights and the Beijing Olympics. Political Crossroads, 16(1), 51–74. Ozdowski, S. (2021). Human rights education in Australia. In J. Zajda (Ed.), Third international handbook on globalisation, education and policy research. Springer. Ratts, M. et al 2010). The Dimensions of social justice model: transforming traditional group work into a socially just framework. Retrieved from https://www.tandfonline.com/doi/abs/10.108 0/01933921003705974#:~:text=The%20process%20of%20integrating%20social,used. Regnault, E. (this volume). Inclusive education and discrimination in France: The case of Turkish and Arabic teaching. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer.

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Rikowski, G. (2000). Education and social justice within the social universe of capital. http:// www.leeds.ac.uk/educol/documents/00001618.htm. Rodrigues, J., & Ribeiro Cabete, D. (this volume). Social justice and human rights in the 22nd century: Equity principle. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Solloway, M., & Stahl, R. (this volume). The COVID-19 pandemic and the globalization of trauma: A case for health care as a human right. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Tibbitts, F. (2008). Human rights education. In M. Bajaj (Ed.), Encyclopedia of Peace Education. Teachers College. Troyna, B., & Vincent, C. (1995). The discourses of social justice in education. Discourse: Studies in the Cultural Politics of Education, 16(2), 149–166. Turok-Squire, R. (this volume). The pressure of incommensurability: When ‘water is life’ becomes ‘water for life’ at the United Nations. In J.  Zajda, Y.  Vissing, & S.  Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. United Nations (2018a) Quality Education – Why it Matters. Retrieved from https://www.un.org/ sustainabledevelopment/wp-­ content/uploads/2017/02/ENGLISH Why it Matters Goal 4 Quality Education.pdf. United Nations (2018b). The Sustainable Development Goals Report 2018. Retrieved from https://www.un.org/development/desa/publications/the-­s ustainable-­d evelopment-­g oals-­ report-­2018.html Veugelers, W. (Ed.). (2011). Education and humanism: Linking autonomy and humanity. Rotterdam. Vissing, Y. (this volume). Ideology, social justice and global homelessness. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Weiler, K.  Maher, F. & Maher, F (2002). Introduction: Teacher education and social justice. Retrieved from https://zh.booksc.eu/book/49067883/f54da9 Williams, J. (this volume). Globalisation and the ideologies of children’s rights. In J.  Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. World Bank. (2019). Poverty. The World Bank. Retrieved from https://www.worldbank.org/en/ Zajda, R. (1988). ‘The calculable woman’: Discourses of the self and sexuality in the Australian Women’s magazine Cleo. Thesis. Melbourne: University of Melbourne. Zajda, J. (2008). Experiential learning. In G.  McCulloch & D.  Crook (Eds.), The international encyclopedia of education. Routledge. Zajda, J. (2021a). Globalisation and its impact on education and policy. In J. Zajda (Ed.), Third international handbook of globalisation, education and policy research (pp. 1–13). Springer. Zajda, J. (2021b). Globalisation and education reforms: Creating effective learning. Springer. Zajda, J. (this volume-a). Globalisation and education reforms: Overcoming discrimination. Springer. Zajda, J. (this volume-b). Discourses of globalisation, ideology and social justice: Major trends. In J. Zajda, Y. Vissing, & S. Majhanovich (Eds.), Discourses of globalisation, ideology and social justice. Springer. Zajda, J., & Ozdowski, S. (Eds.). (2017). Globalisation, human rights education and reforms. Springer. Zajda, J., & Vissing, Y. (this volume). Discourses of globalisation, ideology, and human rights. Springer. Joseph Zajda (Australian Catholic University, Melbourne) is Associate Professor in the Faculty of Education and Arts at the Australian Catholic University (Melbourne Campus). He is a Fellow of the Australian College of Educators. He received Vice-­Chancellor’s Award for Excellence in Teaching and Peter Sheehan Excellence in Research Award (Faculty of Education) for his high  

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quality of research activities, and which celebrates sustained research that has had a substantive impact nationally and internationally. He is also a recipient of the Australian Awards for University Teaching for his innovative, influential and sustained contribution to teacher education through scholarship and publication. He has written and edited 51 books and over 130 book chapters. He specializes in globalisation and education policy reforms, social justice, history education, and values education. Recent publications include: Zajda, J. (Ed). (2021). 3rd International handbook of globalisation, education and policy research. Dordrecht: Springer; Zajda, J. & Rust, V. (2020). Globalisation and comparative education. Dordrecht: Springer; Zajda, J (Ed). (2020a). Globalisation, ideology and neo-liberal higher education reform. Springer, Zajda, J. (Ed). (2020b). Human rights education globally. Springer, Zajda, J. (Ed). (2020c). Globalisation, ideology and education reforms: Emerging paradigms. Springer; Zajda, J. & Majhanovich, S. (Eds.). (2020). Globalisation, cultural identity and nation-building: The changing paradigms. Springer. He is also the editor of the thirty six volume book series Globalisation and Comparative Education (Springer, 2015&2024). He edits World Studies in Education, Curriculum and Teaching, and Education and Society for James Nicholas Publishers. His works are found in 445 publications in 4 languages and some 11,000 university library holdings globally. He was awarded an ARC Discovery Grant (with Monash University) for 2011–2015 for a comparative analysis of history national curriculum implementation in Russia and Australia ($315,000). Orcid iD https://orcid.org/ 0000-­0003-­4422-­9782.

Index

A Abdallah-Pretceille, M., 84 Abernathy, W.J., 116 Abrazos, 90 Abuladze, L., 211 Access, 1 Accountability, 1 Acculturation, 91 Acculturation strategies, 91 Adler, M., 2, 4 Adolescents, 115 Adverse Childhood Experiences (ACEs), 126 African languages, 35 African Network for the Prevention and Protection against Child Abuse and Neglect, 25 Ageism, 210, 220, 221, 223, 267 Ageist attitudes, 223 Age-related retirement rules, 215 Aging prejudice, 215 Agustsdottir, G., 222 Agustsson, D.I., 215 Allemann-Ghionda, 84 Allen, H., 183 Almeyra, G., 196 Alphonse, N.R., 38 Althingi, 214 American Anthropological Association (AAA), 177 Anderson, J., 119 Anderson, K., 233 Anderson, T.L., 169 Andrade, A.-I., 95 Antenat, N., 92 Aquinas, T., 2

Archard, D., 20 Aristotle, 3 Arnadottir, O.G., 222 Asgeirsson, F., 215 Assimilation, 83, 91 Asylum-seekers, 137 Atalay, S., 170, 179, 182 Attention Deficit and Hyperactivity Disorder (ADHD), 126 Australian Bureau of Statistics, 148 Autonomy, 163 Ayalon, L., 221, 223 Azzam, Amin A., 91 B Bainbridge, J., 155 Bakahwemama, J.B., 40 Ball, J.C., 251 Ball, R.M., 123 Banks, D., 246 Barry, A., 212 Basic human rights, 69 Basso, K.H., 181 Batibo, H., 36 Baubérot, J., 85, 87 Baubet, T., 93 Becker, H., 6 Beitz, C., 201 Bertucci, M.M., 96 Bgoya, W., 37 Big-Canoe, K., 182 Biggs, S., 208, 220 Birth justice, 101 Biswas, A., 231

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274 Blakeslee, A., 120 Blanchet, P., 90 Blanc, M., 94 Bloom, S.L., 128 Bluestone, B., 116 Boelee, E., 231 Boelens, R., 232 Bologna Declaration, 47 Bonaparte, A.D., 104 Boraas, A., 181 Boyd, W., 17 Bøyesen, L., 50 Brannon, A., 147, 151 Breidlid, A., 46, 47 Bridges, K., 104, 105 Brinbaum, Y., 95 Brjansson, G.S., 215 Brock-Utne, B., 36–38, 40, 49, 50, 265 Brohawn, D., 4 Buchert, L., 38 Burt, M.R., 155 Busch-Geertsema, V., 145, 146 Butler, R.N., 223 Buxton, D., 15 Byanyima, W., 8, 262 Byrne, B., 25 Byrne, T., 157 C Cabasag, C., 110 Cabete, D., 265 Callahan, W.M., 103 Camara, H., 94 Campbell, 140 Camus, R., 90 Candelier, M., 95 Cantwell, N., 19 Capeheart, L., 4 Capital, 195 Capitalist world-economy, 195 Carrizales, T., 155 Casas, T., 233 Castells, M., 6 Cates, W., 106 Centers for Disease Control, 102 Centers for Disease Control and Prevention, 106 Chandler, M.J., 182 Charmez, K., 6 Chen, 202 Chernobyl, 118 Child abuse, 137 Child homelessness, 150

Index Childhood trauma, 126, 128 Child Impact Assessment Guide and Tool, 30 Child pornography, 249, 256 Children, 13, 115, 137 Children’s rights, 1, 13, 14, 23, 27, 31, 265 Children’s rights implementation, 13 Children's sexual abuse, 255 Child Rights Information Network, 25 Chipman, K., 232 Christian, D., 233 Citizenship education, 1 Clair, J., 7 Clanet, C., 84, 90, 91 Clarke, A.E., 110, 111 Climate change, 137, 189, 198 Climate refugees, 199 Coelho, D., 95 Cohen, S., 116 Cohen, W.J., 123 Coleman, H., 41 Colen, S., 105 Collins, P.H., 108 Colonialism, 170 Colonial languages, 35 Colonial power dynamics, 170 Colwell-Chanthaphonh, C., 183 Committee on Economic, Social and Cultural Rights, general comment No. 4, 142 Committee on the Rights of the Child, 23 Compulsory retirement, 267 Confucius, 3 Construction of the self, 264 Convention on the Elimination of All Forms o Racial Discrimination, 141 Convention on the Rights of Persons with Disabilities, 143 Convention on the Rights of the Child, 21, 143 Coombs, P., 261 Cooper, F., 195 Corca, K., 231 Cosmopolitan citizenship, 201 Cosmopolitan perspective, 189 Council of Europe, 55, 64, 73–75, 78, 88, 93, 94 COVID-19 pandemic, 115 Criper, C., 36 Critical discourse analysis, 264 Critical pedagogy, 1 Critical theory, 264 Croke, R., 30 Cruz, M., 61 Cuervo, H., 163 Culhane, D.P., 145, 154, 157 Cultural heritage, 169, 267

Index Cultural identity, 92, 145 Cultural knowledge, 184 Cultural resource legislation, 176 Cultural resource management (CRM), 169, 267 Cultural resource management legislation, 184 Cultural resources, 169 Cultural transformation, 268 Culture, 1, 90 Cummins, J., 95 Cunha, T., 61 D Dana, D., 125, 127 Davies, E., 29 Davis, D.A., 104, 105 d’Azeglio, L.T., 3 Decentralisation, 9 Declercq, E., 105 Deconstruction, 264 de Leeuw, S., 182 Democracy, 1, 55 Deomampo, D., 105 Dependency theorists, 195 Dependency theory, 189, 191 Deprez, C., 96 Dervis, K., 8 Deschine, A., 179 De Tavernier, W., 220, 221 Dettrick, S., 22 Dewey, J., 263 Diaz Abraham, L., 200, 201, 267 Dierkhising, C.B., 244, 256 Disability, 88 Discourse, 1, 264 Discourse analysis, 101, 264, 266 Discrimination, 1, 83, 89, 93, 261 Discriminatory, 223 Discriminatory act, 208, 267 Disembeddedness, 6 Displaced population, 199 Distributive social justice, 2 Dodd, W., 36 Doek, J., 25, 26 Doershuk, JJ.F., 175 Dominant ideologies, 268 Dos Santos, T., 195 Doyel, D.E., 174, 180 Drori, G.S., 117 Dubet, F., 89 Dunbar-Ortiz, R., 175 Dunkwu, K., 260 Dupree, A.S., 58

275 E Ecological debt, 189 Economic inequality, 59 Economic justice, 2 Efling, 220 Egalitarian spirit, 9 Einwohner, R., 7 Ekwurzel, B., 198 Elken, M., 47, 48 Emancipatory conception, 203 Empowerment, 163 English Language Teaching Support Project (ELTSP), 37 Ensign, J., 152 Environmental debt, 190 Equality, 1, 55, 59, 60, 62, 79, 83, 269 Equity, 55, 60, 62, 79 Estevão, C.V., 56 Ethnic inequalities, 105 Ethnicity, 1, 268 European Convention on Human Rights, 73 European Council, 84 European Social Charter, 74 European Union, 55, 63, 64, 75–79 Evans, G.W., 155 Evans, M., 120 Excluded children, 83 Exploitation of children, 246 F Family dysfunction, 137 Family homelessness, 149 Farinosi, F., 231 Farragher, B., 128 Felitti, V.J., 126 Feminist critique of motherhood, 108 Ferguson, T.J., 183 Ferréol, G., 98 Fforde, C., 176 Fideler, E.F., 216 First Nations, 170 Fisher, J., 125 Fishman, S., 103 Fitzpatrick, S., 145, 163 Fleming, S., 163 Flew, A., 3 Flovenz, B., 214 Fontaine, A.S., 212 Forced migration, 189 Forman, L., 121 Foucault, M., 264 Fowler, P.J., 153 France, 84

276 Francis, P., 62 Fraser, N., 7, 9, 232, 233 Fredvang, M., 208, 220 Freedom, 1 Freeman, M., 20 French intercultural society, 265 Friesen, 140 Fritz, J.M., 267 Furlong, W.J., 178 G Gagne, P., 7 Galabawa, J.C.J., 38 Gardner, G., 197 Gender, 268 Gender equality, 223 Geronimus, A.T., 103 Gewirtz, S., 260 Giddens, A., 6 Gilad, M., 127 Gilio-Whitaker, D., 175 Global challenges, 137 Global communications, 130 Global Gender Gap Report, 212 Global homelessness, 145, 150 Global impact, 189 Global inequality, 261, 265 Globalization, 1, 13, 115 Global justice, 230, 238 Global neoliberalism, 232 Global social justice, 7 Global water justice, 238, 267 Global youth homelessness, 137 Gnecco, C., 170, 183 Gomez Garza, R., 193, 267 Goodale, M., 174, 175, 178 Goodall, J., 61 Goodlad, R., 163 Gordon, D.B., 117 Graddol, D., 41 Graff, G., 125 Greaney, M., 4 Greene, M., 3 Greenhouse gas emissions, 196 Green, K., 117 Green, W., 175 Greenwood, M., 182 Griffiths, M., 260 Grimes, D.A., 106 Guerraoui, Z., 91, 92 Gunder Frank, A., 193 Gunnarsson, O.T., 215 Gupta, J., 234

Index H Haber, A.F., 170 Halfon, N., 127 Hall, E.T., 90 Hamad, R., 151 Hamers, J., 94 Hanna, K., 29 Harris, L., 231 Harrison, B., 116 Harrison, J, 30 Hart, C., 262 Hart, C.S., 268 Hartman, R.P., 174, 175 Hassell, I., 29 Hayek, F., 260 Healthcare, 115 Hebb, B., 127 Heck, S., 61 Heede, R., 197 Hegarty, S., 88 Hegemonic economies, 189, 197 Heller, A., 63 Helliwell, J.F., 212 Henkens, K., 211, 221 Henley, M., 104 Hernández, C., 170 Herring, F.P., 268 Hess, M., 220, 221 Highet, M.J., 170 Hill, D.L., 182 Hillman, A., 8 Hiltzik, M., 232 Historical compensation, 189 Historical reparation policies, 189 Hoffman, S., 30 Homeless children, 149 Homelessness, 137–139, 141, 146, 147, 151, 152, 155, 156, 158, 160, 161, 163, 266 Hore, B., 163 Hudson, C., 116, 147, 159 Huggins, C., 153 Hughes, K., 126 Humanist perspective, 263 Humanitarian catastrophe, 203, 267 Human rights, 1, 3, 4, 13, 19, 55, 59, 60, 62, 63, 65, 79, 101, 107, 112, 115, 121, 130, 138, 141, 145, 152, 169, 174, 183, 189, 201, 203, 235, 264, 265, 267 Human rights discourse, 60 Human rights education, 1, 268 Human rights ideology, 267 Human rights of children, 268 Human rights policy documents, 1 Human rights violations, 1, 62

Index Humansim, 263–264 Human trafficking, 255 Human-water relationship, 232 Hunger, 138 Hussain, W., 119 Hyde, J., 7 I Iceland, 212 Identity, 83, 95, 98 Ideology, 1, 13, 19, 130, 140, 264, 268 Illegal immigration, 189 Imperious migration, 189 Inclusion, 230 Inclusive education, 83, 98, 265 Inclusive environment, 2 Incommensurability, 230, 237, 238, 268 Indians, 170 Indigenous archaeology, 177, 184 Indigenous communities, 183, 184 Indigenous human rights, 170 Indigenous knowledge, 184 Indigenous people, 169, 170, 175, 184 Indigenous rights, 184 Inequalities in education, 261 Inequality, 1, 9, 59, 62, 194, 261, 263 Institute for Global Homelessness, 151 Institutionalized racism, 105 Integration, 91 Interagency Archaeological Salvage Program, 174 Intercultural society, 84 Interculturation, 91 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 143 International Covenant on Economic, Social and Cultural Rights, 68, 142 International Labor Organization (ILO), 55, 64, 69, 74 International Save the Children Alliance, 25 International Sociological Association, 222 J Jackson-Jacobs, C., 7 Jackson Nakazawa, D., 127 Jackson, S., 233 Jahoda, G., 91 James, A., 19 James, J., 117 Jebb, E., 13–17 Jenks, C., 19

277 Jimenez, T.R., 7 Jones, A., 163 Jucquois, G., 98 Justice, 1 K Kalifornsky, P., 181 Kamali Deghan, S., 231 Kammerer, N., 7 Kant, I., 2, 3 Karabanow, J., 7 Katrina hurricane, 118 Kauder, B., 4 Kaushik, A., 126 Kay, 140 Kelso, L., 2, 4 Kezelman, C., 128 Khan, N., 266 Kilkelly, U., 25 Kim, M., 170 Kingsley, P., 200 Kingston, L.N., 122 King, T.F., 181 Kiswahili, 36, 40 Klassen, T.R., 210, 211 Kolb, D., 263 Kolodny, A., 171 Korczak, J., 13, 14, 16, 17 Ko, S.J., 128 Krasinski, K., 267 Krekula, C., 223 Krewer, B., 91 Krumholz, S., 122 Kuhn, T., 6, 156 Kumari Rigaud, K., 199 Kuo, G., 154 Kyckelhahn, T., 246 L Lalonde, C.E., 182 Language education, 35 Language of instruction, 35, 51 Latin America, 28 Learning disabilities, 126 Leckie, S., 153 Lee, J., 231 LeMay, C., 118 Leonard, S., 105 Levinas, E., 91 Levine, P.A., 120, 125, 127 Levine, R., 117 Liefaard, T., 25, 26

Index

278 Lie, R.K., 121 Lindblom, P.-Å., 48 Lipari, R.N., 127 Lochak, D., 84 Luna, Z., 104, 111, 112 Lundy, L., 25 Lwaitama, A.F., 36 M MacDonald, F., 5 Macleod, C., 20 Macready, J.D., 20 Macron, E., 86 Maddison, A., 192 Magnason, A.S., 216 Mago, V.K., 153 Maioni, A., 122 Majhanovich, S., 3, 6 Mandatory retirement, 208, 216, 223, 267 Mandatory retirement ages, 213, 218 Mandatory retirement policy, 220, 267 Manglerud School, 45 Marginalized groups, 5 Marketisation, 9, 261 Marketisation in education, 261 Martínez Alier, J., 190 Martin, R., 181 Marx, K., 195 Maternal health, 101 Maternal mortality, 101 Maternal mortality rates, 108 Matthews, D., 197 Mauviel, G., 90 Mayberry, L.S., 155 McKay, G.A., 175 McNiven, I.J., 177, 183 Means, B.K., 174 Mental illness, 138 Merali, N., 163 Merck, A., 126 Metraux, S., 157 Metz, 106 Meunier, O., 85 Midgley, J., 5 Migrant children, 95 Migration movements, 189 Migratory debt, 189, 191, 194 Migratory movements, 203, 267 Milanovic, B., 261 Millennium Alliance for Humanity and the Biosphere (MAHB), 154 Millennium Development Goals (MDG), 122

Miller, J., 4 Mill, J.S., 3 Milne, B., 14 Milovanovic, D., 4 Misiedjan, D., 234 Montessori, M., 13, 14, 17 Mooney, D., 163 Moral behaviour, 264 Moral duty, 3 Moral education, 1 Moral philosophy, 2 Morens, D.M., 118 Moro, M.-R., 93, 95 Mortensen, A., 160 Morton, C., 104, 105 Motherhood, 101 Mulders, J.O., 211 Mulley, C., 24 Multilingualism, 93 N Naegele, L., 220, 221 Nagel, J., 183 Narula, R., 117 NASA, 118 National Association for Senior Citizens in Iceland, 222 National Coalition for the Homeless, 155 National Register of Historic Places (NRHP), 181 Native American Graves Protection and Repatriation Act, 177 Native Americans, 170 Navajo Tribal Museum, 174 Nayar, J., 232, 234, 235, 237 New Zealand, 29 Niezen, R., 183 Nikander, P., 223 Nilan, D., 147, 159 Nixon, S., 121 Norman, E., 231 Norway, 42 Norwegian Agency for Development Cooperation (NORAD), 38 Norwegian education, 46 Norwegian higher education, 42 Norwegian language policy, 43 Noticias, 56 Novak, M., 5, 260 Nussbaum, M., 260 Nussbaum, M.C., 57 Nyerere, J., 35–38, 51

Index O Observador, 60 Oexle, N., 125 Officer, A., 223 O’Halloran, K., 19 O’Neill, O., 20 Oparah, J.C., 104 Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC), 244 Organization for Economic Development and Cooperation (OECD), 222, 261 Ortiz-Ospina, E., 138, 146, 150, 158 Oslo International School (OIS), 44 Oxfam International, 8 Ozdowski, S., 268 P Panke, A., 152 Paradies, Y., 105 Paradigm change, 138 Paradigms, 156 Parker, P.L., 181 Parkhurst, N., 179 Peltier, 235, 237, 238 Perek-Bialas, J., 211 Perrin, A., 117 Peter, D., 181 Petersen-Perlman, J., 231 Petras, J., 196 Piketty, T., 194 Pinto, C., 69 Piore, M.J., 117 Pizarro, S.N., 78 Plato, 3 Pluralist democracy, 269 Policy reforms, 9 Pomeranz, K., 192 Porges, S.W., 125, 127 Pornography, 253 Porter, L.C., 127 Potrafke, N., 4 Poverty, 1, 138, 155 Prejudice, 1, 83, 223 Priest, N., 105 Principles of social justice, 1 Private Schools Act, 44 Privatization, 9, 46, 261 Progressivist perspective, 263 Proulx, T., 182

279 Prout, A., 19 Public health crisis, 101, 127 Public health ethics, 121 Q Quijano, A., 236 R Race, 112, 268 Racial disparities, 102, 109 Racial inequality, 107, 112 Racism, 101, 105, 106, 112 Racist theory, 90 Rainie, L., 119 Ranciere, J., 232 Rawls, J., 4, 5, 208 Recognitive social justice, 2 Reconstructionist perspective in education, 263 Rees, O., 29 Refugees, 138 Regnault, E., 84, 265 Reinert, E., 192 Religion, 268 Reproductive justice, 101 Retributive social justice, 2 Rezzoug, D., 93, 95 Richmond, C., 182 Richmond, C.A.M., 182 Riechmann, J., 197 Rigoni, I., 88 Rikowski, G., 260 Robertson, R., 6 Robinson, A., 230, 234–236, 238 Rodrigues, J.N., 61, 265 Roper, D.C., 174 Roser, M., 146, 158 Rosmini-Serbati, A., 3 Rosner, M., 138 Ross, L., 104 Roth, L.M., 104 Rousseau, J.J., 3, 17 Rubio, V., 110 Ruff Institute, 148 Ruff Institute of Global Homelessness, 148 Rugemalira, J.M., 36 Ruiz-Grossman, S., 140 Rule of law, 268 Ruriksdottir, H.R., 215 Rust, V., 3 Ryan, 5

Index

280 S Saami language, 43 Sabel, C.F., 117 Sakamoto, I., 7 Sakurai, M., 210 Sale of and trafficking in children, 253 Sam, D., 91 Sanctuary cities, 189 Santos, B., 191, 203 Save the Children Sweden, 25 Save the Children UK, 25 Schaeffer, R.K., 169 Schaepe, D.M., 181–183 Scholte, J.A., 58 Schooling in France, 83 School of Trust law of 2019, 88 School Refoundation law of 2013, 88 Schwach, V., 47, 48 Scott, G., 163 Seacrist, M., 104 Seager-Boss, F., 181, 267 Self-determination, 194 Self-esteem, 95, 98 Sellars, R.W., 171 Seneviratne, K., 153 Serre, G., 93 Sexual exploitation, 252 Sguissardi, V., 60 Sharlin, A., 6 Shinn, M., 155 Shonkoff, J.P., 126 Sigurðardottir, S.H., 216 Skutnabb-Kangas, T., 93 Smolin, D., 253 Snorradottir, A., 216 Social action, 1 Social cohesion, 55, 79 Social divisions, 35 Social equity, 63, 79, 268 Social inequality, 1, 55, 58, 60, 260, 262, 263, 268 Social injustice, 8, 61 Social justice, 1–5, 9, 35, 55, 58, 79, 83, 101, 115, 138, 162, 208, 223, 260, 261, 264, 265, 268 Social justice discourses, 1 Social justice education, 268 Social justice policies, 265 Socially valued commodities, 8 Social stratification, 1, 9, 55, 58, 261, 268 Solinger, R., 104 Solloway, M., 116, 127, 266 Spencer, J.W., 7

Spolsky, B., 45 Stahl, R., 266 St, Arnault, D., 163 Steger, M., 6 Steinmo, S., 122 Stereotypes, 140 Stereotyping, 105 Stewart, M., 152 Stigma, 115 Stora, B., 90 Stratified societies, 9, 269 Stravropoulos, R., 128 Structural poverty, 189 Sub-Saharan Africa, 28 Swan, J., 123 Swanson, A., 127 Swift, 223 Systemic racism, 111 T Tanzania, 37, 40 Tassy, G., 117 Taubenberge, J.K., 118 Teaching of Languages and Cultures of Origin (ELCO), 87 Tesch-Romer, C., 221, 223 The United Nations Water Conference, 231 Thomas, P., 46, 47 Thompson, R.L., 120 Tibbets, P., 118 Tibbitts, F., 264 Todd, E., 84 Todres, J., 19, 22, 26, 31 Tolerance, 1 Tormey, S., 230, 234–236, 238 Tortajada, C., 231 Totalitarian regimes, 268 Traditional cultural materials, 174 Trafficking of children, 246 Transnational companies, 189 Trauma, 115, 130 Tree, 59 Trigger, B.G., 170 Troyna, B., 260 Truong, M., 105 Tsunami in Fukushima, 118 Turnbull, E., 208 Turok-Squire, R., 267 U UNESCO Salamanca Declaration, 88

Index UNICEF, 18, 24, 28, 30 UNICEF Innocenti Research Centre, 25 United Nation Hugh Commission on Human Rights, 23 United Nations (UN), 1, 55, 64, 65, 69, 115, 124, 138, 152, 158, 230, 231, 238, 268 United Nations Convention on the Rights of the Child (UNCRC), 13, 138 United Nations’ Declaration of the Rights of the Child, 16 United Nations Department of Economic and Social Affairs, 232 United Nations Economic and Social Council Report, 246 United Nations Economic Commission for Europe (UNECE), 208, 210 United Nations Educational Scientific and Cultural Organization (UNESCO), 1, 20 United Nations Environment Programme (UNEP), 198, 231 United Nations Human Development Report, 59 Universal Declaration of Human Rights (UDHR), 14, 20, 21, 23, 59, 64, 141 UN Millennium Development Goals, 130 UN’s Open-Ended Working Group on Ageing, 221 USA, 189 U.S. Black women, 105 V Valdez, N., 105 Values, 1, 83 Van der Kolk, B.A., 125 Van Horn, S.L., 127 van Solinge, H., 211, 221 Van Zanten, A., 83 Veltmeyer, H., 196 Verhellen, E., 21, 22 Veugelers, W., 263 Vieira, O.V., 58, 60 Vincent, C., 260 Virtue, 260 Vissing, Y., 5, 147–149, 159, 160, 266, 268, 269 Vitebsky, P., 125 Vogel, M., 127 Vuzo, M., 36, 40

281 W Wallace, W., 6 Wallerstein, I., 191 Wang, J.Z., 152 Warnock, M., 88 Wasserman, J., 7 Water governance, 232 Water justice, 231 Watkins, J., 175 Watson, J., 163 Watts, J., 122 Weber, T., 57 Wedel, W.R., 174 Weiler, K., 261 Weinthal, E., 231 Wijesuriya, G., 181 Wildsmith, E.M., 103 Wilinska, M., 223 Williams, D., 110 Williams, J., 29, 30, 154, 265 Williamson, J., 192, 194, 196 Williams, R., 210 Willis, C.C., 220, 223 Wobst, H.M., 177, 181, 182 Woll, L., 24 Women, Peace and Security Index 2021/22, 212 Wong, R., 233 World Bank, 36, 51, 56, 198 World Happiness Report, 212 World Health Organization (WHO), 102, 145, 210, 220, 222 World Inequality Report, 8 World Justice Project, 138 Worldometer, 117 World-system, 191 World-systems model, 6 Y Yahya-Othman, S., 36 Yale University, 151 Yang, Y., 210, 211 Young Cho, 251 Youth homelessness, 164, 266 Z Zajda, J., 3, 5, 6, 9, 261, 263–265, 268 Zajda, R., 264 Zysman, M., 116