When Sarah McShane ’21, who organized this year’s Fordham International Law Journal symposium, read about Black Lives Matter (BLM) protests taking place in countries like Australia and Germany while Americans were also protesting across the nation, she began to wonder if the roots of those protests were similar to those in the U.S. This partially inspired the journal’s editors to focus this year’s spring symposium on the manifestation of the BLM movement, as well issues of racial and ethnic discrimination around the globe.
On Feb. 12, the journal invited judges, scholars, and activists—who are well-versed in civil and human rights issues in a global context—to discuss particular issues in foreign jurisdictions and proposals for solutions in their respective countries.
#KashmiriLivesMatter: Discussing the Ongoing Conflict in Kashmir
After outlining the decades-long history of discrimination within India, attorney and human rights activist Sehla Ashai noted the role that BLM protests have played in Kashmir’s current events. “I think it’s been an important movement that has spurred—at least my community in diaspora and my community in Kashmir—to reckon with the anti-Blackness that’s endemic to our communities,” Ashai said. “To basically examine it and fight against it, and to really unlearn a lot of behaviors and to work towards a genuine and powerful understanding of what solidarity looks like.”
Human rights attorney and researcher Mrinal Sharma argued that the laws exceed their powers after explaining Kashmir’s legal framework. The only way to move forward, she said, is to repeal the laws and better understand underlying social, economic, and political problems. “This idea is sustained on the designation of Kashmir as a disturbed area, even though a state of emergency was not invoked in the region before applying these laws,” Sharma said. “This designation also does not match the Indian government’s presentation of the armed conflict in Kashmir. It is merely an internal law and order problem … specifically while addressing the human rights concerns of Kashmiri people.”
Georgetown University Professor Arjun Sethi also spoke to how these laws, as well as other bills and Hindu nationalism, have created a culture of impunity. He argued that engagement with government officials is not enough to achieve progress. “In addition to talking about global solidarity and engaging with our elected officials—which is critical at the local, state, and national levels—we need all of these different sectors [like philanthropy, technology, and journalism], who have ignored India for so long, to really reengage and double down,” said Sethi.
Colonialism and Constitutionalism in Africa
Dr. Willy Mutunga, retired chief justice of Kenya and president of the Supreme Court of Kenya, and Kofi Abotsi, dean of University of Professional Studies, Accra, had a candid conversation with panel moderator and Archibald R. Murray Professor of Law Tanya K. Hernández about the rule of law and the obstacles that have affected enforcement in Africa.
“One of the enabling statutes in Kenya, which is the Supreme Court Act of 2011, says very clearly that when you interpret the constitution, you have to look at the history, economics, theological or sociological basis of that provision,” Justice Mutunga explained, noting that the framework of Kenya’s 2010 constitution borrowed heavily from the constitutions of South Africa, Colombia, and India. “We are now engaged in at least trying to claw back at the pillars of that particular constitution.”
To follow up on Justice Mutunga’s point, Abotsi referred to Ghana’s constitution—speaking specifically to the chapter dealing with the Directive Principles of State Policy, which establishes blueprints for national aspirations. He said one of its main goals is to foster unity, but that the local governments have been “compelled to undertake programs, projects, and policies that are designed to create a sense of oneness.” Additionally, previous colonial experiences have created deep-seated animosities between some tribes today.
“Ghana did not exist until 1957, and the Gold Coast colony did not exist until the 19th century. So, as far as Ghana is concerned, it still remains an artificial construct and is still a work in progress,” Abotsi explained through a historical context.
“[The constitution] also compels balanced regional developments, so that you don’t have all the resources concentrated in one part of Ghana [with]everybody else excluded,” Abotsi added. “Ghana has a big historical divide, and that divide is why we have the north and the south. The global north is normally richer and the global south is poorer. But, in the case of Ghana, the south is richer and the north is poorer.”
Exploring Racial and Ethnic Discrimination in Europe
Fordham Law Professor and Director of the Center on Race, Law and Justice Bennett Capers moderated a panel that closely examined racial and ethnic discrimination in Europe and how the BLM movement has played a role in citizens’ expression against policies.
“What we’ve seen in the last summer with the global dimension of the Black Lives Matter protests were also the largest anti-racist protests in Europe and in history,” said Dr. Vanessa-Eileen Thompson, postdoctoral researcher and lecturer in comparative social and cultural anthropology at European University Viadrina. “In the European context, various European countries always tend to place racism either outside of the country or back into history. So, it’s this spatial-temporal dimension of neglecting racism as a structural problem.”
From a British perspective, Oluwaseun Matiluko, journalist and law student at the University of Oxford, added that Black people are more disproportionately incarcerated in the United Kingdom than in the United States. “These protests that we saw in the U.K. in 2020 came about because people were very angry about what happened in America. But [they]also were very angry about the inequalities they were seeing in the U.K. too,” Matiluko explained. “In this way, the refrain of Black Lives Matter enabled these protesters to link the international with the national.”
The panelists also discussed European countries’ reluctance to collect and disaggregate data by race. “You can’t really track what types of discrimination are happening in different sectors, like housing or employment, because there isn’t data being collected around race as a category,” said Dr. Eddie Bruce Jones, deputy dean of the School of Law and head of the Department of Law at Birkbeck College, with Germany in mind.
“Then you have countries, like France, where there is a prohibition on collecting data with some exceptions,” Jones continued. “So, it’s not a complete ban, but the exceptions are so narrow that it becomes very difficult to actually collect data in any reasonable way that’s going to give you a sense that there are patterns of discrimination.”