Category Archives: INTERNATIONAL LAW

Are we at war with Russia?

Not yet. The NATO treaty provides:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs … will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Article 5. But what is an “armed attack”? The protocol admitting Turkey to the pact says:

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack … [1] on the territory of Turkey, … [2] on the forces, vessels, or aircraft of any of the Parties, when in or over these territories…

But neither the protocol nor the treaty define “armed attack.” The Russian warplane did not not fire on Turkish forces but it did violate Turkish airspace and it did so despite many earlier protests by Turkey at similar incursions. The question is then whether the violation of airspace is an “armed attack.”

Like nearly every term in international law, the term “armed attack” has no agreed-upon definition. Not every use of force constitutes an armed attack. As the International Court of Justice has noted,  “As regards certain particular aspects of the principle in question, it will be necessary to distinguish the most grave forms of the use of force (those constituting an armed attack) from other less grave forms.” Yet it continues “Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State.” Isn’t sending a military jet a “use of force” that violates Turkey’s boundaries? On the other hand, the jet did not drop bombs on Turkey or try to, as far as we know. For this reason, I suspect that nearly everyone would regard the incursion as a violation of international law but not as an armed attack per se. Meanwhile, Turkey’s response would be deemed a lawful countermeasure and not itself an act of war.

So we are not at war with Russia, but what if Russia retaliates by bombing Turkey? Article 5 supplies wiggle room. Each of the other NATO members is required only to take “such action as it deems necessary” which may, but need not, include the use of armed force. That is the law. Politically, the story may be different.

What’s the best use for Human Rights Watch’s budget?

For the past few years, I’ve been flogging the idea that money spent to enforce human rights would be more productively devoted to development aid. I make this argument in a book; and I have developed it in an article, just posted on SSRN, which argues that development agencies should not consider themselves constrained by human rights law or required to “promote” human rights, as this idea is sometimes put.

The argument is based on the premise that the “human rights regime” (which is hard to define in any event) does not actually improve the well-being of people in poor (or rich) countries. It’s too hard for outsiders–well-meaning NGOs and more ambiguously motivated governments–to figure out how to advance human rights in foreign countries, or even what that means. There is a huge amount of disagreement about what rights mean and require, and how priorities should be established in a world of limited budgets and attention spans.

A problem with my argument has always been that the same thing can be said about development aid. Although the picture is not as bleak as the human rights picture is, many economists don’t think that development aid does much good. The reasons are similar to the reason why human rights enforcement does not do much good: we (on the outside) often find ourselves flummoxed by foreign cultures, institutions, and values, which overturn the best plans.

Yet here is a paper by David McKenzie that reports the results of a randomized control trial where $36 million was randomly assigned to small businesses in Nigeria that applied for grants in a business-plan competition and reached the semi-final round. The winners received grants of around $50,000. Over the next several years, they hired many more people , innovated more, and earned larger profits than the control group. By stimulating economic activity, the donations did more than just transfer a fixed sum of money to people in a poor country.

Meanwhile, HRW’s budget was $65 million as of 2013. It’s an article of faith that HRW does good, but there is no evidence whatsoever. HRW’s donors should use this paper as an opportunity to exercise effective altruism and redirect their donations accordingly.

What does the collapse of European integration mean for international law?

The flood of refugees into Europe–which will likely end badly–shows once again the inability of European institutions to handle a crisis. The source of the problem is the abolition of border controls without the creation of a pan-European homeland security agency and other institutions for allocating resources and sharing burdens. Europeans wanted the convenience of a borderless continent without the risks to national sovereignty that would have resulted from the creation of an agency with coercive powers. The problem parallels the debt crisis, a result of the abolition of currency borders without the creation of a pan-European fiscal and banking authority. European integration, once seen as a juggernaut and a model for the world, has been in crisis since 2009. I have more on this in Slate.

But the question I want to ask here is what does this chain of crises mean for international law. Back in 2000, law professor Peter Spiro wrote a piece in Foreign Affairs criticizing a tiny gaggle of American international law academics who expressed doubts about what Spiro saw as the inevitable triumph of international legal norms. These “New Sovereigntists” hold thee positions:

The first impugns the content of the emerging international legal order as vague and illegitimately intrusive on domestic affairs. The second condemns the international lawmaking process as unaccountable and its results as unenforceable. Finally, New Sovereigntism assumes that the United States can opt out of international regimes as a matter of power, legal right, and constitutional duty.

While these New Sovereigntists were writing about the United States, not Europe, Europeans might be forgiven for regretting that they never took them seriously. Intrusion on domestic affairs? That’s what Eastern European countries think about refugee policy and the Southern countries about austerity. Unaccountable and unenforceable? That would include laws that were supposed to stop countries from accumulating too much debt and from allowing migrants to travel outside the country of arrival. The happiest countries are those which opted out of the eurozone, and the UK must be feeling pretty pleased that it’s not in the Schengen area. Sovereignty might have slumbered for a few post-Cold War years, but it is returning with a vengeance.

The UN Human Rights Council: “all the cops are criminals…”

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Here’s a fun chart, put together by my colleague Adam Chilton. The blue dots show the average human rights performance of all UN members. The red dots show the human rights performance of the members of the special UN human rights body that is supposed to monitor and enforce human rights law. Yes, the members of the human rights body do a lot worse than the average country. Why? Well, it makes sense if you are a human rights violator to lobby for a position on the human rights body, where you can protect yourself from criticism by forming coalitions with other abusers. (The scores for each country are from Chris Fariss’ data set.)

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But there is hope for non-skeptics. The UN abolished the much-despised UN Commission on Human Rights and replaced it with the UN Human Rights Council in 2006, and made some effort to improve the membership. As both charts show, the human rights performance of the members increased noticeably. Still, not as good as the average country.

International Water Law: Egypt, Ethiopia, and the Nile

A guest post by Daniel Abebe:

To many people, water law might not sound like the most exciting area of international law but it is becoming an increasingly important issue. The dispute between China on one side, and Vietnam, Laos, Cambodia, and Thailand on the other, over the Mekong River affects access to water for millions of people in Southeast Asia. In more volatile parts of the world, Iraq, Syria, and Turkey have not agreed on dividing the Tigris and Euphrates Rivers, while the Jordan River is subject to dispute among various countries in the Middle East. Perhaps most prominently, Egypt, Ethiopia, Sudan, and other countries in the Nile River Basin, have failed to agree on the equitable division of the world’s longest river, the Nile. As populations grow and economic development demands greater access to water resources, these disputes will likely become more intractable.

But just a few days ago, the leaders of Egypt, Ethiopia, and Sudan signed an initial agreement in which they pledged to better share the Nile River’s waters and, according to Egyptian President Al-Sisi, realize “mutual gains for everyone and avoid damage to any party.” Although the key details have not been negotiated, the impetus for the agreement was Ethiopia’s decision to construct the Great Ethiopian Renaissance Dam on the Blue Nile, the Nile’s largest and most important tributary originating in Lake Tana, Ethiopia. In Egypt, Ethiopia, and the Nile, The Economics of International Water Law, I analyze the dispute, describing the complex legal, political, economic, and national security issues that have made reaching a comprehensive agreement on the Nile between Egypt and Ethiopia so difficult. The importance of the Nile to both countries is clear. For example, since the Great Ethiopian Renaissance Dam has the potential to reduce the Nile’s downstream water volume — and the Nile provides 96% of Egypt’s freshwater and the Nile Valley hosts 98% of Egypt’s 85 million people — Egypt had been vehemently opposed to its construction. Ethiopia, on the other hand, wants to exploit its water resources — Ethiopia provides over 85 percent of the Nile’s volume but utilizes less than 1 percent of the Blue Nile — to provide hydro-electric power to a growing population. Any final agreement would not only have to delineate a mutually agreeable division of the Nile’s waters, but also include mechanisms for implementation, monitoring, enforcement, and compensation for violations between two non-democracies with a long history of mistrust. In short, stay tuned. If you want to learn more about the dispute between Egypt and Ethiopia over the Nile or potential approaches to resolving it, the paper is available on ssrn.

Visiting International Organizations & the Mechanisms of International Law

31382A guest post by Adam Chilton:

There are three pillars of international law: international human rights law, international humanitarian law (also know as the laws of war), and international economic law. Over the last week, I tagged along with a group of overachieving University of Chicago Law School students who decided to spend their spring break in Geneva visiting the international organizations most directly associated with each of these three branches of international law. When visiting these institutions, I was struck by how clearly each of their approaches to hosting visitors illustrates the mechanisms that scholars argue they use to change countries’ behavior.

The United Nations Human Rights Council (“HRC”) is a committee made up of 47 countries that tries to monitor the human rights practices of all countries that are members of the UN. The HRC meets in a large assembly room in the UN building in Geneva. The HRC’s room has seating areas for both the press and the public to watch their meetings, and webcasts all of the proceedings live. When we met with the HRC spokesman, he spoke about how social media engagement is one of the primary ways the Committee accomplishes its goals. The message was clear that HRC’s goal is to raise awareness of human rights abuses by engaging the public.

The International Committee of the Red Cross (“ICRC”) is the international organization that tries to monitor and promote compliance with International Humanitarian Law. Similar to the HRC, the ICRC headquarters in Geneva have public-facing spaces designed to make the work performed by the ICRC accessible to visitors. This includes a museum that documents the work of the ICRC and that outlines the major violations of the laws of war over the last century. The ICRC also runs courses for visitors on the basics of International Humanitarian Law. The ICRC’s goal is to clarify what is required of states during war, and to make the rules and violations well known.

The World Trade Organization (“WTO”) is an international organization that administers the international trading system. Unlike the other two organizations, the WTO does not offer daily tours or have an elaborate welcome center. Instead, visiting the WTO is a bit like visiting a law firm. You have to check in at a reception desk, and wait for an official to escort you into the building. We met with five WTO officials over two days. The officials were incredibly generous with their time, but I found it notable that not one discussed the importance of raising public awareness or how they utilize social media. Instead, the constant message was that the WTO system is increasingly weighed down by its own success. In short, too many countries are using the WTO dispute resolution system to adjudicate trade disputes and the organization is stretched thin trying to handle all of the cases.

For all three institutions, the way they engage the public reflects the mechanisms that scholars have agued that these bodies of law use to influence state behavior: international human rights law tries to raise awareness of abuses to create domestic political pressure for countries to improve their rights practices; international humanitarian law tries to clarify the obligations of states during war to create a common understanding of what practices are acceptable; and international economic law channels disputes into legal processes that are then enforced by reciprocal suspension of economic concessions.

The Doctrinal Paradox & International Investment Law

A guest post by Adam Chilton

When multi-member courts have to decide cases that involve multiple connected issues, the outcome of the case can change based on how the court counts the votes. This well documented phenomenon is known as the Doctrinal Paradox. Although it’s possible to explain the paradox more formally, it can easily be explained with a simple example borrowed from the philosopher Philip Pettit.

Imagine that a three-judge panel has to decide liability in a torts case. To determine whether there is liability, imagine that the judges first have to decide whether the defendant caused the harm, and that they then have to decide whether the defendant had a duty of care. The judges’ votes on these two issues will then determine whether they think there is liability. Now imagine that the judges vote in the following way:

Issue 1:

Cause of Harm?

Issue 2:

Duty of Care?

Outcome:

Liable?

Judge A

Yes

Yes

Yes

Judge B

Yes

No

No

Judge C

No

Yes

No

Outcome

2-1

2-1

1-2

In this case, there are two votes in favor of each sub-issue, but only one judge that thinks the defendant should be found liable. If the court counts the votes issue by issue, the defendant would be liable (this is known as “issue-based voting”). If the court instead goes with the overall votes of the judges, the defendant would not be liable (this is known as “outcome-based voting”). In these scenarios, how the case is resolved is entirely dependent on which aggregation method the court uses to count the votes.

A few years ago, Dustin Tingley and I wrote a paper explaining that the conditions for the doctrinal paradox are increasingly present in international adjudication generally, and that this problem is likely to arise during international investment arbitration specifically. Although we were pretty confident that this was an issue that investment arbitrators would eventually have to resolve, we weren’t sure which aggregation rule would prevail.

Dustin and I were just notified that a doctrinal paradox has recently occurred in an international investment arbitration, and that our analysis was brought up in the proceedings. In Alapli Elektrik B.V. v. Republic of Turkey, the arbitrators had to decide whether they had jurisdiction to hear the case. The facts of the dispute are complicated, but essentially there were multiple arguments made by the defendant for why the panel did not have jurisdiction to resolve the case. One of the arbitrators disagreed with every one of the defendant’s jurisdiction arguments, and thus thought that the panel had jurisdiction. The other two arbitrators concluded that the panel did not have jurisdiction to hear the case, but they reached that conclusion for different reasons. Given this distribution of votes, issue-based voting would result in a finding that the panel had jurisdiction, but outcome-based voting would result in a finding against jurisdiction.

Alapli Elektrik B.V. v. Republic of Turkey demonstrates that the choice of aggregation rule can change the outcome of international adjudications.  Ultimately, the panel elected to go with outcome-based voting (a decision that was affirmed during an annulment proceeding), but this isn’t binding on all future international courts or even investment arbitrations. There are principled reasons for selecting either aggregation rule, and it might be worth the time of scholars to debate which method is most appropriate for international adjudications. If you want to learn more, our paper is on SSRN and the annulment decision is publicly available here.

The Influence of History on Human Rights

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A joint post by Adam Chilton & Eric Posner:

In a new working paper–The Influence of History on States’ Compliance with Human Rights Obligationswe argue that scholars studying human rights could learn a lot from development economics.

There are considerable differences in countries’ levels of respect for human rights. Human rights scholars trying to explain these differences have focused on current variables. These current variables include things like whether countries have ratified international agreements or included specific protections in their constitutions.

There are also considerable differences in countries’ levels of wealth. Development economists trying to explain these differences have focused on the influence of history. For example, development economists have examined the influence of geographic factors, technological adoption hundreds of years ago, and the development of high-quality institutions centuries ago on countries’ current GDP.

If the legacy of history is a powerful predictor of economic differences between countries, it follows that history should explain the differences in countries’ respect for human rights. The graphs above illustrate this point. The graph on the left plots countries based on their latitude and GDP Per Capita in 2010. As the graph clearly shows, there is a strong,  positive relationship between these two variables: countries further from the equator are wealthier. The graph on the right plots countries based on the number of years since they adopted women’s suffrage and their current levels of women’s economic rights (this data is from the widely used CIRI human rights dataset). Once again, there is a strong, positive relationship: the same countries that respected women’s rights a hundred years ago respect women’s rights today.

In our paper, we develop this argument by testing the relationship between historical variables used in the development literature and current human rights practices. The results provides evidence suggesting that a number of the variables from development economics are powerful predictors of respect for human rights. If you’d like to learn more about our argument, method, or results, the paper is now available on SSRN.

Libya, humanitarian military intervention, and the “responsibility to protect”

From Thomas G. Weiss, RtoP Alive and Well after Libya, Ethics and International Affairs (2011):

Perhaps Libya will make policy- and decision-makers realize that between 1999 and 2011 we witnessed not too much military intervention to protect human beings but rather not nearly enough. The international action against Libya was not about bombing for democracy, sending messages to Iran, implementing regime change, keeping oil prices low, or pursuing narrow interests. These may result from such action, but the dominant motivation for using military force was to protect civilians. A collateral benefit is that the (to date) encouraging nonviolent and democratic revolutions in Tunisia and Egypt may have greater traction. Now that the Arab world is no longer a democracy-free and human rights–free zone, Qaddafi’s “model” for repression will no longer be interpreted as an acceptable policy option by other autocratic regimes.

From the Economist, Jan. 10, 2015:

Meanwhile Libya’s ungoverned spaces are growing, and with some 6,000 km of border the country’s problems are hard to quarantine. Each month 10,000 migrants set sail for Europe. Libyan arms in the hands of groups allied to al-Qaeda in the Islamic Maghreb triggered the collapse of order in northern Mali two years ago; some of those who subsequently fought against the French there have now returned to Libya, where they are reportedly running jihadist training camps. On January 3rd, IS claimed to have extended its reach to Libya’s Sahara too, killing a dozen soldiers at a checkpoint on a jihadist transit route to the Sahel. The conflict is as likely to spread as to burn itself out.

Guest Post: Ukraine and Russia–You Break It, You Bought It

The following guest post comes from Joseph Blocher and Mitu Gulati, Duke Law School.

Let’s begin with a point of agreement: Ukraine’s financial condition is bad. Its currency is in free fall, its foreign hard currency reserves have collapsed, its economy is shrinking, and it is fighting a war. Absent a big IMF-EU bailout soon, Ukraine will default.

That $ 15-20 bn bailout that Ukraine needs, however, does not appear to be forthcoming.  There are many reasons for this, but a big one is probably that western politicians know that a large portion of Ukraine’s debts are owed to Russia—including a $3 bn bond debt that matures in 2015. In other words, bailing out Ukraine would effectively mean transferring funds to Vladimir Putin. The bailout will probably come eventually, but it will not be the full amount Ukraine needs to pay its creditors. In the meantime, how can Ukraine (a) make up for the shortfall, and (b) make the bailout more palatable to western taxpayers?

We suggest that Ukraine respond to the Russian debt claims by arguing that it is entitled to a set-off for Russia having taken large portions of its territory. This argument will likely to made before an English judge, since the $3 bn debt is governed by English law.

As we explain in our article, traditional international law essentially gives that English judge two extreme and unappealing options.  Either Ukraine had an exclusive right to determine Crimea’s fate regardless of the Crimeans’ wishes (the standard rule of territorial integrity), or Crimea was so egregiously oppressed that it had an exclusive right to determine its own fate (the principle of self-determination or remedial secession).

This is a disappointing menu of options, and seems particularly ill-suited to the Ukraine-Crimea-Russia crisis. We accept the idea of remedial secession, but it seems unlikely that Crimeans suffered the extreme humanitarian abuse necessary to justify it. And the traditional rule that nations can buy and sell regions as they see fit seems antiquated and in conflict with the right of self-determination that the UN Charter gives to “all peoples.”

There has to be an in-between category, one that covers situations where a region is systematically disfavored but not horribly. In this in-between scenario, where the people of a region are clearly denied equal rights and representation (a standard we borrow from the Charter), we suggest that those people should have a right to look for a better sovereign partner.  Further, the current sovereign should not be allowed to bar their exit. But, unlike in the scenario where the people are being abused so badly that they get to exit for free, there should be compensation owed to the former sovereign. Put another way, when a nation oppresses a region—albeit not egregiously—we would protect its sovereignty with a liability rule rather than a property rule. The “damages” due to the parent nation (in this case Ukraine) would be set by the market (i.e., bids from outside nations), with a right of appeal to an international body like the ICJ.

For purposes of illustration, let us assume that, prior to the Russian seizure of Crimea, Ukraine was denying representation and equal rights to the people of Crimea, but not (as some Russian sympathizers have suggested) oppressing them so severely as to trigger the right of remedial secession.  This would trigger our liability rule. In such a scenario, a transfer might be legitimate (if the Crimeans actually chose Russia from among all other suitors), but still not free. Ukraine must be compensated for the loss. And because Russia is Ukraine’s largest creditor, that compensation could take the form of an offset.  Alternatively, a stay could be issued on the ability of Russia to enforce its debt claims until the compensation amount is decided. The end result would be a legitimate, compensated transfer of territory that reduces the incentives for further violence on either side.

Of course, it is somewhat complicated to apply this rule post-hoc, since Russia has already taken Crimea, and no bidding ever occurred. But—assuming that Crimeans genuinely prefer to be part of Russia, which is a plausible but not uncontestable assumption—this is a challenge for the valuation, not for the application of the concept.

Going forward, we think that a market for sovereign control could help lessen the incentives for conflict. Under the current regime, Russia had every incentive to stir up trouble within Crimea, then justify military intervention so as to protect the Russian-sympathizing population there. But such intervention carried both risks and costs for Russia, which wants its acquisition to be recognized as legitimate under international law. A market would have given Russia an alternative: direct that military spending into a financial offer, which could lead to a voluntary and more legitimate cession. It is nowhere near a silver-bullet solution. But surely anything that provides some marginal deterrent to the next crisis is a step in the right direction.

The Supply Side of Compliance with the WTO

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A guest post by Rachel Brewster and Adam Chilton:

One of the primary questions studied by scholars of international law is whether countries comply with their international legal commitments. For example, scholars study whether countries comply with treaties they have signed that regulate the conduct of war or mandate the protection of human rights.

In most of these studies, the focus is on assessing whether the national government of a given country complies with some obligation. Of course, national governments are comprised of many institutions and, depending on the obligation, different institutions must take actions to comply with international law. A topic that has received little attention, however, is how the likelihood that the country will comply with international law is affected by which particular institution is required to take action on behalf of the national government.

In a recently published paper, Supplying Compliance: Why and When the United States Complies with WTO Rulings (available here), we argue that when the United States loses trade disputes, the particular domestic institution required to act is an important predictor of whether (and when) the U.S. will comply with the ruling. In fact, it was the most important factor.

Our paper empirically studies this topic by analyzing compliance with legal challenges brought against the United States at the World Trade Organization (WTO). The WTO allows members to bring disputes against other members that arguably aren’t complying with various trade agreements. Since the WTO was created twenty years ago, countries from around the world have brought over one hundred cases against the United States. In cases that the United States has lost, different branches of government have been required to take act to cure the violations. For example, the President responded to some complaints by issuing executive orders and Congress responded to other complaints by amending sections of the tax code.

The dataset we built for our project includes all WTO complaints made against the United States before 2012. For each complaint, we tracked down the policy changes that the United States made after the dispute. We also collected data on the characteristics of the countries that filed the complaints and the topics of the disputes. After controlling for a number of variables, we found that the United States was more likely to comply (and to comply more quickly) with a WTO decision when the executive alone could bring the country into compliance than when Congressional action was needed.

Although there are a number of confounding factors that may influence this result, as well as limits to the generalizability of our findings—both of which we discuss in the paper—we think these results suggest that having a complete understanding of compliance with international law requires paying more attention to the specific domestic institutions that are involved.

More on human rights clinics

Marco Simons writes a further response to my Chronicle article, in which I criticize university human rights programs and law school human rights clinics. One of my arguments was that the sponginess of human rights law allows it to be used by clinical professors to rationalize political activism. I did not say that all projects undertaken by human rights clinics are worthless, but I did express skepticism about many of them, which seemed not to teach students legal skills or advance any legitimate public goal.

Simons argues that I’m wrong about this:

And I also know that at least some of my projects led to benefits for clients. One of the cases I worked on was Doe v. Karadzic, which later led to a $4.5 billion jury verdict in favor of survivors of war crimes in Bosnia. Another major project was a Human Rights Watch report on corporal punishment in Kenyan schools, which was then rampant and highly abusive; two years later the Kenyan government banned the practice, and the ban was enshrined in the constitution in 2010. (Actually eliminating it remains a work in progress.)

Karadzic doesn’t have $4.5 billion or (as far as I know) any money. He’s languishing in jail in the Hague while awaiting the verdict in one of those endless trials that international courts specialize in (proceedings started in 2008). I doubt very much that Simons’ clients are going to recover a dime. Meanwhile, the Alien Tort Statute is on life support as judges gradually realize that these purely symbolic judgments are a huge waste of judicial resources.

I was curious about the Kenya example in light of Simons’ parenthetical and I found an article with the plaintive and revealing title, Why Are Kenyan Teachers Still Using Corporal Punishment Eight Years After a Ban on Corporal Punishment? The author surveyed Kenyan school teachers and here is the answer:

[The teachers] considered that the introduction of the ban on corporal punishment in schools had produced an increase in display of bad behaviour by pupils; for example, there was an increase in riots in schools leading to the closure of some schools. It seemed that once pupils knew corporal punishment had been banned they then started breaking school rules which they previously used to accept. The teachers were of the opinion that the use of corporal punishment was the most effective way of disciplining pupils and they argued that since corporal punishment inflicts pain, pupils avoided breaking school rules and displaying bad behaviour to avoid the punishment.

[As a result of the introduction of free primary school education, teachers] now had too many pupils in their classrooms which meant more children to attend to and more school books and papers to grade. In some schools, teachers who had been teaching a maximum of 40 pupils per classroom now had more than 100 pupils in each class. There was no more time to guide and counsel pupils let alone time for individual attention to any of the pupils. Teachers therefore saw corporal punishment as the only and most effective way of controlling the huge numbers of pupils in their classrooms.

The teachers also viewed corporal punishment as useful, especially in instances where a pupil was engaging in dangerous or negative behaviour that had to be stopped immediately for safety reasons.

The observation that parents had authorised teachers to use corporal punishment suggests parents were not informed about the negative effects of corporal punishment. Parents were encouraging teachers to break the law believing it was for their children’s own good.

Prosecution has been viewed as a last resort in instances where corporal punishment continues in schools despite prohibition (Committee on the Rights of the Child, 2006), but law enforcement can play a crucial role in protecting pupils from corporal punishment in schools. This, however, has not been the case in Kenya.

It’s hard to read this and not feel for the Kenyan teachers, who may be right or wrong but are certainly in a better position to understand how to maintain discipline in a 100-child classroom than a bunch of westerner busybodies with their psychological studies. I suspect that few Kenyan schools have armed guards and metal detectors, like in the U.S, or that Kenya has the resources to house troubled and violent children in special facilities as in the West.

Simons helped into existence a law that is not enforced, and that no one pays attention to, most likely because if people obeyed it the result would be riots and general chaos in Kenyan schools. Another victory for the human rights movement.