Upton-on-line: Special Christmas Veils Issue

In this issue

The festive season leads upton-on-line to focus on two sorts of veils (utterly unconnected except by name); the de-veiling of Moslem France and the problem of illegal fishing behind the the veil of flag state sovereignty. But before that, some reflections on New Zealand as fleetingly experienced through the veil of jet-lag, diesel emissions, hobbits on the rampage and over-priced pinot noir.

New Zealand through the ex-patriate veil

Upton-on-line returned recently and fleetingly to the gondwanan micro-continent and realised he had probably been away long enough to qualify as an expatriate. Such visits, not made for pleasure, are experienced through the life (and sleep) sapping veil of jet-lag. As such, opinions are probably jaundiced from the outset. But for what it's worth, the strong tastes that lingers like the bitter residue of immovane sleeping tablets are as follows;

But it can't be all bad can it? No of course not. Hear what comfortable words may still be said. New Zealand remains (or has become);

Upton-on-line has no doubt that summer holidays at the beach in Godzone remain very hard to beat. Best wishes to all readers patriate, ex-patriate or re-patriate. The next issue of upton-on-line will be in late January 2004 when the out-of-office reply notices have been switched off.

The Great French Veil Debate

There is nothing France does better than debate a complex philosophical issue. And when that issue spills over into every classroom in the country, it is bound to be a show stopper. As a species of uniquely French soul-searching, the great veil debate has lived up to expectations in every respect.

In terms of the average French citizen, it's all about whether girls and young women of Islamic confession should be able to turn up to class shrouded in a veil. You would have to be blind and deaf as well to miss the streak of xenophobia that smoulders at the bottom of this one. A race bought up to believe in its cultural exceptionalism doesn't take kindly to cultural interlopers in the nest. At the level of those who prop up bars or hold down bean bags in front of television, one suspects there's nothing very uplifting about the sentiments being expressed.

But at the level of Establishment, the debate has been stratospheric. As a typical étranger who has been known to be ever so slightly sceptical about the great Gallic exception, upton-on-line must now confess it: the sheer quality of the debate in the serious press leaves other countries for dead. Whatever one's view (and there are many out there to be influenced by), the thoughtfulness and seriousness with which the relationship between the State and the Individual has been addressed has been exemplary. For months now, France has been exposed to a stream of hugely literate, polished argumentation by people who have clearly thought long and hard about what it is to be a French citizen. The debate has been conducted with an articulateness that is unimaginable in New Zealand - and, frankly, in Britain if the declining state of its major dailies is anything to go by. Crowning it all has been the report of the so-called Stasi Commission on Laicité (secularity). Published verbatim in Le Monde, the report of this 20 member commission drawn from the ranks of politics and academia, provides a fascinating insight into the latest struggle for the soul of the Republic.

Being neutral - proactively and vigilantly

Why such a fuss about veils? In short they are a lightning rod for what is widely believed to be a challenge to the whole foundation of the French Republic. That in turn stems from the particular history of anti-clericalism in post-revolutionary France. Somehow, nothing seems to happen by accident or evolution in France. Rather, massive ratiocination and fierce debate seem to be the norm. France is a consciously self-created entity that is forever needing to reassure itself that all minds are on the job. And with so many (very bright) minds on the job there is bound to be conflict. Upton-on-line has often reflected on how easy and organic constitutional monarchies seem to be in comparison. The Crown just goes on and with it the illusion of gradual (and oftentimes accidental) evolution. For a nation rooted in the punishing rationalism of the Enlightenment this is unthinkable.

So when the French constitution pronounces the State to be an Etat laique (or secular state), it's the equivalent of mobilising some very big armaments. While the United Kingdom persists in having its Head of State, the Queen, do double duty as head of an Established Church which is happily ignored, France vigilantly patrols for any possible infringement of a strict demarcation between the State and religion of any kind. Religion is viewed as remaining eternally capable of fanning the fires of sectarian division. The result is that the French view of pluralism and tolerance is very distinct from that to which many countries (like New Zealand) are used. It's not enough for the State to be lethargically and benevolently neutral. Rather, it must be on stand-by to keep all-consuming passions as bay. The Stasi Commission defines this muscular and assertive neutrality in these terms:

"The secular state, guarantor of liberty of conscience, protects - beyond the freedom of religion and expression - the individual. It permits everyone to choose freely whether or not to adopt, change or renounce spiritual and religious beliefs. It guarantees that no one group or sect can impose on anyone, membership of or identification with any faith and especially not on the simple basis of birth. It protects each and every person against all forms of pressure, physical or moral, exerted in the name of any particular religious confession. The defence of the liberty of individual conscience against all forms of proselytism brings to fruition the notion of separation and neutrality embedded in the law of 1905 [which was supposed to put the issue to bed after torrid relations betwen church and state throughout the nineteenth century].

"This requirement applies, in the first place, in the school. Children must be able to learn and develop autonomy of judgement in a climate of complete equanimity [the word in fact used is sérénité - a term much used by French politicians and savants who believe themselves to be above the fray]. The State must prevent their minds being harassed by the violence and passions of society; without being a sterile place, the school risks failing in its educative mission if it simply reproduces the conflicts of society at large."

So the school is a laboratory of reason and critical dissection. Untroubled by the mirror glass of a propaganda filled world, students should inhabit a scholastic safe zone from which the powerful beam of enlightened thought can illuminate the shadowy world of emotions and allegiances. For the Stasi Commission there is simply no possibility that prosecuting this conception could itself be a form of indoctrination:

"If it [the school] was to limit itself to a narrow conception of neutrality with respect to religious or spiritual culture, it would contribute to misunderstandings on the part of students and leave them defenceless without the intellectual tools necessary to respond to the pressures and devices of politic-religious activists feed on just such ignorance. To rectify these weaknesses is an urgent social priority. In doing so, schools must permit students to exercise their judgement in respect of religions and spirituality in general and in all their multifarious manifestations including those arising in respect of politics, culture, intellectual enquiry and the law ... By promoting a deeper critical knowledge of religions, the school can bestow on its future citizens trained critical faculties. As such they will be able to exercise freedom of thought and choice when it comes to the question of beliefs."

This is pretty rarefied stuff. At bottom it is a very powerful assertion (and surely a contentious one) that the only values French citizens can be publicly asserted to hold in common are those in which the State is itself grounded - and those are abstract enlightenment notions about liberty, equality and citizenly zeal. Spiritual and cultural values cannot be known or endorsed in the public sphere. Or as the Commission puts it with characteristic eloquence:

"Today, diversity is sometimes presented in a positive light: cultural rights are claimed by some people to be an essential aspect of their identity. To conserve culture, belief and memory - real or imagined - appears as a form of protection in a world of on-going change. It would be vain to deny the force of particularist sentiment. But the sharpening of cultural identity can simply give rise to a fanatical emphasis on difference carrying with it oppression and exclusion. In a secular society, each person must be able to set some distance between himself and tradition. There is no denial of one's identity in doing that but an act of freedom that permits each person to define themselves by reference to matters cultural and spiritual without being made subject to them."

Drawing a line

Needless to say, this isn't the first time veils have been addressed. France's highest court tackled the issue a decade ago in 1989 and came to the sensible conclusion that religious signs and symbols weren't necessarily of themselves likely to bring the secular state crashing down. Rather, it noted that their ostentatious use and display could lead to disquiet and disorder. And so it proposed a case by case assessment of alleged breaches. The Stasi Commission came to the view that, however pragmatic and reasonable that might have been, it was no longer possible to ask school principals and others to judge and - (one senses, more significantly) - that the forced wearing of the veil had become in at least some instances, a direct act of discrimination and subordination by males. The time had come, it felt, to take a sterner line. Its judgement on the role of schools evinced a republican, missionary zeal inconceivable in a society like New Zealand:

"Schools of the Republic don't just welcome mere customers, but pupils who are destined to become enlightened citizens. The school is, thus, a fundamental institution of the Republic, welcoming for the greater part minors who are compelled to be there and called upon to live together whatever their differences. It's all about having a space dedicated to specific rules that are designed to assure the transmission of knowledge in a calm and collected environment [dans la sérenité - that word again]. A school cannot be completely sheltered from the world of which it is part, but pupils must, equally, be protected from the passions of the world. Certainly, while it is not a sanctuary, the school must put some distance between itself and the world at large to allow the learning process to proceed. And yet, in too many schools, witnesses have demonstrated that conflicts about identity become a factor leading to violence, limit the liberties of individuals and place public order at risk."

The Commission's solution: a ban on the visible use of religious clothing or symbols. The veil, the kippa and large, proselytising sorts of crucifixes are out. But if you can discretely harbour something under your T-shirt, that's o.k.

Where does it all lead?

A grateful President Chirac has pounced upon the advice (which, it must be said extended to all sorts of threats to the Republic in places like hospitals, universities and prisons). He gave himself just a week to consider the report before inviting 400 people to the Elysée for a splendid reception at which a new line was drawn, not so much in the sand as in the gorgeous carpets of the home of the Republic's first citizen. It took the form of a forty minute speech followed by two hours of discussion conducted (Le Monde thoughtfully informed the nation) against the backdrop of an immense Christmas tree covered in false snow - a sufficiently pagan symbol, one senses, not to disturb the Republic's equilibrium.

Needless to say, the President had his work cut out. The nation's religious core is not without political weight and the President could not afford to alienate good conservative voters. On the other hand, equally conservative (but not so religious) voters consider that the Republic is about to be taken over by shrouded extremists. So it was a balancing act. In the end the religious leaders expounded their relieved support (for the tone and good sense of the President's sentiments) whilst expressing grave doubts about the actual workability of a law.

And that's where the trouble begins for the French MPs who must now make sense of the President's wishes. Because wearing veils isn't just about harassed and oppressed women under the subjugation of male Islamic hardliners. Le Monde, some weeks ago, recounted the case of two young students who, to the horror of their parents, decided to adopt the veil as a statement of independence from their determinedly lapsed and secular parents. They just didn't fit any of the conveniently PC reasons for veil stomping. Unfortunately for the law-makers, veil wearers don't all come with the word 'victim' stamped on their foreheads. And of course, the State can force them out of state schools, but it can't stop them entering private Khoranic schools where one suspects Republican sentiments about enlightened individualism get rather short shrift. The awful truth dawning on at least some of the French citizenry upton-on-line has talked to, is the realisation that not for the first time, the Republic may be up against something that it can't simply legislate away!

Sons and daughters of the Republic

France believes that it is a uniquely enlightened republic. Why else would its President declare that "all the children of France, whatever their background, their origin or their beliefs, are the sons and daughters of the Republic." The idea that the State creates the individual is profoundly and vividly believed - or at least proclaimed. Yet everywhere - whether it is young Islamic women wearing veils or kids in the street wearing badges of consumerism like Nike, Levis or GAP - French citizens seem to display a disturbing tendency to see the State as secondary to them, not vice versa. (Interestingly, ostentatious symbols of materialist consumption are not judged corrosive of republican virtue - a remarkable piece of moral airbrushing for a nation that has spawned more than a few high priest of Marxism...)

With opinion polls fully two thirds in favouring of outlawing visible religious symbols in all sorts of public spaces, the President knows he has the wind behind him. Dissenters in his own ranks (including the Education and Interior Ministers who have to actually make these laws stick) have tactfully come into line. So within a few short months, religious promiscuity in schools will be banned (just like lots of other things: running pedestrians down at pedestrain crossings, going through red lights, smoking in train stations and airport terminals to name a few currently unobserved norms).

What is not yet clear is what risks private consenting veil wearers in private may yet pose to the Republic - and what resentments will be unleashed. To date, France has done a pretty good job of being super-sensitive to Arab concerns in the face of American adventurism. The last weekend has seen the first (thus far small) demonstrations by militant veil wearers waving placards saying "It's my choice, it's my right". It is ironic indeed that Britain and America will soon appear to be havens of tolerance and tranquillity as France tightens the screws in the name of vigilant secularism.

Flags as veils

Upton-on-line recently launched a Ministerial Task Force on something called IUU fishing. The task force is going to attempt a comprehensive analysis of the problem covering all the legal, economic, law enforcement and scientific angles - and then take an unsentimental look at just what countries should be doing if they really want to stamp it out. The task force is led by the UK's Environment Minister, Elliot Morley, and includes New Zealand's Fisheries Minister Pete Hodgson.

When a problem has an acronym which nobody bothers to translate, you know it's a problem that is starting to grow whiskers. Illegal, unreported and unregulated fishing is what you do when you set to sea with an eye to a quick buck and not too many worries about what will be left for someone else's grandchildren. It happens everywhere but if you do it within the economic exclusion zones of countries (like New Zealand) that care about a sustainable industry, the chances are you will end up donating your boat to the Treasury.

Beyond the 200 mile limit, however, it's all much more complicated. No country owns the high seas. As a result, whether or not anything is illegal depends on whether or not there's in international treaty in force and what sort of a flag you happen to be flying that morning. For all the tedious nitty gritty on this subject, readers are referred to a paper upton-on-line has co-authored on the subject, available on the OECD's website. But for those interested in just the nub of the issue - at least from a legal point of view - here it is.

Treaties, treaties everywhere but not a net in sight

Twenty years ago, the world community finalised the Law of the Sea. It was a mammoth undertaking, and one whose ratification by member states is still a work in progress. Not surprisingly, it has not been amended. To talk of doing so in the presence of those who painstakingly brought it into life is regarded as heresy. And in a world where multi-lateral solutions look, to say the least, no easier to negotiate, there are clearly powerful arguments against disturbing a status quo that has barely crystallised.

But if the Law of the Sea remains unamended, activity to strengthen the legal regime governing high seas fishing has been unrelenting. The persistence of IUU fishing is certainly not a reflection of diplomatic lethargy. The last 10 years has seen an almost frenzied level of treaty-writing. Few areas of multi-lateral activity have seen so many closely related and sometimes overlapping initiatives pursued in quick succession. Negotiators have not been sitting on their hands.

Whether we are making progress is another matter. The level of activity may reflect, to some extent, shortcomings both in the strength of the legal norms that govern the global ocean commons and in the ability of multilateral processes to secure genuinely comprehensive sign-up. The complex and evolving web of binding and non-binding international instruments has undoubtedly changed the nature and the location of grossly unsustainable high seas fishing. But it has not stopped it. Each new intervention potentially moves the problem somewhere else. And there is no globally enforceable regime at this point that can put an end to the practice. We have instead a patchwork quilt of measures with differing geographical and legal reach.

The way forward will no doubt involve further complicated efforts to improve that reach and coverage. But before we lose ourselves in that complexity it is worth spelling out the tensions that have been internalised in the Law of the Sea. There are two universal premises that underlie the way UNCLOS deals with the high seas. One is the age-old doctrine of the freedom of the high seas, which has formed the basis of the law of the sea for more than 300 years and embodies the notion of open access to common resources that are beyond the jurisdiction and control of individual states. This is reflected in the solemn insistence that the high seas are immune from sovereign claims.

But the fact that sovereign claims will not be recognised does not mean the high seas are a sovereignty-free zone. Which brings us to the second universal premise: that flags on boats create pockets of mobile sovereignty that attract all the immunities necessary to prevent the unwanted attentions of other flag states or inter-state organisations.

Put these two premises together and you have, in reality, a legal framework that erects a veil of sovereignty around fishing vessels and makes the enforcement of any internationally agreed rules dependent on the good will and resources of the flag state. All of the legal rules subsequently elaborated in FAO and UN instruments which seek to spell out flag state responsibilities and allow other states to intervene are subject to these umbrella conditions. The veil of sovereignty conferred by flag status can only be legally pierced with the express consent of the flag state.

Perfectly legal illegal fishing

The result? Flag states that have no serious intention of enforcing whatever obligations they have undertaken, maintain an effective immunity for IUU fishing. It doesn’t really matter whether or not they have gone beyond the Law of the Sea’s relatively general provisions on the conservation of marine resources; if there is no intention or ability to enforce, IUU fishing will continue unimpeded. Articles 116 – 120 of the Law of the Sea provide a perfectly adequate basis for action on the part of states that have a serious intention to halt bad fishing practices. While the FAO Compliance Agreement and the UN Fish Stocks Agreement undoubtedly create more exacting responsibilities and enhance the ability of responsible nations to make IUU fishing by others more difficult, they are in a sense speaking only to the converted.

Because it is not states but boats that go fishing. And in the absence of effective enforcement by flag states – never an easy task even for well-resourced states who have signed the binding legal instruments – good intentions will remain just that. Besides, the hard fact of international law remains that if a boat flies the flag of a state that has not signed any of the legally binding conventions, other states have no legal basis to interfere with that vessel under those conventions. All treaties subsequent to the Law of the Sea have been negotiated without prejudice to the veil of sovereignty in which it cloaks all flagged vessels. In short, there is some IUU fishing that, while being unregulated and unreported, is not at international law illegal. And it is that residual ‘legality’ that poses so many enforcement problems.

For that reason one can only remain sceptical about the efficacy of trying to bring pressure to bear through the elaboration of increasingly detailed non-binding documents such as codes of conduct and plans of action. We run the risk of believing that texts are a substitute for action. Similarly, while further strengthening the resolve and coverage of regional fisheries organisations is clearly a priority, it can only take us so far. These measures, taken under the aegis either of UNCLOS or the more specific provisions of the 1995 UN Fish Stocks Convention, are all being pursued alongside vessels whose flags are those of states who (either explicitly or implicitly) exercise their right to authorise fishing on the high seas but choose not to enter into and be bound by conservation measures and/or enforce them.

The search for points of leverage against IUU fishing proceeds against the reality that international law has underlined the status of the high seas as a global common to which individual sovereign states have been universally assigned access together with national responsibility for enforcement. At the same time, attempts to avert a ’tragedy’ in that common (the rape of its fish stocks) have of necessity been conceived as regional co-operative initiatives between those who choose to join them. The challenge is to bring into some sensible relationship a top-down assertion of rights with a bottom-up attempt at management for the collective good before virtually all international fish stocks are depleted.

At the end of the day, as long as the world will not lift the veil of flag state sovereignty and enquire into the effectiveness of the links that bind those ships to states which are supposed to be enforcing certain standards, we will fight IUU fishing with one hand tied firmly behind our backs. Most of our citizens would be amazed to learn that the Law of the Sea gives nations the right to intercept, on the high seas, boats that are engaged in the pernicious evil of unauthorised broadcasting, but not boats that are recklessly plundering high seas fish stocks because they are theoretically under the control of a negligent flag state.

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