Written by Kristin Bergtora Sandvik* and Ingunn Ikdahl**

Introduction

COVID-19 lockdowns have had momentous impact on children’s lives worldwide and in particular on the right to education. Save the Children reports that more than 1.6 billion learners globally have faced school closures due to the pandemic, resulting in at least 10 million children not returning to school.[1] Among key international stakeholders, there appears to be a consensus that the problem is lack of access to remote education.

In the context of COVID-19, academics, policymakers and activists have given significant attention to digital learning and to the right to education.[2] However, the interlinkages between the two have been subject to little critical scrutiny. In this commentary, we interrogate how the problem of lockdowns as a barrier to education—and the proposed solutions to overcome this barrier—are defined, and the consequences for children’s right to education. Our argument is that a framing of remote learning, connectivity, and access to hardware as the solutions to lockdown unduly privileges certain understandings of how children’s right to education are violated.

We argue that the trend towards digital learning entails a platformization of education, engendering new problems, with respect to discrimination, data protection, the freedom of speech and of thought, and the right to culture. In combination, these digital platforms represent a fragmentation of the right to education. In contrast to the comprehensive and holistic understandings of the right to education developed by the UN treaty bodies, the fragmentation entails splitting the right into components, with the right to education in international law the fragmentation entails splitting the right into components, with “equal access” taking center stage. In the following piece, we consider the right to education in international law; explore the framing of the COVID-19 education challenge; and discuss how the focus on reachability and platformization—i.e. digital access—may adversely affect children’s rights. We hope that this analysis can also provide pointers for a post-COVID-19 research agenda on the right to education.

1.    The right to education in international law

The right to education is articulated in several international human rights documents, most prominently the Universal Declaration on Human Rights article 26,[3] the Convention on the Rights of the Child (CRC) articles 28 and 29,[4] and the Covenant on Economic, Social and Cultural Rights (CESCR) articles 13 and 14. [5] Setting out to clarifying the scope and content of the right, the UN CESCR Committee adopted a “General Comment” in 1999. The Committee relied on its standard 4A-criteria: Availability, accessibility, acceptability and adaptability.[6] Functioning institutions and programs must be available in the state, but also physically and economically accessible for all—without discrimination in law or in fact. Acceptability requires that its form and substance, including curricula and teaching methods, is relevant, of high quality and culturally appropriate. Adaptable education is flexible enough to meet changing needs of societies, communities and students. The Committee emphasized that these four were “interrelated and essential features” for all forms of education.[7]

Rights discourses were not the only factors shaping global policies around education. A long-term staple of development programming, education has been increasingly included in humanitarian response.[8] In 2000, UNESCO, UNICEF, UNHCR and the International Rescue Committee co-founded the Interagency Network for Education in Emergencies.[9] These efforts to fit education into the humanitarian agenda emphasized urgency and humanitarianism, rather than rights, and framed education as “a service that could be packaged” like other forms of packaged emergency aid. The focus on service delivery distanced education from politics, and rhetorically, access was prioritized over quality.[10] The “Education Cannot Wait” fund, launched at the World Humanitarian Summit in 2016, also emphasized the need for convergence of humanitarian and development approaches to education in emergencies and protracted crises. While human rights occupied no prominent place in the founding documents, it was central in the UN’s recently adopted Social Development Goal 4 on “inclusive and equitable quality education … for all.”[11]

A convergence between humanitarian discourses on education in emergencies and human rights-based approaches to education initially surfaced in 2008. The then UN Special Rapporteur on the Right to Education devoted his annual report to the topic of “Right to education in emergency situations,”[12] retaining the 4A-criteria and critiquing both donors and large sectors of the international communities for formally committing to the right to education while failing it in practice (paras 69-81). The same year, the CRC committee similarly emphasized the need for a broad rights-based approach to education in emergencies—integrating the four general principles of the CRC: “the right to non-discrimination (article 2); best interests of the child (article 3); the right to life, survival and development (article 6); and the right to be heard (article 12).”[13]

Digital learning only made intermittent appearances in these early soft law documents on the right to education. One example is the CESCR Committee’s brief suggestion that physical accessibility to education could be achieved not only by attendance at a neighborhood school, but also via “modern technology.”[14] A sustained discussion of digitization and children’s rights only emerged around 2014, as the CRC organized a Day of General Discussion on “Digital media and children’s rights.”[15] A draft general comment from CRC on “Children’s rights in relation to the digital environment” is still under development.[16] The current draft, from August 2020, underlines the importance of quality and privacy concerns in digital education.[17]  However, the Committee also suggests the potential of digital educational technologies for “children not physically present in school or living in remote areas or in disadvantage or vulnerable situations.”[18] This point echoes the Committee’s earlier statements on the role of digital media as a possible alternative to formal schooling for specific groups of children.[19] Thus, the Committee states, “At times of, for instance, public emergency or humanitarian situations, access to health services and information through digital technology may become the only option.”[20]

Hence, the relationship between the right to education and the global turn to technology-enabled distance learning is both in transition—and in need of further unpacking.

2. Framing the problem: Education during COVID-19 in international law and policy instruments

From the outset of the pandemic, a range of global actors has been involved in providing policy advice.[21] A rapidly growing body of fact-sheets,[22] reports,[23] and compilations of online resources [24] have contributed to framing the problems of education during COVID-19. The absence or immaturity of digital transformation of education has been a key element.[25] In this section, we map out key understandings in current policy discourse on violations of children’s rights. In Section 3, we identify a set of issues critical to children’s rights to education missing from this conversation.

In the specific logistical context of lockdown, limited and unequal access to internet and hardware (“reachability”), as well as inadequate digital transformation of education more generally (including a lack of policies on digital learning) are the key features of the problem. UN Agencies and INGOs have repeatedly pointed out that the access to connectivity that exists is highly unequal and divided along a range of dimensions: between high- and low-income countries,[26] between poor and wealthy inside countries,[27] between rural and urban areas, and affecting girls in particular.[28]

Specific solutions emerge from this problem-framing. Actors such as the World Bank and OECD present remote learning as central, and technology as “one of the most critical tools.”[29] This framing reflects broader trends concerning intersections of technology with the human rights field, as well as the emergency education field.[30]Technological solutionism is premised on a view of technological progress as inevitable, apolitical, and able to mitigate political, economic, social, and cultural forms of human suffering. Self-responsibilization through technology involves an increasing emphasis on individuals actively taking responsibility—though technology—for their own welfare, health, education etc. An integral part of the framing is the opportunity to learn and experiment with educational technology.[31] The framing of tech solutions also distracts from the deficiencies that led to an inadequate “pandemic responses in the first place, such as broken public systems, lack of trust, or social inequalities.”[32]

While a prominent component of the global discourse on education and development, rights-based approaches have been remarkably absent from the COVID-19 statements on education by international actors. Where rights-based arguments are made, such as in the recommendations by UNESCO and the International Commission on the Futures of Education[33] and the UN Secretary General’s policy brief on “Education during COVID-19 and beyond,”[34] it is for the definition of the right to education to be expanded to also include “connectivity entitlements.”[35]

Statements from human rights institutions appear to make a similar shift: away from a comprehensive and holistic understanding of the right to education, towards a narrower focus on access. In March, all the human rights treaty bodies emphasized the equality in access in a joint statement on COVID-19.[36] Echoing this approach, the COVID-19 statement from the CRC (para 3) emphasizes inequalities in access, foregrounding online learning as the main tool, and alternative solutions as safety nets for those without tech tools and internet connectivity.[37] While the CRC Committee’s draft General Comment on “Children’s rights in relation to the digital environment” mentioned above encompasses a nuanced approach to technology,[38] the COVID-19 statement thus perpetuates an ‘access first’ focus with respect to emergencies. The CESCR Committee’s COVID-19 statement takes a similar approach.[39]

A notable exception is the Special Rapporteur on the right to education, who in the annual report for 2020 gave attention to problematic dimensions of digitalization of teaching. Going beyond issues of connectivity and access, the report points out “the patent global lack of preparedness for a crisis of this magnitude,” as well as the risks involved if temporary measures, such as reliance on distance learning and private actors, become permanent.[40]

2.    Privatization, platformization, and children’s rights

As education has become an emergency matter, educational technologies have been positioned as a frontline emergency service. Edtech actors are “treating COVID-19 as a business opportunity to prove its benefits, extend its reach and grow market share,” with the dual aim of providing “a short-term response to the pandemic and a long-term ambition for whole education systems.”[41] The Special Rapporteur emphasizes that “the massive arrival of private actors through digital technology should be considered as a major danger for education systems and the right to education for all in the long term.”[42] To contribute to a future research agenda, here we identify three critical knock-on impacts on children’s rights.[43]

The first issue concerns how discrimination is exacerbated in the education context through two interlinked trends: platformization and privatization. The rise of corporate and state-controlled platform ecosystems[44] has caused concern about how the ‘platformization of schooling’ reinforces traditional exclusions, by leaving out students without access to digital gadgets or connectivity.[45] COVID-19 can also facilitate long-term privatization of education,[46] as an alternative business model is emerging: selling Edtech to students and parents in a new direct-to-consumer model of education.[47] According to critics—with whom we sympathize—thinking around digital inequalities must move beyond issues of access, and focus on supporting, regulating and designing “an inclusive digital future for us all.”[48]

The second issue relates to data protection and privacy. From a commercial—and governmental—point of view, digital education is not only about delivering educational content to children, but also about improving learning management systems and monitoring tools to track student learning.[49] Thus, in practice, digital education . The scale and depth of intrusive data collection and the involvement of additional actors raises questions about protection of children’s rights to privacy and data protection[50] and whether due diligence is undertaken to maintain the integrity of children’s digital bodies. Children’s digital bodies are constituted through the images, information, biometrics, and other data stored in digital space. [51]

The final issue arises with reference to freedoms of thought, of speech, and of access to the cultural life of the community. The values of public education, and the integrity of national or minority and indigenous education systems are affected if platformization and stated goals of ‘transforming cultures’ of education through technology[52]restructure the content of education. Technology is not neutral. An increase in personalized adaptive learning systems can undermine or reshape curricular values or flatten contextually driven approaches to education: technology platforms orient teachers to see student data as interchangeable with students, which we believe highlights the need for greater scrutiny of technology platforms’ role in the classroom.[53] We propose that while private sector actors play a crucial role in delivering education, the question of democratic process and democratic control is becoming increasingly acute—as noted by commentators, “The risk is that curricular values that have hitherto beendemocratically processed and negotiated may be replaced by de facto curricular values co-created by commercial interests and algorithmic powers.”[54]

Concluding thoughts

This commentary—which can hopefully also serve as a future research agenda—argues that the digital transformation of education through Edtech and remote learning, and the normative emphasis on access to hardware and software, fragments the right to education in ways that are precarious to the best interest of the child. As noted above, the notion of ‘building back better’ signal the experimental tenor of Edtech in emergencies. This echoes observations that emergency remote teaching has been positioned in ‘experimental’ terms with respect to what schools, the idea of education, and learning looks like.[55] At present, many policy decisions can be construed as experimental. Yet, in the context of emergency education, there are experimental attributes that go beyond the pedagogic politics of the pandemic, to serve the political and economic interests of Edtech itself. Beyond the questionable ethics underlying this type of experimentalism,[56] what is problematic here is the apparent abandonment of a holistic and multi-dimensional approach to the right to education in favor of an emphasis on digital access. At the beginning of 2021, the CRC Committee is finalizing its general comment on children and the digital environment. This document can be enormously important in putting the right to education in emergencies back on a rights track.

*Professor, Department of Criminology and Sociology of Law, Faculty of Law, University of Oslo

**Professor, Department of Public and International Law, Faculty of Law, University of Oslo

Notes

[1] Jess Edwards, Protect a Generation, Save the Children (2020), https://resourcecentre.savethechildren.net/node/18218/pdf/vr59-01_protect_a_generation_report_en_0.pdf.

[2] Netta Iivari, Sumita Sharma & Leena Ventä-Olkkonen. Digital Transformation of Everyday Life—How COVID-19 Pandemic Transformed the Basic Education of the Young Generation and Why Information Management Research Should Care?, 55 Int’l J. Info. Mgmt. (2020); Ellen Kollender & Maissam Nimer, Long-term Exclusionary Effects of Covid-19 for Refugee Children in the German and Turkish Education Systems: A Comparative Perspective, IPC-Mercator Policy Brief (2020), https://ipc.sabanciuniv.edu/Content/Images/CKeditorImages/20200717-00071708.pdf; Shanti Raman et al., Where Do We Go From Here? A Child Rights-Based Response to COVID-19, 4 BMJ Paediatrics Open 1 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7299026; Titus Corlatean, Risks, Discrimination and Opportunities for Education During the Times of COVID-19 Pandemic, Proceedings of the 17th Research Association for Interdisciplinary Studies Conference (June 1-2 2020), http://rais.education/wp-content/uploads/2020/06/004TC.pdf.

[3] G.A. Res. 217 (III) A, Universal Declaration of Human Right (Dec. 10, 1948).

[4] Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

[5] International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 999 U.N.T.S. 171.

[6] With small variations, these criteria have been used by the Committee to clarify the normative content of various rights, including housing (General comment no. 4, 1991), food (General comment no. 12, 1999), education (General comment no. 13, 1999), health (General comment no. 14, 2000, and General comment no. 22, 2016), water (General comment no. 15, 2002), social security (General comment no. 19, 2008), participation in cultural life (General comment no. 21, 2009) and scientific progress and research (General comment no. 25, 2020). They now appear as a framework of general applicability for economic, social and cultural rights.

[7] Committee on Economic, Social and Cultural Rights, General Comment no. 13 (1999), The Right to Education (Article 13 of the Covenant), para. 6, U.N. Doc. E/CN.12/1999/10 [hereinafter Gen. Comm. 13].

[8] World Education Forum, Thematic Studies: Education in Situation of Emergency and Crisis: Challenges for the New Century, UNESCO(2001), https://inee.org/system/files/resources/UNESCO_Education_in_Situations_of_Emergency_and_Crisis_2000_en.pdf; see also Dana Burde, Amy Kapit, Rachel L. Wahl, Ozen Guven, & Margot Igland Skarpeteig, Education in Emergencies: A Review of Theory and Research, 87 Rev. Educ. Res. 619 (2017); Fumiyo Kagawa, Emergency Education: A Critical Review of the Field, 41 Comp. Educ. 487 (2005); World Education Program, The Dakar Framework for Action: Education for All: Meeting Our Collective Commitment, UNESCO (2000).

[9] INEE, Minimum Standards for Education in Emergencies, Chronic Crises and Early Reconstruction, UNESCO (2004), https://www.refworld.org/pdfid/41f627494.pdf.

[10] Burde et. al, supra note 10, at 623.

[11] Susan Nicolai et. al., Education Cannot Wait: Proposing a Fund For Education in Emergencies, Overseas Dev. Inst. (May 2016), https://www.odi.org/sites/odi.org.uk/files/resource-documents/10497.pdf.

[12] Vernor Muñoz (Special Rapporteur on the Right to Education), Right to Education in Emergency Situations, U.N. Doc. A/HRC/8/10 (20 May 2008), https://www.ohchr.org/en/issues/education/sreducation/pages/annualreports.aspx.

[13] The recommendations were drafted following a CRC Day of General Discussion on “The right of the child to education in emergency situations,” where presentations were made by the INEE, UNESCO, UNICEF and the Special Rapporteur on the Right to Education. Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, Comm. on the Rights of the Child, 3 October 2008,

https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations2008.doc.

[14] Gen. Conm. 13, supra note 13, para. 6.b.

[15] CRC, Day of General Discussion 2014: Digital Media and Children’s Rights, OHCHR (12 September 2014),

https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2014.aspx.

[16] The draft General Comment on Children’s Rights in Relation to the Digital Environment is available on the Committee’s webpage, alongside submissions and comments. See CRC, Submissions on Concept of GC digital Environment, OCHCR https://www.ohchr.org/EN/HRBodies/CRC/Pages/Submissions_Concept_GC_Digital_Environment.aspx; see also  CRC, Draft General Comment No. 25 (202x): Children’s Rights in Relation to the Digital Environment, U.N. Doc CRC/C/GC/, 14 August 2020, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/GC/25&Lang=en  [hereinafter Draft Gen. Comm. Digital Environment].

[17] Id. at paras. 111-112.

[18]  Id. at para 110.

[19] Such statements have included out-of-school girls (see CRC & CEDAW, Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination Against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, CEDAW/C/GC/31-CRC/C/GC/18, para. 64, 14 November 2014); children in street situations (see CRC, General Comment No. 21 (2017) on Children in Street Situations, CRC/C/GC/21, para. 54-55); and indigenous children (CRC, General Comment 11, Indigenous Children and Their Rights Under the Convention, CRC/C/GC/11, para. 61).

[20] Draft Gen. Comm. Digital Environment, supra note 18, para. 101.

[21] See, for example, the cooperation between the Harvard Global Education Innovation Initiative, HundrED, the OECD Directorate for Education and Skills, and the World Bank Group Education Global Practice. Lessons For Education During the COVID-19 Crisis, World Bank(22 June 2020), https://www.worldbank.org/en/topic/edutech/brief/lessons-for-education-during-covid-19-crisis [hereinafter Lessons for Education].

[22] COVID-19: At Least a Third of the World’s Schoolchildren Unable to Access Remote Learning During School Closures, New Report Says, World Bank (26 August 2020),

https://www.unicef.org/press-releases/covid-19-least-third-worlds-schoolchildren-unable-access-remote-learning-during; COVID-19: Are Children Able to Continue Learning During School Closures?, World Bank (August 2020), https://data.unicef.org/resources/remote-learning-reachability-factsheet.

[23] Fernando M. Reimers & Andreas Schleicher, A Framework to Guide an Education Response to the Covid-19 Pandemic of 2020, OECD (2020), https://read.oecd-ilibrary.org/view/?ref=126_126988-t63lxosohs&title=A-framework-to-guide-an-education-response-to-the-Covid-19-Pandemic-of-2020; Emma Wagner & Hollie Warren,  Save Our Education: Protect Every Child’s Right to Learn in the COVID-19 Response and Recovery, Save the Children (July 13, 2020), https://www.savethechildren.net/save-our-education-report.

[24] See Fernando Reimers et. al, Supporting the Continuation of Teaching and Learning During the COVID-19 Pandemic, OECD (2020),

https://www.oecd.org/education/Supporting-the-continuation-of-teaching-and-learning-during-the-COVID-19-pandemic.pdf; Remote Learning, Distance Education and Online Learning During the COVID19 Pandemic : A Resource List by the World Bank’s Edtech Team, World Bank (26 March 2020), https://documents.worldbank.org/en/publication/documents-reports/documentdetail/964121585254860581/remote-learning-distance-education-and-online-learning-during-the-covid19-pandemic-a-resource-list-by-the-world-banks-edtech-team.

[25] As early as March, the World Bank’s “multi-sectoral task force,” anticipating a global wave of school closures, identified the unequal access to technological devices and high bandwidth internet as a key issue to be addressed in the preparative phase. Kalipe Azzi-Huck & Tigran Shmis, Managing the Impact of COVID-19 on Education Systems Around the World: How Countries Are Preparing, Coping, and Planning for Recovery, World Bank Blogs (March 18, 2020),

https://blogs.worldbank.org/education/managing-impact-covid-19-education-systems-around-world-how-countries-are-preparing.

[26] Wagner & Warren, supra note 25.

[27] Edwards, supra note 1.

[28] Building Back Equal: Addressing the Gender Dimensions of COVID-19 School Closures Through Technology, UNESCO (September 10, 2020),

https://en.unesco.org/news/building-back-equal-addressing-gender-dimensions-covid-19-school-closures-through-technology; see also Bridging the Gender Digital Divide, Plan Int’l, https://plan-international.org/education/bridging-the-digital-divide; Phumzile Mlambo-Ngcuka & Anne-Birgitte Albrectsen, We Cannot Allow COVID-19 to Reinforce the Digital Gender Divide, Devex (4 May 2020), https://www.devex.com/news/opinion-we-cannot-allow-covid-19-to-reinforce-the-digital-gender-divide-97118.

[29] Lessons for Education, supra note 31.

[30] Research Handbook on Human Rights and Digital Technology: Global Politics, Law and International Relations (Ben Wagner, Matthias C. Kettemann & Kilian Vieth, eds., 2019); Kristin Bergtora Sandvik, Wearables for Something Good: Aid, Dataveillance and the Production of Children’s Digital Bodies, 23 Info., Comm. & Soc’y 2014 (2020); Karen Yeung, Algorithmic regulation: A Critical Interrogation. 12 Reg. & Governance 505 (2018).

[31] See, e.g., Lessons for Education, supra note 31 (“The COVID-19 crisis is an opportunity for policy makers to learn from each other and co-operate to mitigate the effects of the pandemic and maybe even ‘build back better.’”); David Edwards & Guy Ryder, see also Reimagine Education to Achieve Quality Learning for All, UN and Partners Urge, UN News (5 October 2020),

https://news.un.org/en/story/2020/10/1074652; Teachers: Leading in Crisis, Reimagining the Future, UNICEF (5 October 2020), https://www.unicef.org/press-releases/teachers-leading-crisis-reimagining-future.

[32] Antoine de Bengy Puyvallée, Book Review: Data Justice and COVID-19. Global Perspectives, Security & Dialogue (Nov. 4, 2020),

[33] International Commission on the Futures of Education, Education in a Post COVID-19 World: Nine Ideas for Action, UNESCO (2020), https://unesdoc.unesco.org/ark:/48223/pf0000373717/PDF/373717eng.pdf.multi.

[34] Policy Brief: Education During COVID-19 and Beyond, United Nations (August 2020), https://www.un.org/sites/un2.un.org/files/sg_policy_brief_covid-19_and_education_august_2020.pdf [hereinafter Policy Brief].

[35] Bono & Mark Zuckerberg, To Unite the Earth, Connect It, N.Y. Times (Sept. 26, 2015), https://www.nytimes.com/2015/09/27/opinion/sunday/to-unite-the-earth-connect-it.html (citing SDG target 9.c).

[36] UN Human Rights Treaty Bodies Call for Human Rights Approach in Fighting COVID-19 (24 March 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E.

[37] The Committee on the Rights of the Child Warns of the Grave Physical, Emotional and Psychological Effect of the COVID-19 Pandemic on Children and Calls on States to Protect the Rights of Children (8 April 2020), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CRC/STA/9095&Lang=en.

[38] See Draft Gen. Comm. Digital Environment, supra note 17, discussing among others impact and regulation of the business sector (paras. 36-39) and the right to privacy (paras. 69-79).

[39] CESCR Committee, Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights, U.N. Doc. E/C.12/2020/1 (17 April 2020), https://undocs.org/E/C.12/2020/1.

[40] U.N. Special Rapporteur on the Right to Education, Right to Education: Impact of the Coronavirus Disease Crisis on the Right to Education—Concerns, Challenges and Opportunities, U.N. Doc. A/HRC/44/39 (15 June – 3 July 2020), https://undocs.org/A/HRC/44/39 [hereinafter Rapporteur Right to Education].

[41] Ben Williamson, Rebecca Eynon & John Potter, Pandemic Politics, Pedagogies and Practices: Digital Technologies and Distance Education During the Coronavirus Emergency, 45 Learning, Media & Tech. 107 (2020), https://www.tandfonline.com/doi/full/10.1080/17439884.2020.1761641.

[42]  Rapporteur Right to Education, supra note 42.

[43] In particular CRC articles 13, 15, 16 and 17. For an interesting discussion see Carly Nyst, Amaya Gorostiaga & Patrick Geary, Children’s Online Privacy and Freedom of Expression, UNICEF (May 2018), https://www.unicef.org/csr/files/UNICEF_Childrens_Online_Privacy_and_Freedom_of_Expression(1).pdf.

[44] José Van Dijck, Seeing the forest for the trees: Visualizing platformization and its governance, New Media & Soc’y (2020), https://journals.sagepub.com/doi/full/10.1177/1461444820940293.

[45] Concept Note for a Digital New Deal, IT for Change (2020) https://itforchange.net/digital-new-deal.

[46] Ben Williamson & Anna Hogan, The Edtech Pandemic Shock (7 October 2020), https://www.worldsofeducation.org/en/woe_homepage/woe_detail/16856/the-edtech-pandemic-shock-by-ben-williamson-anna-hogan.

[47] Williamson, Eynon and Potter, supra note 41.

[48] Id.

[49] The push for data collection can be illustrated by the UN Secretary General policy brief, which recommends comprehensive data collection at multiple levels. Policy Brief, supra note 34, at 24.

[50] See Draft Gen. Comm. Digital Environment, supra note 18, para. 18 (children’s right to be heard), 70 (data collection for educational purposes), 112 (dangers of commercial exploitation in the context of digital educational technologies).

[51] Kristin Bergtora Sandvik, Protecting Children’s Digital Bodies Through Rights, Open Rights Global (30 October 2019), https://www.openglobalrights.org/protecting-childrens-digital-bodies-through-rights.

[52] Gerhard Fischer, Johan Lundin & J. Ola J. Lindberg, Rethinking and Reinventing Learning, Education and Collaboration in the Digital Age—From Creating Technologies to Transforming Cultures, 37 Int’l J. Info. & Learning Tech. 241 (2020), https://www.emerald.com/insight/content/doi/10.1108/IJILT-04-2020-0051/full/html.

[53] Priya C. Kumar et al., The Platformization of the Classroom: Teachers as Surveillant Consumers, 17 Surveillance & Soc’y 145 (2019), https://ojs.library.queensu.ca/index.php/surveillance-and-society/article/view/12926/8488.

[54] Thomas Hillman, Annika Bergviken Rensfeldt & Jonas Ivarsson. Brave New Platforms: A Possible Platform Future for Highly Decentralised Schooling, 45 Learning, Media & Tech. 7 (2020). The special rapporteur has been particularly vocal in this regard: “Distance learning tools must make use of high-quality content that is adapted to local contexts and, in particular, local languages, and must be introduced together with effective and ongoing training for teachers and learners. They should permit teachers and learners to provide their input, allow for pedagogical differentiation depending on the level and the capacities of learners and should also allow academic freedom and creativity.” U.N. Special Rapporteur on the Right to Education, supra note 40, para 48. And: “The likely expansion of public-private partnerships in the post-crisis period risks increasing educational inequalities, with limited citizen engagement or accountability.” Para 77.

[55] Williamson, Enyon and Potter, supra note 23.

[56] Kristin Bergtora Sandvik, Humanitarian Wearables: Digital Bodies, Experimentation and Ethics, in Ethics of Medical Innovation, Experimentation, and Enhancement in Military and Humanitarian Contexts 87-104 (2020); Kristin Bergtora Sandvik, Katja Lindskov Jacobsen & Sean Martin McDonald, Do No Harm: A Taxonomy of the Challenges of Humanitarian Experimentation, 904 Int’l Rev. Red Cross 319 (2017).

This post was initially published at https://www.yjil.yale.edu/covid-19-towards-a-digital-fragmentation-of-the-right-to-education/

This commentary is reposted from HHR Viewpoint https://www.hhrjournal.org/2020/12/covid-19-and-the-law-framing-healthcare-worker-risks-as-womens-rights-violations/ and added here to stand in solidarity with women healthcare workers everywhere.

Today, public health is ‘delivered by women and led by men’, with a glaring absence of women and nurses at the decision making table.^[1] Globally, though women only make up 25% of those in healthcare leadership they make up the majority of healthcare workers (70%) and nurses (90%).^[2]  This exclusion skews the agendas on health so the gender dimensions of research, diagnosis, treatment, and care are rendered invisible.^[3] It also perpetuates a historical legacy whereby women health workers have been underpaid, undervalued, and their needs underprioritized.^[4]

In the context of COVID-19, this structural gender inequality creates specific problems. Critically, the safety and security issues, and threats and harms facing health care staff are deeply gendered. International law offers some relief, though the gendered elements are not sufficiently highlighted to truly protect women. International humanitarian law, which pays significant attention to attacks on health care workers, does not apply to public health emergencies like COVID-19. Furthermore, broadly scoped human rights instruments do not account for the gendered dimensions of health care work in emergencies. Under international human rights law, human beings have the right to life (Article 6 of the International Covenant on Civil and Political Rights) and the right to ‘the highest attainable standard of physical and mental health’.^[5] 

Globally, health care workers represent a high percentage of those infected with COVID-19. The International Council of Nurses reported that by the end of October 1,500 nurses from 44 countries had died, with total health worker fatalities as high as 20,000.^[6] Not only are health workers disproportionately at risk of infection, but they also carry most of the care-burden at home, including caring for older relatives, having a significant impact on their right to family life.^[7] Although the legal instruments set out the relevant rights and ways in which they are violated, the universal framing may have a “neutralization effect”: by failing to foreground that women are disproportionately affected because they make-up the majority of health workers,  emphasis on the universality of human rights norms risks concealing the gendered impact.

To address this blind spot, I recommend a strategic pivoting towards women’s rights. Careful attention to a legal framing of problems and an emphasis on articulating harms and obligations through the language of international women’s rights law could help address these concerns.

Pivoting towards women’s rights

The Convention on the Elimination of All Forms of Discrimination against Women (1979) (CEDAW) is a powerful, albeit difficult, instrument to work with. Although riddled with state party reservations, caveats, and dubious interpretation of obligations, it is nevertheless the key international legal instrument protecting women.^[8] The Convention and the breadth of the CEDAW committee’s general recommendations can be applied to discrimination, work, and violence to locate gendered risks as human rights violations.

Discrimination. CEDAW Article 1 states that all forms of discrimination are prohibited. Discrimination means any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women of human rights and fundamental freedoms. Attention must be paid to intersectional discrimination, such as where gender, class and ethnicity intersect.^[9] It also requires an awareness of how politics and culture matter in emergencies: women healthcare workers’ role as “shock absorbers” is a result of systematic discrimination and a failure to frame these shocks as outcomes of policy and political decisions, that is, they are literally man-made. The duty of sacrifice underpinning the professional nursing culture is consistent with societal expectations about women’s roles as nurturers and caregivers—at any cost.

Work. The structural undervaluation and failure to provide fair payment to nurses is closely tied to the notion of care work as women’s work, and the still-liminal legal status of women’s work as a salaried activity within a safe environment.^[10] The right to equal pay and treatment under international law was established 70 years ago.^[11] CEDAW Article 11(d), states “the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work”. The structural injustice of nurses’ pay could be investigated as a violation of the state’s obligations under international law and subjected to strategic and coordinated litigation.

Risk. In the context of COVID-19, risk and harm have been linked to inadequate planning and a dearth of resources tailored to the needs of women healthcare workers. With respect to workplace safety, the inadequately fitted PPE for women healthcare workers during the Ebola outbreak in 2014-15 appear to have been repeated.^[12] When quarantining women health workers their reproductive health needs must be addressed. As noted, it “is important to include products such as essential hygiene and sanitation items e.g. sanitary pads, soap, hand sanitizers, etc.) for female health workers, women and girls, particularly those quarantined for prevention, screening and treatment”.^[13] Failure to observe these needs should not be explained as poor logistics: instead, inadequate preparedness should be identified as a violation of  women’s right to work. According to CEDAW Article 11 (f) on workplace safety, women have “The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.”

Violence. There is a need to assess the legal implications of how gender-based health care worker risks become gender-based violence.^[14] Having access to legal language to name harms helps. Disconcertingly, it is regularly observed that sexual harassment is still the norm in health care, whether the perpetrator is the employer or manager, colleagues, patients, or patient family members.^[15] In recent years, the problems with workplace harassment and the importance of recognizing and reporting these issues, including grave forms of violence, have been illuminated by worldwide #MeToo and #AidToo campaigns.^[16] Despite this progress, “hard law” formal recognition—and an attendant link to political willingness to invest in systematic documentation practices and sanctions—is still just emerging. Some international instruments explicitly recognize that gender-based violence undermines women’s right to just and favorable conditions of work—but this remains soft law.^[17] The Violence and Harassment Convention, 2019 (No. 190), in the process of being ratified, addresses this most directly, emphasizing that,

Acknowledging that gender-based violence and harassment disproportionately affects women and girls, and recognizing that an inclusive, integrated and gender-responsive approach, which tackles underlying causes and risk factors, including gender stereotypes, multiple and intersecting forms of discrimination, and unequal gender-based power relations, is essential to ending violence and harassment in the world of work.^[18]

Finally, some health workers pay the ultimate prize. Gender-based violence also potentially undermines women’s health care workers right to life: every year women health care workers are killed on the job—targeted in gendered ways and because they are female.^[19] This must systematically and carefully be investigated as murder and not dismissed as workplace incidents.

Conclusion

This Viewpoint has argued that pivoting towards women’s human rights – by way of matching the experiences of women healthcare workers to the discourse and analytical prism of law – could make an important contribution to the struggle for more equitable treatment of women healthcare workers globally. This means zeroing in on how the risks and harms experienced by women health care workers are not trivial. Rather, they are lethal, not inevitable but political, and such risks and harms frequently violate international human rights obligations.

Acknowledgments

This commentary is based on my contribution to the panel on the Safety and security of healthcare workers during the COVID19 pandemic and other epidemics panel at the Women in Global Health Norway Annual Conference 2020. I am grateful to the panelists and the hosts for the encouragement to write this.

Kristin Bergtora Sandvik is Research Professor in Humanitarian Studies, PRIO and Professor of Sociology of Law, Department of Criminology and Sociology of Law, University of Oslo, Norway. Email: kbsandvik@jus.uio.no

References

[1] Delivered by Women, Led by Men: A Gender and Equity Analysis of the Global Health and Social Workforce Human Resources for Health Observer – Issue No. 24 Available at   https://www.who.int/hrh/resources/health-observer24/en/

[2] WHO (the Gender, Equity and Leadership in the Global Health and Social Workforce)  Available at https://www.who.int/docs/default-source/health-workforce/ghwn-geh-policy-brief-for-consultation.pdf?sfvrsn=ff48aa7b_4;  WHO, “Delivered by Women, Led by Men: A Gender and Equity Analysis of the Global Health and Social Workforce Human Resources for Health” (2019) Observer – Issue No. 24 Available at   https://www.who.int/hrh/resources/health-observer24/en/

[3] G. R. Gupta, N. Oomman, C. Grown C, et. Al. “Gender Equality, Norms, and Health Steering Committee. Gender equality and gender norms: framing the opportunities for health.” Lancet 2019 Jun 22;393(10190):2550-2562. doi: 10.1016/S0140-6736(19)30651-8.

[4] Mercado et al. (eds.) “Women’s Unpaid and Underpaid Work in the Times of COVID-19 Move towards a new care-compact to rebuild a gender equal Asia”, Monday, June 1, 2020. Available at https://asiapacific.unwomen.org/en/news-and-events/stories/2020/06/womens-unpaid-and-underpaid-work-in-the-times-of-covid-19

[5] Available at   https://www.ohchr.org/documents/publications/factsheet31.pdf and https://www.ohchr.org/EN/Issues/Executions/Pages/InternationalStandards.aspx

[6] ICN confirms 1,500 nurses have died from COVID 19 in 44 countries and estimates that healthcare worker COVID 19 fatalities worldwide could be more than 20,000 October 28, Available at  https://www.icn.ch/news/icn-confirms-1500-nurses-have-died-covid-19-44-countries-and-estimates-healthcare-worker-covid

[7] See for example Guide on Article 8 of the European Convention on Human Rights European court of human rights Right to respect for private and family life, home and correspondence. Available at  https://www.echr.coe.int/documents/guide_art_8_eng.pdf

[8] N. A. Englehart  and M. K. Miller, “The CEDAW effect: international law’s impact on women’s rights.” 13.1 Journal of Human Rights (2014): 22-47.

[9] H.M. Treadwell, “Wages and Women in Health Care: The Race and Gender Gap”  109 American Journal of Public  Health (2019). Available at  https://doi.org/10.2105/AJPH.2018.304866

[10] F. Robinson, “Beyond labour rights: The ethics of care and women’s work in the global economy.” International Feminist Journal of Politics 8.3 (2006): 321-342.

[11]  Available at  https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100

[12] Z. Kleinman (2020) PPE ‘designed for women’ needed on frontline 29 April 2020; Available at https://www.bbc.com/news/health-52454741

[13] Policy Brief: The Impact of COVID-19 on Women 9 APRIL 2020. Available at  https://www.un.org/sites/un2.un.org/files/policy_brief_on_covid_impact_on_women_9_apr_2020_updated.pdf?emci=042a2364-2a7b-ea11-a94c-00155d03b1e8&emdi=1b37376c-2e7b-ea11-a94c-00155d03b1e8&ceid=2369678

[14] A. S. George, et al. (eds.) “Violence against female health workers is tip of iceberg of gender power imbalances.” bmj 2020; 371:m3546

[15] A. Salles, “Sexual Harassment Is Still the Norm in Health Care” Scientific American, October 24, 2019. Available at  https://blogs.scientificamerican.com/voices/sexual-harassment-is-still-the-norm-in-health-care/

[16] DisasterReady (2019) 27 Sep 2019 Responding to Sexual Violence in the Aid Workplace; Available at https://reliefweb.int/training/3323808/responding-sexual-violence-aid-workplace; K. Midden,  and S Deshmukhs, “#AidToo: How development organizations can respond to sexual violence.” 14 December 2017. Available at  https://www.devex.com/news/aidtoo-how-development-organizations-can-respond-to-sexual-violence-91707. Also, E. M. Gillespie, R. M. Mirabella, and A. M. Eikenberry. “# Metoo/# Aidtoo and Creating an Intersectional Feminist NPO/NGO Sector.” 10:4 Nonprofit Policy Forum. 2019.

[17] Declaration on the Elimination of Violence against Women Proclaimed by General Assembly resolution 48/104 of 20 December 1993. Available at  https://www.ohchr.org/EN/ProfessionalInterest/Pages/ViolenceAgainstWomen.aspx

[18] Available at  https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C190.  See also Human Rights Watch, “ILO: New Treaty to Protect Workers from Violence, Harassment” (2019) June 21, 2019. Available at  https://www.hrw.org/news/2019/06/21/ilo-new-treaty-protect-workers-violence-harassment.

[19] See for example https://www.bls.gov/iif/oshwc/cfoi/workplace-violence-healthcare-2018.htm, illustrating the gendered nature of workplace homicides. See also https://wwwn.cdc.gov/WPVHC/Nurses/Course/Slide/Unit1_6, noting  mortality rates and that “studies show that health care workers, particularly nurses, are at a far higher risk of workplace violence compared to most other professions”.

This blog addresses technofixes and global health: This spring, populations worldwide have been asked to sign up to experimental and often intrusive apps to help ‘do their part’ in the struggle against Covid-19. In the wake of the demise of many Covid-19 tracking apps, critical questions must be asked about data governance, data capitalism, the rule of law and human rights in the making of these apps. Furthermore, attention must be given to gendered outcomes and costs – and how the law should reckon with them. So far, a critical feminist legal perspective has been mostly missing in the discussion of tracking apps. Taken as a mapping exercise that identifies a set of generalized issues, this blog can hopefully contribute to further such debate. 

In March and April 2020, an ecosystem of tracing apps suddenly emerged, presenting digital solutions as indispensable for winning the battle against Covid-19.  A few months later, the techno-optimism has subsided drastically, ranging from a perception that apps are problematic surveillance tools (Russia, Bahrain and Kuwait) or ineffective (Singapore, France and Iceland) to the more spectacular fiascos, such as the now-withdrawn apps used in the UK  and Norway.

On April 16th, after about a month of R & D, the Norwegian government launched the Smittestopp app.  Prime Minister Erna Solberg stated that using the app was a civic duty and 11 days later, 1.5 million adults in Norway, of a population of 5,4 million, had downloaded it. After a barrage of criticism, the app was shelved June 15^th. The app had gone from being essential for ‘getting our freedom back’ to being a ‘valuable’ tool for tracking population movements to be labelled by Amnesty International as  one of the world’s most dangerous for privacy. Using the rise and fall of the Norwegian Smittestopp app as an example, this blog points to explanations for why the Covid-19 app ecosystem is unravelling and implications for global health.

How was the rapid emergence of this ‘techno-fix’ ecosystem possible? 

Domestic conditions are important: The general panic and state-of-emergency-mindset of early March 2020 allowed for intrusive government action and combined with a high domestic trust in government and a national predilection for technofixes. However, there would have been no ecosystem unless international elite networks and powerful domestic stakeholders had worked together to make the tracing apps a transnational project.  In the Norwegian case, there is a direct link between the influential Science paper by Ferretti et al. (2020) and the work by lead author Professor Christopher Fraser at Oxford to the Smittestopp app. Fraser suggested the idea of an app to the Director of the Research Council of Norway, who recommended the app to the Director of the Norwegian Institute of Public Health. Simula, a government research lab with limited experience of producing apps, handling sensitive data management and researching epidemiology then drafted itself to develop and manage Smittestopp.

 The reasons for its demise are not alchemy

The official reasons for the death of Smittestopp concern privacy and data protection. The government and Simula also blame a sharp decline in the infection rate, making the realization of the app impossible. With technofixes, the problem is often that we speak of solutions in need of problems (and markets). This was not the case with Smittestopp, which never became the solution for anything. This was not an instance of a ‘bad fit’. Moreover, there is nothing particular about COVID-19 that ‘failed’ the app.

The reasons for failure are conventional, common and well-understood in global health. The making of Smittestopp was hasty and characterized by a lack of transparency and a concerted effort to avoid a tender process.  The technology never worked – combining GPS and Bluetooth, the app was criticized for power consumption and inadequate security. The elicitation of popular participation happened partly based on false, or at least, unclear premises. The government and Simula insisted that downloading the app was a civic duty and that refusing to do so was selfish. The intention to engage in mass data collection on population movements, which in practice turned out to be the main function of the app was not clearly communicated to the population. While Norway may be an unexpected candidate for these kinds of problems, none of this is unprecedented with respect to global health tech.

 What are the lessons for global health data governance?

Hypes around technofixes – and tracking apps in particular – are a familiar spectacle in global health.  So are their failures. However, the thorough politicization of Covid-19 responses makes the Covid-19 apps different.  On an unprecedented global scale, governments have been trading on trust and fear to make their populations download unfinished and experimental products.  As they are knocked over, one by one, the data hoarding legacy of these apps remains a reality despite their failure to ‘save lives’.

Yet, as COVID-19 will be with us for a long time, and will be followed by other pandemics, the global health quest for workable digital solutions must continue. This work becomes harder when trust has been abused.  The Global Health Community must be more critical to digital tracking and take data protection and privacy issues more seriously.

Finally, when domestic initiatives, for reasons relating to incompetence, poor planning, and bad luck failed, Big tech and the Google/Apple collaboration were left standing as the safe, responsible, and morally righteous alternative. This is a highly paradoxical outcome in a context where surveillance capitalism, including in global health, is deeply contested.

Originally posted by BMJ GH Blogs

Kristin Bergtora Sandvik, Julia Koehler-Olsen

“The lost generation of the Covid-19 pandemic is not those at risk over 65, but our children and youth, particularly at present here in Larvik municipality. We communicate with children subjected to violence by siblings, threats, mothers who cry all day, children with mentally ill parents, parents with drug and substance abuse problems, parents in violent conflict with each other, parents under enormous psychological strain due to lay-offs and financial problems and children with parents subjecting them to physical and mental violence, neglect and sexual abuse…why should we be in a care home nursing old people when the children are screaming for our help?” (letter from 19 school health nurses to Larvik Municipality April 13, 2020, the authors translation)

Medically (while more scientific studies are necessary), COVID-19 largely seems to have little impact on children. However, children have been deeply affected by the lockdowns implemented to protect everyone else’s vulnerability. There is one issue which has so far received scant attention in the Covid-19 English-language constitutional law analysis, namely that of the ramifications of domestic lockdowns for children’s constitutional protections (but here). Using Norway as a case study, we identify a set of issues and propose how a critique could have been articulated.

The 1989 Convention on the Rights of the Child (CRC), article 3, lays down that ‘in all actions concerning children […] the best interests of the child shall be a primary consideration’. States are accordingly obliged to ensure the children’s necessary protection as well as to control the institutions responsible for the execution.

While relatively few countries have explicit constitutional protection guarantees for children, the almost universal ratification of the CRC has influenced states to transform some of their obligations into constitutional recognition and protection of children’s rights on a domestic level.

CRC is a binding part of Norwegian law and its influence is reflected in the 2014 amendments of the Norwegian Constitution of 1814. According to Article 104, Children have the right to respect for their human dignity and the right to be heard. Their best interest is deemed a ‘fundamental’ consideration. Moreover, children shall have the right to receive basic education and a guarantee by the government to safeguard their individual abilities and needs (Article 109).

However, even where there are specific constitutional protections for children, such as in Norway, we are concerned that the academic community and civil society have made insufficient efforts at addressing issues through a constitutional lens. This amounts to a doubly missed opportunity, in terms of taking children’s rights seriously and in terms of getting concerns about the impact of Covid-19 lockdowns on children taken seriously.

Norway: A Covid-19 ‘success story’

So far, Norway is a COVID-19 ‘success story.’ It closed schools, businesses and international travel in mid-March, and significantly restricted freedom of movement within the country. Despite being ‘unprepared’ for a (predicted) pandemic, the health sector has coped. By the first week of April – amidst concerns about the skewed impact on immigrant populations – the outbreak was declared to be ‘under control.’ The subsequent impact has been comparatively mild. By July 1st there were 8,887 confirmed cases, 251 deaths and a total of 338,860 individuals tested. While this forceful response had immediate and severe implications for the Norwegian economy, the impact is widely expected to be partly mediated through use of the country’s sovereign wealth fund.

In the domestic Norwegian context, legal scholars have asked questions about the rule of law and human rights for example with respect to the right to health information and minorities or tracing apps and data protection. But so far, there has been no discussion of the rule of law and children.

As almost everywhere else, children were required to acquiesce to a radical reorganization not only of their home situation, social life and daily routines, but also to their education, safety and security and access to healthcare in order to protect the adult population. From the start of the lockdown on March 12, there were concerns about the heavy burden carried by children, ranging from near-abandonment by local health services and schools to being left alone with abusive or drugged adults with no recourse to assistance or escape. As feared, the effects on vulnerable children and adolescents were disproportionate and serious. A government report from April 20 found that major actors had overreacted in focusing on infection prevention to the detriment of services for vulnerable children and adolescents.

Five reports from National coordination group for services to youth and children during Covid-19 forcefully criticize unwarranted use of home office, re-assignment for child protection staff and a drastic reduction of child welfare services. However, in these reports, there is no systematic reflection on risk, vulnerability and impact assessments with respect to children’s human rights and no mention of children’s constitutional rights at all. The Norwegian Children’s ombudsperson has been highly engaged, but with limited emphasis on constitutional rights. We must do better.

1. Right to health

The children’s right to health is enshrined in the Norwegian constitution as well as in Art 24 of the CRC. States are obliged to work for the full realization of this right and to ensure the provision of necessary medical assistance and health care to all children especially the development of primary health care.

The central Norwegian governmental infrastructure for children’s health and social services is based on municipalities’ legislation, such as the Act on Health and Social Care, the Education Act and the Act on Child Welfare Services. In case a child needs more specialized health or social services, state run facilities are responsible for fulfilling the child’s rights.

The lockdown entailed a reduction of capacity to carry out or even a halt of health care services for children because of health personnel being reassigned to other tasks in municipalities. Children in need of and with the right to treatment for their mental health problems had to wait longer for receive necessary health care. Health care services for children with the need and right to compound services ceased. According to Norwegian law, municipalities are obliged to provide certain health care services to its citizens, regardless of age. Being a statutory obligation, municipalities have no discretionary power to postpone or cease those type of services, and no exemption was adopted by the government during the lockdown. Ceasing or reducing these services with no references to or consideration of children’s rights led to an absence of necessity and proportionality test, which might lead to unnecessary continuation of the violation of children’s right to health.

Moreover, migrant children’s vulnerability due to lack of measures by the authorities to lessen the impact of inequality became conspicuously visible when migrant communities where overrepresented as carriers of the COVID-19 virus in Norway in the beginning of April 2020. Children’s right to health must not be undermined as a result of discrimination.A vital part to realize children’s right to health without discrimination is the child’s access to appropriate information on health issues, closely related to children’s right to participation. Yet, at the start of the outbreak, the information provided by the government was insufficiently available, targeted and timely, in sum also jeopardizing the right to health of migrant children.

2. Right to education

Article 109 of the Norwegian Constitution states children’s right to education, reinforced by reference to international human rights documents with similar wording. The main features of state obligation in international and national law is to make primary education compulsory for children and available free to all. While this does not necessarily seem to be required considering the wording of international law and Norwegian national law, the UN Committee on Economic, Social and Cultural Rights states explicitly that primary education is a school system for the basic education of children outside the family. To educate children in available and accessible schools that provide acceptable quality and adaptableform and substance of education is an effective tool to ensure that the right to education is realized in a non-discriminatory way.

The lockdown of primary and secondary schools in mid-March resulted in an unprecedented national home schooling experiment – against the advice of public health experts – with teachers educating their pupils with the assistance of digital solutions and parents. While this appears to have worked for the majority of children, not all childrenexperienced available, interested and capable school owners, teachers and parents, when assistance was needed. To access education became dependent on adequate connectivity, data equipment, and digital competence. Nationally, the quality and amount of teacher-pupil interaction appear to have varied to an astonishing degree. Children with special needs and children living in socio-economically marginalized households faced additional barriers – including invisibilisation in government recommendations on education – and became disproportionately vulnerable to the priorities of local governments.

3. Right to safety and security

Children have the right to personal integrity according to Article 104 of the Norwegian Constitution. CRC Article 6 requires states to work in a comprehensive manner so that children are enabled to grow up in a healthy and protected manner, free from fear and want. CRC Article 19 emphasizes that State Parties must implement proper laws as well as administrative, social and educational measures to protect children from all forms of violence, both physical and mental, including in the private realm of the family, and in care homes and other institutions. According to the CRC Committee, the primary prevention of all forms of violence through public health, education, social services and other approaches is of paramount importance. A general lockdown of these services is therefore alarming with respect to the protection of children against violence.

On a national level, several professions were defined as critical to society, enabling parents working in these professions to still send their children to childcare and school. The fact, that professionals working in child welfare services were not initially included in this definition exemplifies the lack of awareness for children’s rights and state obligations.

The child welfare system reports fewer requests for help from children and youth living with violence and abuse. Children with minority and immigrant background again seem to have been disproportionately affected. The child welfare services experienced that parents started to refuse assistance because of their concerns for infection. More than half of the meetings with and follow-ups of families were cancelled particularly by families that previously had notbeen positive to interact with the Child welfare services before the outbreak.

Concluding observations

Empirically, the issue is the disproportionate impact on children and the burden they have been required to carry. Politically this concerns the legitimacy of tradeoffs between the safety, health and well-being of the majority population of non-children and the ‘minority population’ of children, and how far Norway can go in prioritizing the former. Legally, the problem is the failure to calibrate interventions and frame impact through the prism of constitutional law guarantees — and by that opening up for considerations of necessity and proportionality.

In the event of a second lockdown this fall, starting from its constitutional obligations, the government should:

• Mandate risk, vulnerability and impact assessments using CRC and the Constitution as points of departure. This means framing problem definitions and interventions with due concern for, but also awareness of children’s human rights and constitutional protections.
• Make economic investments in child sensitive testing and contact tracing strategies.
• Include jurists with children’s rights competence in all expert groups to mainstream children’s rights perspectives in all assessments of government interventions, policies and ‘Covid-19 law’.
• Include assessments of short, medium- and long-term consequences of interventions for children. In a life-course perspective a child’s experiences has large impact on its adult life. In an ethical and moral perspective, children being heavily dependent on society, their well-being must be prioritized in the struggle against Covid-19.

 

My partner and I have devised a well-meaning and comprehensive scheme to organize #1, 2 and 3, who are all primary-school age. So far, some things have worked and others not. I have quickly and deservedly been demoted from Headmaster to assistant TA (explained below). We (parents) are ambivalent about the merits of popular participation in deciding the daily schedule. I thought I would be a tad more progressive in that department. Conversations have been had with self about keeping own voice down. Kids miss their friends. Kids are amazing.

It is hard for everyone not to get anxious. Having humanitarian emergencies as my field of research, I am well aware that this is not one right here and right now. At the same time, this is uncharted territory. We don’t know how long this is going to last, and how our families will be impacted. What we do know is that this will go on for a couple of weeks, at least. Knowing that other countries are going to close schools in the coming days, here are my notes so far:

1. In the morning: Stick to normal routines but have better breakfasts. Last week, we learnt that we as adults should get dressed, fix our hair and not work from our untidied beds. Kids also need to do the same. This involves arriving at a clean desk in the morning.
2. Go for a walk! Even if it’s raining! While the overall enthusiasm for having to go for a walk at 7:30 AM might be low, they need to get some air and move about. So do you.
3. Most schools will swiftly come up with digital routines. It’s important that daily life is tailored to these routines but also that you help out with ringing the bell. Literally (this is where I got demoted – after forgetting to formally close their English session because I was selfishly engrossed in writing a blog post). Provide proper breaks. Preferable outside. Remember snacks.
4. You will and should play Lego. The kids play a lot at school. To help them spend that mental energy, engage. Quaint stuff from your childhood might merit revisiting: I have now parented for a decade-plus without ever playing with marbles. Intermittently, I have looked at the dusty bag with a guilty conscience. I used to be a marbles hoarder in primary school. Opportunity beckons.
5. Responsibilize everyone for cleaning up their mess, from tidying beds to cleaning up their plates, and if they are older, vacuuming and taking out the trash and so forth. This is going to be hard. But if there is more to do, everyone needs to do more. Consider drawing from the capitalist toolbox and offer (more) incentives. Some four-year-olds will be better at folding towels than you – believe me.
6. They – the kids – need to get physically exhausted. Set aside 90 minutes every afternoon to do something outside.
7. Although I knew this, it turns out that screen time right before bed is still not a good idea. Audiobooks are a great combination with arts and crafts. I am now working towards Easter decorations (cute bunny, eggs, chickens, hens, the Easter bunny MONSTER, Easter bunny monster paper macheé pinata, funny trolldeig chicken), Easter being the new Halloween or Christmas.
8. Have the kids call (older) relatives every day.
9. Divide the workday with your partner and stick to that division. Ideally, the person on the first shift gets up earlier. Co-schedule your Zoom and Skype sessions. BUT: accept that nobody is going to work a full day. Settle for a couple of effective hours each and be grateful to each other for making it happen.
10. Finally: be nice to yourself! In the academic department, make ridiculous lists of tasks that are VERY low-hanging fruit. I have cleaned most of my desk. With soap. I have also finally chucked out a bunch of articles I hoarded at the Harvard Law School copying center in the basement of HLS in 2004, articles I was going to read once I had finished my PhD work (2008). I am thinking the chucking represents some kind of positive act of self-awareness yet to be defined. I have made another list of outstanding peer reviews I will do next week (promise!).

Also, seriousness in the self-care department cannot be emphasized enough: Wiggle your toes. (Try. You might be surprised to discover you no longer can. Fix that.) Attempt yoga! I know that a lot of people adore Adriane – I like Erin Sampson for her no-nonsense style. However, now some amazing Norway-based yoga teachers are offering online courses. Oslo-based Lindsay Eisinger, AKA @yogaforquarantine on Instagram, is streaming live classes on weekdays, and the iYoga studio has started releasing classes in Norwegian.

All of this advice is given with the caveat that I am living in Norway, a country which has the preexisting infrastructure to make a COVID-19 lock-down feasible for most of its citizens, including economic support to parents. Additionally, I write from a two-parent household, and with extraordinary support from my employers at PRIO and the University of Oslo.

Still, I hope some of what I write here can be helpful to parents in Norway and beyond.

Stay well.

This blog was initially posted at https://blogs.prio.org/2020/03/academics-and-homeschooling-initial-notes-during-covid-19/

 

The point of departure for this blog is the apparent frequency of criminalization strategies in early government responses to the Corona virus. While much attention has been given to the securitization of global health responses – also in the case of Corona – less systematic focus has been given to the partial criminalization of infectious diseases as a strategy of global health governance.

As the scope of the Corona outbreak is broadening, the number of countries deploying criminalization measures is also rapidly increasing. China has introduced harsh regulations to deal with the Corona virus, including ‘medical-related crimes’ involving harassment and violence against medical personnel, refusal to submit to quarantine and obstructing dead body management. Singapore and Hong Kong have criminalized the breach of travel restrictions and misleading authorities or spreading false rumours.   Taiwan plans sentencing the violation of quarantines. Iran will flog or jail people who spread false rumours. A Russian prankster is facing jail-time for Corona ‘hooliganism’. In the US, prospective quarantine violators from the infamous cruise ship Diamond Princess were facing fines or jail time. Beyond governments’ need to be seen doing something in the face of public panic across the Global East and the Global North, how should we think about this propensity to reach for penal measures?

How we explain disease and whom we blame are highly symptomatic of who we are and how we organize our relations with others, in particular the practices and life forms of marginalized elements of society. This will also likely be the legacy of Corona. Moreover, current global health responses to infectious diseases remain bound up with both colonial-era and historical command-and control trajectories of response and needs to be understood in context.

In this blog, I map out three categories of criminalization.  My assumption is that the Corona response will likely involve all three in some form or other. I take the broad conceptualizations of criminalization in circulation in legal, policy and media discourse as the starting point: this includes criminal law sanctions  and administrative and disciplinary sanctions as well as popular perceptions of the uses of penal power and social ‘criminalization-talk’.  The idea is that criminalization can be understood as a strategic tool with multiple constitutive uses in the global health field.

In the following, I outline three different things that criminalization ‘does’ in the global health field, which may serve as a resource for thinking about how criminalization will shape approaches to the Corona virus.

First, I am interested in the direct and indirect criminalization of health care delivery through the criminalization of individuals infected with or suspected of being infected with specific infectious diseases. The problem with this approach is that it risks aggravating humanitarian suffering because it is either premised on criminalizing the practices and attributes of groups that are already in a marginal position, or that with infection, patients immediately become  socially or economically ‘marginalized’ which allows for criminal interventions. This category of criminalization covers transmission, exposure, interaction with ‘vulnerable groups’ (such as children), failure to disclose or simply physical movement. It relies significantly on the mobilization of othering and of metaphors of fear.  The global health response may also be undermined through the de facto criminalization of individuals by way of the use of compulsory health powers such as surveillance, contact tracing, compulsory examination and treatment, regulation of public meeting places, quarantines and forced isolation of individuals.

These regimes might be so repressive as to have severe humanitarian impact on the populations concerned. Human suffering here does not emanate from the inability to offer health care but from the human rights violations arising from how fear and stigma fuel criminalization of ‘vulnerable/deviant/threat groups (such as drug users, those with precarious migration status, sex workers and the LGBTI population) and how criminalization in turn produces further deviance and marginalization.  A characteristic of early phases of epidemics is that certain groups are singled out as risky and characterized as dangerous, allowing for repressive public health interventions.

At the same time, fear of harassment, arrest and detention may deter people from using health services.  A ‘deviant’ social status combined with health status may lead to discrimination and ill-treatment by health care providers. Criminalization is linked to high levels of harassment and violence, reported by lesbian, gay, transgender people and sex workers around the world (see here and here). Notably, in the context of HIV/AIDS, criminalization, and quarantine and individual responsibility for disclosure have been considered as key tools to halt or limit transmission, despite innovations in treatment that radically transform the nature and lethality of HIV/AIDS. Globally, prosecutions for non‐disclosure, exposure or transmission of HIV frequently relate to sexual activity, biting, or spitting. At least 68 countries have laws that specifically criminalize HIV non‐disclosure, exposure, or transmission. Thirty‐three countries are known to have applied other criminal law provisions in similar cases.

For the fast-moving but relatively low-mortality Corona-virus, these lessons indicate that a marginalized social status can contribute to exacerbating transmission and constitute a barrier to adequate health care, potentially increasing mortality.

Second, criminalization and repressive public health measures and discriminatory barriers are also a complicating factor during emergencies caused by other factors. As seen in the context of Ebola, general violence as well as violence against health care workers undermines efforts to end outbreaks. Humanitarian emergencies confront public health systems with often overwhelming challenges. In the midst of this, criminalization of individuals who are infected or perceived as risky or dangerous further compromises the ability to address preexisting epidemics and hamper transmission, thus exacerbating the impact of the overall impact of the crisis.

Third, in situations when the disease itself is the emergency, criminalization and the attendant practice of quarantines directly hampers efforts. Historically, quarantines have been used for a wide range of diseases including venereal disease, tuberculosis, scarlet fever, leprosy and cholera. Quarantines are co-constructed through the longstanding tradition of framing infectious disease through criminalization, whereby stigma, medicalization and incarceration have worked together to produce colonial bodies construed as racial and sexual threats to national security (see here and here). Quarantine was a widely employed tool against Ebola in Sierra Leone and Liberia.  As noted  by commentators, according to the logic underlying quarantines ‘subjects marked as abnormal, diseased, criminal, or illicit should be isolated for their own betterment and for the collective good’. While resistance becomes a proof of deviance and of the necessity of segregation, in the case of Ebola, quarantines may compel fearful communities to hide  suspected cases. In the contemporary context, with an international human rights framework on health suggesting that rights-based approaches to disease prevention and mitigation should be foregrounded,  problematic tradeoffs between criminalization-oriented public health measures and fundamental rights and liberties are likely to proliferate, as illustrated by the US government’s budding ‘war on Corona’.

This blog has provided an initial map of how criminalization may shape the Corona response. In sum, when criminalization is pegged directly onto suffering human bodies, criminalization hinders global health interventions in three ways. Criminalization might be so repressive that it has severe health-related impacts on the populations concerned. Criminalization also undermines and exacerbates challenges already faced by the public health infrastructure during an emergency. Finally, the repercussions of criminalization are most impactful in situations when the disease itself is the humanitarian crisis and where criminalization directly hampers efforts to contain and mitigate epidemics.

This blog was initially published by International Health Policies https://www.internationalhealthpolicies.org/blogs/governing-global-health-emergencies-the-role-of-criminalization/

Kristin Bergtora Sandvik and Kjersti Lohne

How can education help to realize the multiple goals and visions of transitional justice, and how can transnational justice be adapted to new educational objectives?

During November 2019, scholars from the University of Pristina and the University of Oslo met at the Faculty of Law in Pristina to discuss the role of universities in educating for peace. Taking this dialogue between two very different experiences of mass violence – Kosovo with war and oppression, and Norway with a terror attack as its point of departure – this blog discusses what it means to teach transitional justice in a new decade, and the merits of applying transitional justice perspectives to new domestic contexts that are not used to think of themselves as ‘transitional’.

Transitional justice has primarily been a toolkit for post-conflict justice such as the Kosovo context. As noted by Human Rights Watch 20 years on, civilians paid a hefty price: In 1998 and 1999 between 90% of the Kosovar population of 2 million was displaced by Serbian forces and around 13 000 people were killed. An estimated 1653 remain missing. Sexual violence and torture were widespread. Only few individuals have been tried and convicted for their role in the atrocities. Trauma and the effects of political violence and impunity continue to shape Kosovar society today.

22 July 2011, the Norwegian terrorist Anders Behring Breivik detonated a car bomb in the Oslo government district, which killed eight people, injured about 200 and led to significant material destruction. Breivik then travelled to the Labour Party’s Youth Organization (AUF) summer camp at Utøya Island, where dressed up as a police officer, he massacred 69 individuals, including 50 children. Thousands of survivors, relatives, rescuers and bystanders remain deeply affected. Since 2011, numerous terrorists have claimed 22 July as a source of inspiration (here, here or here).

Kosovo and Norway cannot be directly compared: The type of crime, scale of violence and suffering is vastly different, and so is the state’s ability to respond. Moreover, while Breivik was Norwegian, the war in Kosovo was between different entities, which affects how respective communities deal with the legacy of violence in its aftermath. However, a dialogue between the two contexts is both timely and appropriate. The experience of Norway after the 22 July 2011 terror attack, and that of other countries recovering from similar mass casualty terror attacks, suggests that transitional justice might have a place in the aftermath of violent political extremism in otherwise established democracies. The political nature of this type of violence engenders difficult questions as to who is an insider and outsider in a given domestic context, and narratives of belonging, responsibility and harm shift over time.

Kosovar and Norwegian educators both grapple with a contemporary context where the production of knowledge and truth claims – as well as the legitimacy and authority of higher education itself – are contested. At a fundamental level, this concerns how we live together, respect each other’s humanity and work towards consensus on versions of the past and of the future.

Integrating transitional justice and education

Transitional justice is many things to many people. The most widely applied definition is the one offered by the UN, seeing transitional justice as a first and foremost a process, and referring to ‘the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’. Observant scholars have taken issue with how transitional justice processes are incrementally framed in legal discourse. The UN Office of the High Commissioner for Human Rights (OHCHR), for example, refer to transitional justice as ‘judicial and non-judicial mechanisms, including prosecution initiatives, reparations, truth-seeking, institutional reform, or a combination thereof’, and assert that ‘Whatever combination is chosen must be in conformity with international legal standards and obligations’.

At the same time, influential actors such as the International Center for Transitional Justice (ICTJ) stress that transitional justice is about ‘putting victims and their dignity first’ and asking ‘the most difficult questions imaginable about law and politics’. They see such difficult yet necessary questioning as signaling ‘the way forward for a renewed commitment to make sure ordinary citizens are safe in their own countries – safe from the abuses of their own authorities and effectively protected from violations by others’. The Humanitarian Law Center understands transitional justice to be about ‘dealing with the past to build the future.’ In a similar vein, and as stated by one of the Kosovar workshop participants, transitional justice is about helping ‘to reveal the truth and what has happened’.

Within this diversity of transitional justice objectives, the role of education is gaining increasing traction – both as a question of developing didactics for teaching transitional justice, and of conceptualizing education as a key sector alongside other societal institutions and sectors subject to transitional justice processes. However, this is a relative new development, and much work still needs to be done. As Elizabeth A. Cole and the ICTJ have pointed out, ‘The field has moved from discursively recognizing the importance of education (though placing it beyond the ambit of transitional justice practice temporally and philosophically) to trying to find models for active engagement with it’. 

The case of Kosovo

As a nation, Kosovo remains in a precarious position as it grapples with its past, present and future. With respect to terror attacks, the challenge for otherwise established democracies in Europe also take on temporal and continuous elements: each new attack shapes possible futures by way of creating cultures of fear, but also by legitimating the exclusion of ‘deserving’ victims or individuals deemed ‘complicit’ merely by way of their membership in ethnic, social or religious groups. How do we educate students about restoration, accountability and justice when we are always suspended somewhere between the last terror attack – and the next?

Asking our hosts this question, the answer is that we must hold onto the idea that transitional justice, regardless of the violent context, must come from below.

First, we must accept that this will be messy, unfinished and not always successful – also in an educational context. An important but often overlooked part of what it means to do transitional justice from below is the productive role of mistakes – and the importance of discussing them. As suggested by participants to the conference, mistakes do happen – there are perhaps even necessary pathways to learning. Yet, mistakes – or lack of professionalization – can hamper or completely undermine the transitional justice effort too. Participants noted that the most obvious examples concern recovery and identification of dead bodies or the restoration and protection of cultural heritage. As explained by a practitioner working with survivors of sexual violence, there are specific instances where the overarching principle is to ‘do no harm’ and where no mistakes are permitted: ‘we can’t make mistakes – that would compromise the women’.  To retain a conscious relationship with the role of mistakes and professionalization alike was thus a recurring topic in Kosovo.

However, these statements also point to the possible tensions between the emphasis on transitional justice being locally embedded and professionalized at the same time – which again lead to broader questions about the role of the state. From the Kosovar perspective, learning to carry out the tasks of transitional justice in parallel with doing nation-building takes time – in part because externally funded institutions come and go. From the perspective of established democracies that are increasingly characterized by post-welfare, neoliberal governance, questions about local ownership and professionalization are as pertinent.

A final concern was the challenging role of education in a time of contested knowledge production. In post-conflict settings, there are often contestations over history. Today, technology too exacerbates tensions over truth claims and historic narratives in Kosovo and Norway alike. Among participants, including students, there was concern of ‘history repeating itself’, with visible signs of tensions and ‘othering’ across the European continent. Participants reflected on why this is happening again, and what can be done about it. Some participants suggested that human rights offered a language – a normative baseline – for continuing dialogue in spite of conflicting ‘truths’ and world views – even in the classrooms. Holding on to human rights as a normative bulwark in education may strengthen its foundation also beyond the classroom. This speaks to a fundamental tenet of teaching transitional justice, namely the importance of continuing, recognizing that ‘not to stop’ is an objective in and of itself.

Observations

The post-violence contexts of Kosovo and Norway are very different. What can we do with these types of exchanges? We suggest that if imagined and articulated correctly, the juxtaposition between violent conflict and violent extremism opens a space for critical discussions about citizenship, belonging and the imagination of the nation-state as inclusive, accountable—and just.  After all, education is of significant structural and societal importance as a site of justice and injustice alike, and as such, carries potential as both a key form and site of reparation and transition. Pablo Freire has noted that by focusing on participants’ life experiences, such an approach may affirm participants’ dignity and recognize that all in the room are teachers and learners alike. While the pedagogy of teaching transitional justice in a violent extremism context is made complicated by the lack of a clear ending – and the impossibility of guaranteeing non-repetition – learning from practitioners and thinking with the perspectives of transitional justice offers a road forward.

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This blog was initially posted at http://blog.associatie.kuleuven.be/ltjb/teaching-transitional-justice-after-conflict-and-terror-cases-of-kosovo-and-norway/

Kristin Bergtora Sandvik and Kjersti Lohne are co-organizers of an initiative called LAW22JULY – where LAW stands for learning, accountability, witnessing – based at the Faculty of Law at the University of Oslo in Norway. The flagship project is LAW22JULY: RIPPLES (Rights, Institutions, Procedures, Participation, Litigation:Embedding Security) starting in 2020. 

The recent incident of a UNHCR official tweeting a photo of an Iraqi refugee girl holding a piece of paper with all her personal data, including family composition and location, is remarkable for two reasons. First, because of the stunning indifference and perhaps also ignorance displayed by a high-ranking UN communications official with respect to a child’s personal data. However, the more notable aspect of this incident has been the widespread condemnation of the tweet (since deleted) and its sender, and her explanation that it was “six years old”. While public criticism has focused on the power gap between humanitarians and refugees and the precarious situation of Iraqi refugees, this incident is noteworthy because it marks the descent of a new figure in international aid and global governance: that of children’s digital bodies.

Because children are dependent, what technology promises most of all is almost unlimited care and control: directly by parents but indirectly by marketing agencies and tech companies building consumer profiles. As explained by the Deborah Lupton, in the political economy of the global North (and, I would add, the global East), children are becoming the objects of a multitude of monitoring devices that generate detailed data about them. What are the possible negative ramifications in low resources contexts and fragile settings characterized by deep-seated oversight and accountability deficits?

The rise of experimental practices: Ed. Tech, babies and biometrics

There is a long history of problematic educational transplants in aid context, from dumping used text books to culturally or linguistically inappropriate material. The history of tech-dumping in disasters is much more recent, but also problematically involves large-scale testing of educational technology platforms. While practitioners complain about relevance, lack of participatory engagement and questionable operability in the emergency context, ethical aspects of educational technology (Ed. Tech), data extraction—and how the collection of data from children and youth constitute part of the merging of aid and surveillance capitalism—are little discussed.

Another recent trend concerns infant biometric identification to help boost vaccination rates. Hundreds of thousands of children die annually due to preventable diseases, many because of inconsistencies in the provision of vaccine programs. Biometric identification is thus intended to link children with their medical records and overcome the logistical challenges of paper-based systems. Trials are now ongoing or planned for India, Bangladesh and Tanzania. While there are still technical challenges in accurately capturing the biometric data of infants, new biometric techniques capture fingers, eyes, faces, ears and feet. In addition to vaccines, uses for child biometrics include combatting aid fraud, identifying missing children and combatting identity theft.

In aid, data is increasingly extracted from children through the miniaturization and personalization of ICT technology. Infant and child biometrics are often coupled with tracking devices in the form of wristbands, necklaces, earpieces, and other devices which the users carry for extended periods of time.

Across the board, technology initiatives directed at children are usually presented as progress narratives, with little concern for unintended consequences. In the economy of suffering, children and infants are always the most deserving individuals, and life-saving interventions are hard to argue against. Similarly, the urgency of saving children functions as a call to action that affords aid and private sector actors room to maneuver with respect to testing and experimentation. At the same time, the mix of gadget distribution and data harvesting inevitably become part of a global data economy, where patterns of structural inequality are reproduced and exacerbated.

Children’s digital bodies

Despite the massive technologization of aid targeting children, so far, no critical thinking has gone into considering the production of children’s digital bodies in aid. The use of digital technologies creates corresponding “digital bodies”—images, information, biometrics, and other data stored in digital space—that represent the physical bodies of populations affected by conflict and natural hazards, but over which these populations have little say or control. These “digital bodies” co-constitute our personalities, relationships, legal and social personas—and today they have immense bearing on our rights and privileges as individuals and citizens. What is really different about children’s digital bodies? What is the specific nature of risk and harm these bodies might incur?

In a non-aid context, critical data researchers and privacy advocates are only just beginning to direct attention to these practices, in particular to the array of specific harms they may encounter, including but not limited to the erosion of privacy.

Technology initiatives directed at children are usually presented as progress narratives, with little concern for unintended consequences.

The question of testing unfinished products on children is deeply contentious: the possibility that unsafe products may be trialed in fragile and low resource settings under different requirements than those posed by rich countries is highly problematic.  On the other hand, parachuting and transplanting digital devices from the global North and East to the global South without any understanding of local needs, context and adaption practices is—based on the history of technological imperialism—ineffective, disempowering, a misuse of resources and, at worst, could further destabilize fragile school systems.

Very often, in aid tech targeting children, the potential for digital risk and harm for children is ignored or made invisible. Risk is phrased as an issue of data security and malfunction and human manipulation of data. Children—especially in low-resource settings—have few opportunities to challenge the knowledge generated through algorithms. They also have scant techno-legal consciousness with respect to how their personal data is being exploited, commodified and used for decisions about their future access to resources, such as healthcare, education, insurance, welfare, employment, and so on. There is the obvious risk of armed actors and other malicious actors accessing and exploiting data; but there are also issues connected to wearables, tablets and phones being used as listening devices useful for surveilling the child’s relatives and careers. It is incumbent on aid actors to understand both the opportunities posed by new technologies, as well as the potential harms they may present—not only during the response, but long after the emergency ends.

Conclusion: time to turn to the CRC!

The mainstreaming of a combination of surveillance and data extraction from children now taking place in aid, ranging from education technology to infant biometrics means that critical discussions of the ethical and legal implications for children’s digital bodies are becoming a burning issue.

The do no harm principle is a key ethical guidance post across fields of development, humanitarianism and global health. The examples above illustrate the need for investment in ethics and evidence on the impact of development and application of new technologies in low resource and fragile settings.  Practitioners and academics need to be alert to how the framing of structural problems shifts to problematizations being amenable to technological innovation and intervention and the interests of technology stakeholders.  But is that enough?

The Children’s Rights Convention of 1989 represented a watershed moment in thinking children’s right to integrity, to be heard and to protection of their physical bodies. Article 3.1 demands that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” Time has now come to articulate and integrate an understanding of children’s digital bodies in international aid within this normative framework.

 

This blog was initially posted at https://www.openglobalrights.org/protecting-childrens-digital-bodies-through-rights/