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ABSTRACT
This paper argues that personal actualisation of human and personal rights articulated in key internationally recognised policy instruments is significantly impeded without similar recognition of individual rights ‘in and to records’. It reports on a study in which archival literary warrant analysis was applied top-down on 19 such instruments and on professional international guidelines for archiving records relevant to human rights. Warrant was also derived bottom-up from media and personal accounts of documentation and recordkeeping challenges faced by refugees. Based on the results of these analyses, a platform of proposed refugee rights in and to records was derived. These rights are presented together with the warrants from which they were derived, and also juxtaposed with other frameworks emanating out of peace research as well as information, data and machine learning communities in order to demonstrate where there is overlap and divergence in recommendations. Further research is necessary to test whether such a framework addressing refugees’ needs is sufficiently inclusive to encompass any context in which documentation and recordkeeping play key roles in enabling and actualising human rights, and whether rights in and to records should themselves be recognised as fundamental human rights.
Disclosure statement
No potential conflict of interest was reported by the authors .
Notes on contributors
Anne J. Gilliland is Associate Dean for Information Studies and a Professor and Director of the Center for Information as Evidence in the Graduate School of Education & Information Studies, University of California, Los Angeles. She also directs the Refugee Rights in Records (R3) Project in collaboration with Liverpool University Centre for Archive Studies (LUCAS). Her research addresses recordkeeping and archival systems and practices in support of human rights and daily life in post-conflict settings, particularly in the countries emerging out of the former Yugoslavia, and rights in records for forcibly displaced persons; the role of community memory in promoting reconciliation in the wake of ethnic conflict; and bureaucratic violence and the politics of metadata.
Kathy Carbone is a Postdoctoral Scholar and Lecturer in the Department of Information Studies at the University of California, Los Angeles and a researcher with the Refugee Rights in Records (R3) Project. Her research interests focus on the intersection of archives, broadly conceived, with contemporary art practices, memory and identity productions, migration, social justice, and human rights.
Notes
1 Pamela Neumann, ‘When Laws Are Not Enough: Violence against Women and Bureaucratic Practice in Nicaragua’, Social Forces 95, no. 3 (March 2017): 1105–25. https://doi.org/10.1093/sf/sow082; David Graeber, The Utopia of Rules (Brooklyn: Melville House, 2015); Akhil Gupta, Red Tape: Bureaucracy, Structural Violence, and Poverty in India (Durham: Duke University Press, 2012); Hope A. Olson, ‘Sameness and Difference: A Cultural Foundation of Classification’, Library Resources & Technical Services 45 no. 3 (2001): 115–22. doi:10.5860/lrts.45n3.115; Amnesty International and Access Now, Toronto Declaration: Protecting the Rights to Equality and Non-discrimination in Machine Learning Systems, 2018, https://www.accessnow.org/the-toronto-declaration-protecting-the-rights-to-equality-and-non-discrimination-in-machine-learning-systems/.
2 See, for example, the work of WORLD, https://www.worldpolicycenter.org/about/about-world.
3 ‘Recordkeeping’ is the term used in the field of archival and recordkeeping studies to refer to all the processes associated with conceptualising, creating, managing, preserving and otherwise carrying out bureaucratic and archival processes within and across organisations, places and time.
4 Mark Latonero and Paula Kift, ‘On Digital Passages and Borders: Refugees and the New Infrastructure for Movement and Control’, Social Media + Society 4, no. 1 (March 2018), https://doi.org/10.1177/2056305118764432.
5 Dragana Kaurin, ‘Data Protection and Digital Agency for Refugees’, World Refugee Council Research Paper No. 12 (May 2019), https://issuu.com/cigi/docs/wrc_research_paper_no.12.
6 Kaurin, ‘Data Protection and Digital Agency for Refugees’, 3.
7 All are referred to for brevity in this paper as ‘refugees’, but in full recognition of the several status categories into which an individual who has experienced forced displacement or fled due to actual or credible fear of persecution might fall or be placed.
9 Kimberli M. Kelmor, ‘Legal Formulations of a Human Right to Information: Defining a Global Consensus’, Journal of Information Ethics 25, no. 1 (2016): 111.
10 These terms echo and reinforce those used in the 2013 SwissPeace Archives project report, A Conceptual Framework for Dealing with the Past, http://archivesproject.swisspeace.ch/fileadmin/user_upload/archivesproject/Publications/DwP_Conceptual_Framework_October2012.pdf.
11 Johannes Britz, Anthony Hoffman, Shana Ponelis, Michael Zimmer, and Peter Lor, ‘On Considering the Application of Amartya Sen’s Capability Approach to an Information-based Rights Framework’, Information Development 29, no. 2 (2012): 107.
12 Anne J. Gilliland. ‘A Matter of Life and Death: A Critical Examination of the Role of Official Records and Archives in Forced Displacement’, Journal of Critical Library and Information Studies 2 (2017), http://libraryjuicepress.com/journals/index.php/jclis/issue/view/2; Nathan Mnjama. ‘The Orentlicher Principles on the Preservation and Access to Archives Bearing Witness to Human Rights Violations’, Information Development 24, no. 2 (2008): 212–35.
13 Anne J. Gilliland and James Lowry, ‘Human Security Informatics, Global Grand Challenges and Digital Curation’, Proceedings of the International Digital Curation Conference (IDCC) 2019, Melbourne.
14 Trudy Huskamp Peterson, Final Acts: A Guide to Preserving the Records of Truth Commissions (Baltimore: Johns Hopkins University Press, 2005); International Council on Archives, Archives and Human Rights Working Group, Basic Principles on the role of Archivists and Records Managers in support of Human Rights, updated October, 2016, https://www.ica.org/en/basic-principles-role-archivists-and-records-managers-support-human-rights.
15 Anne J. Gilliland, ‘Acknowledging, Respecting, Enfranchising, Liberating and Protecting: A Platform for Radical Archival Description’ (paper presented at the Radical Archives Conference, Asian/Pacific/American Institute at New York University, April 2014); Anne J. Gilliland and Sue McKemmish, ‘The Role of Participatory Archives in Furthering Human Rights, Reconciliation and Recovery’, Atlanti: Review for Modern Archival Theory and Practice 24 (2014): 79–88, and Anne Gilliland and Sue McKemmish, ‘Rights in Records as a Platform for Participative Archiving’, in Archival Education and Research: Selected Papers from the 2014 AERI Conference, ed. Richard J. Cox, Alison Langmead, and Eleanor Mattern (Sacramento: Litwin Press, 2015), 355–85; Gregory Rolan, ‘Agency in the Archive: A Model for Participatory Recordkeeping’, Archival Science 17, no. 3 (2017): 195–225.
17 Article 12: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. http://www.un.org/en/universal-declaration-human-rights/.
18 Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
19 For data protections laws around the world, See DLA Piper, “Data Protection Laws of the World”: https://www.dlapiperdataprotection.com/.
20 One such example is Article 8 of the Charter of Fundamental Rights of the European Union (2000), which states: 1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. https://ec.europa.eu/info/aid-development-cooperation-fundamental-rights/your-rights-eu/eu-charter-fundamental-rights_en. See also: S. Rodota, ‘Data Protection as a Fundamental Right’, in Reinventing Data Protection? ed. S. Gutwirth et al. (Dordrecht: Springer, 2009), 77–82.
21 UN Office for the Coordination of Humanitarian Affairs (OCHA), ‘Humanitarianism in the Network Age’, OCHA Policy and Studies Series (United Nations, 2013), 60.
22 For example, the UN General Assembly: Guidelines for the Regulation of Computerized Personal Data Files (1990), International Standards on the Protection of Personal Data and Privacy (the Madrid Resolution) (2009), the OECD Privacy Framework (2013), and the Policy on the Protection of Personal Data of Persons of Concern to the UNHCR (2015).
23 37th International Conference of Data Protection and Privacy Commissioners, “Resolution on Privacy and International Humanitarian Action”, Amsterdam, 27 October 2015 (ICDPPC Resolution). https://icdppc.org/wp-content/uploads/2015/02/Resolution-on-Privacy-and-International-Humanitarian-Action.pdf.
24 Christopher Kuner et al., ‘Data Protection and Humanitarian Emergencies’, International Data Privacy Law 7, no. 3 (2017): 147.
25 Vincent Bernard, ‘Migration and Displacement: Humanity with Its Back to the Wall’, International Review of the Red Cross 99, no. 904 (2017): 8.
26 Christopher Kuner and Massimo Marelli, eds., Handbook on Data Protection in Humanitarian Action (Geneva: International Committee of the Red Cross and Brussels Privacy Hub, 2017), 15.
27 Stephanie Simms and Sarah Jones, ‘Next-generation Data Management Plans: Global Machine-actionable FAIR’, International Journal of Digital Curation 12, no. 1 (2017): 36–45; European Research Council, Scientific Council, Open Research Data and Data Management Plans, 2018. https://erc.europa.eu/sites/default/files/document/file/ERC_info_document-Open_Research_Data_and_Data_Management_Plans.pdf.
28 Brett Solomon, ‘Digital IDs are More Dangerous than You Think’, Wired, September 2018. https://www.wired.com/story/digital-ids-are-more-dangerous-than-you-think/.
30 David Miller, ‘Is there a Human Right to Immigrate?’ in Migration in Political Theory: The Ethics of Movement and Membership, ed. Sarah Fine and Lea Ypi, Oxford Scholarship Online, 2016, doi:10.1093/acprof:oso/9780199676606.003.0002.
31 Rolan, ‘Agency in the Archive.’
32 Wendy Duff and Kate Cumming, ‘Respect My Authority’, in Research in the Archival Multiverse, ed. Anne J. Gilliland, Sue McKemmish, and Andrew J. Lau (Melbourne: Monash University Press, 2016), 456–78.
33 Duff and Cumming, ‘Respect My Authority’, 460.
34 For a report on the Arabic media sources collected, see Sakena Alalawi, ‘Struggles with Documents: A Review of Documentation Issues Affecting Refugees and Displaced Persons from Arab Middle East Countries’, Refugee Rights in Records Project, June 2018, https://ucla.app.box.com/s/b2qz4ny5rh8nyuyal0x32syr3cpcvvho.
35 https://www.ica.org/en/basic-principles-role-archivists-and-records-managers-support-human-rights.
36 Amnesty International reports that in 2017 and 2018, U.S. Customs and Border Protection (CBP) initiated ‘a de facto policy of turning away thousands of people seeking asylum at official ports-of-entry along the entire US-Mexico border … forcing people back to Mexico without registering and determining their asylum claim’. Moreover, since 2017, US asylum-seekers face indefinite and mandatory detention during the processing of their asylum claims. Amnesty International, ‘USA: Catastrophic Immigration Policies Resulted in More Family Separations than Previously Disclosed’. https://www.amnestyusa.org/reports/usa-catastrophic-immigration-policies-resulted-in-more-family-separations-than-previously-disclosed/ [emphasis in original].
37 Gilliland, ‘A Matter of Life and Death’; Gilliland and Lowry, ‘Human Security Informatics, Global Grand Challenges and Digital Curation’.
38 This policy is also in violation of human rights law – Articles 5, 9, and 12 of the Universal Declaration of Human Rights. http://www.un.org/en/universal-declaration-human-rights/.
39 Chris Cillizza, ‘The Remarkable History of the Family Separation Crisis’, CNN Politics, June 18, 2018, https://www.cnn.com/2018/06/18/politics/donald-trump-immigration-policies-q-and-a/index.html.
40 Donald J. Trump, ‘Affording Congress an Opportunity to Address Family Separation’, (The White House, June 20, 2018), https://www.whitehouse.gov/presidential-actions/affording-congress-opportunity-address-family-separation/; Joshua Barajas, ‘How Trump’s Family Separation Policy Became What It Is Today’, PBS News Hour, June 21, 2018, https://www.pbs.org/newshour/nation/how-trumps-family-separation-policy-has-become-what-it-is-today.
41 During the peak of the family separation policy and reunification efforts there were varying reports as to the total number of children taken from their families – ranging from 2551 to more than 3700. A recent report by Amnesty International (October 11, 2018) however, confirms that between April 19 and August 15, 2018 the Trump administration separated 6000 families at the US-Mexico border. See: Nick Miroff, Amy Goldstein, and Maria Sacchetti, ‘“Deleted” Families: What Went Wrong with Trump’s Family-Separation Effort’, The Washington Post, July 28, 2018, https://www.washingtonpost.com/local/social-issues/deleted-families-what-went-wrong-with-trumps-family-separation-effort/2018/07/28/54bcdcc6-90cb-11e8-8322-b5482bf5e0f5_story.html?utm_term=.901fb7fe67ea; Office of Inspector General, ‘Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy’, (U.S. Department of Homeland Security, September 27, 2018), 3–4, https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18-84-Sep18.pdf; Ryan Devereaux, ‘The U.S. Has Taken More than 3700 Children From Their Parents – And Has No Plan For Returning Them’, The Intercept, June 19, 2018, https://theintercept.com/2018/06/19/children-separated-from-parents-family-separation-immigration/. Amnesty International, ‘USA: Catastrophic Immigration Policies Resulted in More Family Separations than Previously Disclosed’, October 11, 2018, https://www.amnesty.org/en/latest/news/2018/10/usa-treatment-of-asylum-seekers-southern-border/.
42 Chronicle Editorial Board, ‘The Trump Administration Wants to Resurrect Family Separation Policy’, San Francisco Chronicle, October 15, 2018, https://www.sfchronicle.com/opinion/editorials/article/Editorial-The-Trump-administration-wants-to-13309503.php.
43 Caitlin Dickerson, ‘Hundreds of Immigrant Children Have Been Taken from Parents at U.S. Border’, New York Times, April 20, 2018, https://www.nytimes.com/2018/04/20/us/immigrant-children-separation-ice.html (italics ours).
44 Department of Homeland Security (DHS) Office of Inspector General, ‘Special Review – Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy’, https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18-84-Sep18.pdf.
45 Ryan Devereaux, ‘The U.S. Has Taken More than 3700 Children From Their Parents – And Has No Plan For Returning Them’.
46 Candice Bernd, ‘Indigenous Asylum Seekers Face Language Barriers and a Legacy of Oppression at the Border’, Truthout, July 26, 2018, https://truthout.org/articles/torn-away-traumatized-and-tongue-tied-seeking-asylum-while-indigenous/.
47 SwissPeace, A Conceptual Framework for Dealing with the Past.