The Right to Love: Over and under-criminalisation in the sexual autonomy of persons with intellectual disabilities

This post originally appeared on the Human Rights in Ireland blog. Alan Cusack is a PhD candidate and IRC Scholar in the School of Law, UCC. He is a member of the Centre for Criminal Justice and Human Rights.

To mark International Day of Persons With Disabilities, award-winning Galway production company Blue Teapot will stage a special performance of Sanctuary, written by Christian O’Reilly, this coming Wednesday night in the Liberty Hall Theatre, Dublin. The play tells the story of Larry and Sophie- two adults with intellectual disabilities- who, in the course of a daytrip to the cinema convince their care worker, Tom, to book them a hotel room so that they may have some private time together. Superbly written by O’Reilly and sublimely delivered by Charlene Kelly and Kieran Coppinger- both of whom have an intellectual disability- Sanctuary offers a funny, touching and human account of the barriers which unmarried adults with intellectual disabilities continue to face in Ireland.

At present, under Irish law, persons with an intellectual disability are faced with the threat of criminal prosecution if they engage in a sexual relationship with a person to whom they are not married. This highly draconian state of affairs owes its origin to section 5 of the Criminal Law (Sexual Offences) Act 1993 (hereinafter ‘the Act’) which explicitly criminalises the sexual activity of persons who, to quote the Act, have a ‘mental impairment’. Significantly, section 5 is a strict liability offence which means, in effect, that the fact that the parties consented to the sexual intimacy is not, of itself, a valid defence. No criminal offence is committed however if the parties are married to each other, or if the victim is shown to be capable of living independently and protecting him or herself against abuse.

Criticisms of the Act can be brought on two seemingly competing, but entirely legitimate grounds; that it both under-criminalises and over-criminalises this sensitive area of sexual activity. In relation to the former argument the Act has rightly been criticised, by academics and advocacy groups alike, for fundamentally failing to recognise that persons with an intellectual disability can engage in consensual sexual activity. Indeed this over-criminalisation of a person sexual autonomy was expressly acknowledged by the Law Reform Commission in its 2005 Consultation Paper, where it noted that

“a regrettable effect of section 5 of the 1993 Act is that, outside a marriage context, a sexual relationship between two ‘mentally impaired’ persons may constitute a criminal offence because there is no provision for consent as a defence in respect of a relationship between adults who were both capable of giving a real consent to sexual intercourse” (Law Reform Commission, Consultation Paper on vulnerable Adults and the Law: Capacity (Dublin: Law Reform Commission, 2005) at p.141).

Although no known prosecutions have been taken under the Act to date, the continued existence of this offence on our statute book has been strongly criticised- most notably by Inclusion Ireland- for cultivating a fear amongst care workers, family members and persons with an intellectual disability of engaging in any act which might be considered to facilitate such sexual activity. In the words of Senator Katherine Zappone, the Act has perpetuated, a “chilling effect” whereby persons with intellectual disabilities within Irish society are fearful of forming relationships (The Irish Times, 10 June 2014).

In addition, in relation to the latter argument- the theory that the Act under-criminalises this area of sexual autonomy- section 5 has been criticised for offering insufficient protection for persons with an intellectual disability. Indeed, as the Act only applies to sexual intercourse and buggery, there is an evident and palpable gap whereby the instrument fails to criminalise unwanted sexual contact more generally. The tragic consequences of this legislative gap were recently illustrated in the case of The People (DPP) v XY (Central Criminal Court, 15 November 2010, The Irish Times 16 November 2010). In this case the accused was alleged to have forced a woman with an intellectual disability to perform oral sex with him. As this form of sexual conduct did not come within the scope of section 5 of the Act, the accused was charged with an offence under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. On this issue White J., in his judgment, noted that “the Oireachtas when they introduced the 1993 act did not fully appreciate the range of offences needed to give protection to the vulnerable”. In the particular circumstances of this case, given that there was no evidence of assault or a hostile intent on the part of the accused, the trial judge directed the jury to acquit the defendant stating that it was no appropriate for the judiciary to fill the “lacuna in the law”.

From an international perspective, it is unquestionable that section 5 of the Act is in breach of Article 23 of the UN Convention on the Rights of Persons with Disabilities (hereinafter ‘UNCRPD’) which expressly requires State Parties to take “effective and appropriate measures” to eliminate discrimination against persons with disabilities “in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others”. Moreover, it is arguable that the Act is in breach the principle of equal recognition as enshrined in Article 12 of the Convention as it fails to respect the decision-making autonomy of persons with intellectual disabilities in the same way that the decisions of non-disabled persons are respected.

In light of its overtly discriminatory effect, section 5 of the Act has long been criticised for representing a disproportionate interference with the sexual autonomy of persons with intellectual disabilities. For instance, Inclusion Ireland has been vocal in its opposition of this provision since 2003 when the group argued in its consultation document ‘Who Decides and How’ that the existing law was overly onerous and insensitive. Similarly, the Law Reform Commission, in its Consultation Papers from 2005 and 2011 respectively, criticized the burdensome and discriminatory effects of the Act. In particular, in its 2011 Consultation Paper, Sexual Offences and Capacity to Consent: Consultation Paper, the Commission recommended that section 5 be replaced by a new provision which would cover all forms of sexual acts. Moreover the Commission recommended that “there should be a strict liability offence for sexual acts committed by a person who is in a position of trust or authority with another person who has an intellectual disability” (at p.179).

There is, however, a reason to be hopeful. Significantly, and in a long-overdue response to this growing body of public criticism, our legislature has recently expressed its commitment to reforming this sensitive area of law. The primary impetus for this belated, but very welcome, legislative activism can be attributed to Senator Katherine Zappone who, on 13 May 2014, published a new bill to reform this area of law, namely the Criminal Law (Sexual Offences) Bill, 2014 (‘the Bill’). Colloquially dubbed, the “right to love” bill, this legislation is aimed at reforming our law so as to ensure that persons with an intellectual disability have the same freedom to consent to sexual activity as persons without a disability. In this regard, it is expected that the bill will strike a better balance in respecting the sexual agency of a person with an intellectual disability while also providing an important safeguard against sexual abuse.

The Bill- which was researched by Dr. Eilionóir Flynn and Anna Arstein-Kerslake of the Centre for Disability Law and Policy at NUIG and Dr. Brian Hunt- seeks to amend our subsisting draconian law in two key respects. Firstly, and perhaps most importantly, the Bill will repeal section 5 of the Act and will create a disability-neutral offence of abuse of a position of dependence and trust for sexual purposes. This reform is directly reflective of the Law Reform Commission’s recommendation in 2011. Secondly, the Bill will redesign the concept of consent for the purposes of sexual activity so as to make this concept universally applicable so that the same standard will apply to all persons equally. Significantly, in this regard, the Bill removes any consideration of a person’s mental capacity in determining questions of consent for sexual purposes. This marks a fundamental amendment to our subsisting legal position whereby, under our current law, it must first be established that a victim has ‘capacity’ to consent before any consideration can be given to the substantive question as to whether in fact any meaningful consent existed.

While these draft provisions are to be welcomed for representing a carefully considered and long-overdue reformative programme for this very sensitive area of sexual activity, the final form which these protections will take in the official version of the Bill remains to be seen. The Heads and General Scheme of the Bill were formally published by Minister Frances Fitzgerald on 27 November 2014, however, it is notable that the wording of Head 12- the section of the Bill dealing with vulnerable persons- had not yet been finalised by this date. Thus, it is not yet clear if, and to what extent, the measures contained in Senator Zappone’s draft bill will be retained in the official version of the instrument. Regardless, however, of the specific form which the final provision takes, the Minister has solemnly pledged that the new proposal will “seek to better balance the need to respect the independence of the intellectually disabled while ensuring their protection from sexual exploitation”. Thus at long last, it seems that a universal right to love will finally be realized in Irish society. There is a reason to be hopeful for the year ahead.

Legislating for Surrogacy

This post originally appeared on the Human Rights in Ireland blog. Lydia Bracken is a PhD Candidate at the School of Law UCC and a Department of Children and Youth Affairs Research Scholar.

The urgent need to introduce legislation to govern the precarious position of stakeholders in the surrogacy process formed a common thread amongst the seven judgments handed down by the Supreme Court in its recent ruling in the MR and An tArd Chláraitheoir case. Each of the judges expressed disquiet about the current lack of legal regulation in this area and in relation to the fact that, presently, the legal status of children born via surrogacy is “determined by happenstance.” Certainty was said to be vitally important for families involved in the surrogacy process and such certainty could only be achieved through the enactment of legislation.

Initially, the Government had included provisions to regulate parentage in cases of surrogacy in the Children and Family Relationships Bill 2014. These provisions provided that, in a surrogacy arrangement, the woman who gives birth to the child (ie. the surrogate) would automatically be regarded as the legal mother. The commissioning parents could, however, subsequently apply for a parental order so as to extinguish the surrogate’s parental status and to acquire parental responsibilities and rights for themselves. These provisions have since been removed from the Bill, however, and so in light of the Supreme Court’s finding that the woman who gives birth to the child is to be regarded as the child’s legal mother, the question now arises as to whether these provisions will be reinserted and, if they are, whether this is appropriate.

It is questionable as to whether the original provisions would strike an appropriate balance between the rights of all stakeholders in the surrogacy process. In particular, it should be noted that the parental order, as envisaged in the Bill, could not be sought less than 30 days after and not more than 6 months after the child’s birth. Prior to the granting of this order, the surrogate would continue to be recognised as the child’s legal mother and her consent would be required before the order could be made. Therefore, until this consent is given, there would be uncertainty as to whether the child would remain as the legal child of the surrogate or whether parentage would be transferred to the commissioning parents. This leaves the commissioning parents in an undesirable position as their status as joint legal parents cannot be established until the surrogate has exercised her choice.

Although it is quite a rare occurrence, should the surrogate refuse to consent to the parental order, the only option available to the commissioning parents to establish a legal relationship with the child would be to apply for guardianship as per Head 42 of the 2014 Bill. Where the commissioning father is also the genetic father of the child, he may apply for guardianship immediately in the same manner as any other unmarried father. The commissioning mother, however, as a “non-parent”(notwithstanding the fact that she may also be genetically related to the child) would have to have shared responsibility for the child’s day-to-day care for a period of at least two years before she would become eligible to apply. Similarly, where the commissioning parents are a male same-sex couple, this two year waiting period would also apply to the genetic father’s partner. Moreover, the consent of the surrogate would be required before either of the commissioning parents could be appointed as guardians, although the court would be at liberty to dispense with the surrogate’s consent where it is unreasonably withheld and where it is in the best interests of the child to do so.

It is, however, quite uncommon that a surrogate would subsequently seek to keep the child and therefore refuse to consent to the parental order. Typically, the child will be taken into the care of the commissioning parents prior to the making of the order. It should be noted, however, that in this period prior to the making of the parental order, the surrogate, as opposed to the commissioning parents, would be entitled to make decisions in respect of the child, for example in relation to consent to medical treatment. A genetic father could enter into a guardianship agreement with the surrogate so as to obtain parental responsibilities and rights in advance of the making of the parental order, but this option will not apply to a non-genetic commissioning father or indeed to a commissioning mother. The child could, therefore, be left in a vulnerable position as the commissioning parents may be hindered from fully protecting his or her interests during this intervening period. Furthermore, if the surrogate was to die during childbirth, the child, as the legal child of the surrogate, would be entitled to succeed from her estate under succession law. It is unlikely that this would have been intended by the parties at the outset of the agreement.

By contrast, other countries have dealt with the question of the allocation of parentage in surrogacy arrangements through the use of pre-conception orders. In South Africa, for example, under the Children’s Act 38 of 2005, surrogacy agreements can be validated by the High Court before the surrogacy is undertaken. Where validation is granted, the commissioning parents will be treated as the legal parents from the moment of the child’s birth. The surrogate will not acquire any parental status and she is legally required to “hand over” the child as soon as is reasonably possible after the birth. It should be noted, however, that a distinction is made in South African law between “full” and “partial” surrogacy. In the latter case, where the surrogate is also the genetic mother of the child, she retains the right to terminate the surrogate agreement within sixty days of the birth of the child. In Ireland, however, given that the original provisions of the 2014 Bill proposed to exclude the use of “partial” surrogacy, this issue would not arise.

Requiring that parental status is determined prior to the birth of the child would seem to strike a more appropriate balance between the interests of those involved in the surrogacy process than the original Irish proposals. The pre-conception order provides certainty and it removes the difficulties which can arise prior to the making of a parental order, as discussed above. Furthermore, it should be recalled that the Report of the Commission on Assisted Human Reproduction recommended by a majority in 2005 that the commissioning parents should be presumed to be the legal parents of any child born through surrogacy. Legislating for pre-conception orders to confer legal parental status on the commissioning parents from the moment of the child’s birth would, therefore, be in keeping with this recommendation.

Whatever legislative approach is ultimately undertaken, it is to be hoped that it will occur without unnecessary delay. As O’Donnell J. stated in the MR case, “[t]he absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation.” The families involved in the surrogacy process require and deserve security. In particular, the children born through the process require protection so as to avoid the “legal half-world” into which they are currently born and so it is to be hoped that legislation will be forthcoming.

An Inconvenient Truth: Epistemic Flaws in the Adversarial Legal Tradition

 

Alan Cusack

Alan Cusack is a PhD candidate and IRC Scholar in the School of Law, UCC. He is a member of the Centre for Criminal Justice and Human Rights at University College Cork and The Institute for Social Sciences in the 21st Century (ISS21) at University College Cork. His research is in the area of access to justice for victims of crime with disabilities. Specifically, Alan’s research assesses how traditional adherence to normative adversarial processes at each of the pre-trial, trial and post-trial stages of the Irish justice system inhibits participation by victims of crime with disabilities.

INTRODUCTION

According to Damaska an adversarial model of justice is characterised by an entrenched value system which comprises “a relatively passive tribunal that ideally comprises both judge and jury; the presentation of evidence by the parties through their lawyers who proceed by direct questioning and cross-examination…a presumption that the defendant is innocent until proven guilty; and the principle that he cannot be forced to testify against himself” (1983: 25). Within this formulation, three fundamental principles can be identified which have long been considered – not only by Damaska but by our wider Anglo-American legal community – as essential to the pursuit of adversarial justice, namely: the principle of party autonomy and judicial passivity, the principle of orality and the principle of fair procedures. Significantly however, each of these principles accommodate fatal epistemic flaws which, although rarely admitted, fundamentally inhibit the system’s efficiency in ascertaining the truth and restrict its accessibility to those select quarters of society who meet its normative demands.

EPISTEMIC FLAWS IN ADVERSARIAL IDEOLOGY

1. The Epistemic Flaw in the Principle of Party Autonomy and Judicial Passivity

It is a fundamental tenet of adversarial ideology that parties enjoy private autonomy in the vindication of their legal rights. Indeed, within the Anglo-American legal tradition parties enjoy almost unfettered freedom in initiating, investigating and presenting legal cases before our courts. The greatest courtroom casualty within this autonomous environment is the truth. With success being measured by the satisfaction of a client, not by the announcement of a true verdict, advocates are actively encouraged to tailor the available evidence in the interest of strengthening their client’s case. Thus not only do we find advocates wilfully concealing inaccuracies in the evidence which supports their cause, but we also find them actively supressing any evidence which might be disruptive to their client.

The autonomy of the parties starkly contrasts with the investigative passivity of the judiciary. Unlike their European counterparts, members of the Anglo-American judiciary occupy a reactionary role with no positive fact-finding mandate. The jury occupies a similarly passive position. Indeed famously described by Glanville William as “a group of twelve men of average ignorance” (1963: 271), the jury is faced with the unenviable task of organising “an incoherent mass of data…into a story which they can understand” without the support of a pro-active investigative jurisdiction (Bennett and Feldman, 1981: 10).

2. The Epistemic Flaw in the Principle of Orality

Every aspect of the adversarial model is strategically designed around the fundamental notion that the truth can best be achieved through the immediate observation of a testimonial account in open court. According to Bennett and Feldman however, “the plausibility of stories has little to do with their actual truth status” (1981: 75). Placing faith in the revealing attributes of behavioural performance therefore risks, not only accepting the inaccurate testimony of an accomplished perjurer but also rejecting the honest account of an intimidated witness.

Moreover, in a further epistemological failing, this classic construction of orality fails to appreciate the inherent fallibility of witnesses and the formative influence which advocates enjoy in shaping the courtroom narrative. In essence, the adversarial model’s predication upon viva voce testimony presupposes the capacity of witnesses to deliver a flawless account of events. Even honest witnesses, however, can tender inaccurate testimony arising from an erroneous observation or an ill-conceived recollection of events. Similarly, it must be appreciated that “[o]ften a statement owes as much to the officer’s controlling hand as to the witness’s actual memory” (Wolchover and Heaton-Armstrong, 1997: 857). Thus, from their calculated employment of the pre-trial interview to shift a witness’s recollection of events to their abuse of the leading question protocol to cast doubt on peripheral details, advocates constantly compete to re-shape the courtroom narrative in a design which best supports their client’s case.

Significantly, the centrality of oral testimony also invites an inherent bias against those who “lack shared cognitive routines for presenting evidence in story-coded forms” (Bennett and Feldman, 1981: 171). The root for such inequality of treatment lies in a long-accepted, adversarial assumption that “all honest witnesses are equally capable of holding their own against [cross-examination]”. Significantly however, “people are not uniformly articulate, confident and emotionally balanced” (McEwan, 1998: 15). Within this flawed epistemological landscape the forgotten victims are those members of society “who cannot communicate in commonly accepted ways about their actions” (Bennett and Feldman, 1981: 168).

3. The Epistemic Flaw in the Principle of Fair Procedures

The adversarial model has evolved in a design which accommodates a rich artillery of exclusionary evidential rules. Thus, from the common law privilege against self-incrimination to the rules prohibiting hearsay statements and character evidence, the adversarial trial is predicated upon a series of procedural protocols which insist that courtroom actors meet exacting evidential standards in delivering testimony. In prioritising, however, the exigencies of fair procedures the adversarial model naturally sacrifices a measure of fact-finding accuracy. In practical terms, this strict insistence on procedural rectitude reduces the adversarial trial to little more than a glorified sporting event wherein it is “perfectly acceptable that a party, perhaps in the right on the merits, “lose” on a technicality- if he violated the rules regulating the contest” (Damaska, 1973: 581).

CONCLUSION

Unlike our European counterparts who, in subscribing to an inquisitorial model, have openly affirmed their social commitment to uncovering the truth, we find that, within Anglo-American legal culture, the primary social objective of the legal system is to achieve a fair result through the application of a just process. This dedication to procedural rectitude is, however, epistemically flawed, cultivating substantive barriers to the truth-distilling enterprise which are re-enforced through the subtle interplay of the three adversarial principles.

Moreover, the centrality of oral testimony in the adversarial courtroom imposes significant obstacles upon vulnerable victims who, through their inability to construct a story, are “vulnerable to having truthful accounts of their actions rejected” (Bennett and Feldman, 1981: 171). Thus within this flawed epistemological landscape the truth is not the only casualty. The real victims are those members of society who, through procedural intimidation, cognitive impairment or testimonial anxiety suffer a communicational deficit which, not only prevents them from delivering a coherent narrative in court but also from expressing publically their frustration with the biased nature of the system in which they find themselves.

Access to justice for Deaf victims of crime: Exploring the socio-spatial side of justice

Dr. Gill Harold is a postdoctoral researcher at the Centre for Criminal Justice and Human Rights at the School of Law, UCC. Her research is funded by the Irish Research Council and is entitled ‘Exploring the Experiences of Deaf Victims in the Spaces and Processes of the Irish Criminal Justice System’.

As a social geographer, my interest in this area was awakened in 2011 when I worked as project researcher on a study funded by the National Disability Authority entitled Access to Justice for People with Disabilities as Victims of Crime (Edwards, Kilcommins and Harold, 2012). In the context of that research, I was introduced to the principle of orality as a central tenet of the adversarial process in common law jurisdictions such as Ireland; the implication of this principle sees emphasis placed on the spoken word and oral testimony. Within adversarial proceedings, the ability to articulate one’s case well is highly significant. Proficiency in spoken (and written) communication is important for providing statements to the police about incidents, for the preparation of victim impact statements, and for liaising with professionals in criminal justice agencies. This system clearly benefits the witness who is capable of articulating their case well.

Concurrent with my involvement on that research project, I was in the process of preparing my doctoral thesis which was centrally-concerned with the manner in which notions of a homogenous hearing public are imagined and reproduced in the social construction of urban space. In that work, and later in this Environment and Planning D: Society and Space paper, I engaged closely with the concept of phonocentrism, a philosophical argument often associated with the work of Derrida, which sustains the view that the spoken word is the ultimate form of communication, and in so doing I considered the ways in which we see this replicated across urban spaces and the implications for culturally Deaf citizens whose first language is Sign Language. For me, the implications of phonocentrism clearly resonated with the underpinnings of adversarialism with its implicit orality. It also became apparent that relatively little attention has been granted to the experiences of Deaf victims in a manner that fully reflects the cultural and linguistic tenets of Deaf identities. I began to wonder whether or not, and indeed how, the spaces of the criminal justice process are a microcosm of public space and as such, socially constructed in ways which assume and prioritise hearing-ness, but in a way that is exacerbated by the tenets of adversarialism and the sets of behaviours instilled in the expectations of criminal justice professionals, the judiciary and other actors such as jurors and witnesses themselves. I was also prompted to consider articulateness, and the question of who do we deem to be articulate in contemporary society? What forms of expression, and indeed what ontological positions, have come to be culturally sanctioned? In what ways are those whose first language is sign language compromised by the critically unstable, yet largely unchallenged, conflation of language and speech.

While the issue of orality has been recognised as posing a challenge to a broader category of the victim constituency, including victims with disabilities, this research is focusing specifically on access for Deaf victims. Significantly, Irish Sigh Language is not recognised in the Republic of Ireland, either officially or constitutionally. For most members of the Deaf community in Ireland, which numbers approximately 5,000 people, Irish Sign Language is their first language. This research explores whether or not the emphasis on the spoken word in adversarialism has implications which compromise the levels of access afforded to Deaf victims as they seek justice. The research critically evaluates the spaces and processes of the Irish criminal justice system from Deaf-centric perspectives. It explores policy innovations and regulatory frameworks in other common law jurisdictions to contextualise direct engagement with members of the Irish Deaf community, regarded as a linguistic and cultural minority, to uncover the perspectives that are rooted in community perceptions of the Irish legal system from victims’ viewpoints. The research is also concerned with the views of key stakeholders, including criminal justice professionals and victim support advocates, as well as looking towards the Victims Charter of 2010 to determine the extent to which those organisations that stated commitments are aware of the specific communicative requirements of Deaf victims and whether or not this is reflected in their existing policy/provision.

Essentially, this research is concerned with the socio-spatial context in which the Irish criminal justice system operates. It is interested in the spaces of justice such as Garda stations and courtrooms, and the manner in which expectations and assumptions about “normal” communication are embedded in the social fabric, and how they inform encounters between Deaf victims and other criminal justice actors.

For more information about this research, please contact Dr. Gill Harold at g.harold@ucc.ie

Child Asylum Law in the U.S. and Gang-Violence

Delighted to welcome this guest post from Jessie Chappell, immigration lawyer in St Louis, USA, who recently completed her LLM in International Human Rights Law and Public Policy at U.C.C.

Why US protection law is too complicated for unaccompanied minors fleeing gangs

JesseChappell
Central American gangs and the people fleeing them are dominating the news in the United States. As more and more people try to get out of the reach of these organizations, their children are increasingly more vulnerable. This year the number of Central American children arriving in the United States has climbed exponentially. A decade ago, unaccompanied minors from Central America numbered about 5,800 a year, last year they numbered 25,000, and this year they are estimated to rise above 60,000. The Department of Health and Human Services’ data shows that 95% of these unaccompanied minors come from Honduras, Guatemala, and El Salvador. The United Nations High Commissioner for Refugees (UNHCR) and U.S. Conference of Catholic Bishops issued separate reports connecting this influx of children to the increase of gang prevalence and breakdown in the rule of law across Central American governments.

Care of these children is rooted in former President George W. Bush’s 2008 law which was enacted to combat child trafficking. This law requires that unaccompanied Central American children in custody must be treated under the “best interest of the child” standard. While this is common legal language for the international community, the US’s lack of adoption of the CRC makes this standard more in line with international norms that most other child focused US law. This law also mentions that a child could have a legal advocate in forthcoming legal proceedings, but the state does not have to provide the advocate.

Once these children are present in the US, permanent legal protection and regularization rules mainly stem from national implementation of international sources. First, the national adoption of the 1951 UN Refugee Convention and the 1967 Protocol, offers protection for individuals who cannot return to their countries of origin because those countries cannot protect them from persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The unaccompanied child arguing for protection must convince the judge that his or her fears are credible, as determined under judicial discretion. This discretion considers the child’s recall of key events and overall attitude during the interview. Applying this protection mathematically, child must show evidence of part persecution or establish that there is more than a 10% chance of persecution in his or her home country. Even where such a chance of persecution exists, the child applicant must connect it to one of the protected grounds. Most often children in these circumstances apply for protection under “political opinion” or “particular social group” grounds.

Rio GrandeThis process is incredibly difficult, since the Board of Immigration Appeals, the appeals mechanism for asylum cases, has previously stated that a minor’s refusal to join a gang may not always be a political opinion, since gangs pursue minors in order to increase the size or influence of their gang. This effectively negates one whole category of protection for children facing gang recruitment or death. For children relying on particular social group, the Board of Immigration Appeals has stated that a group must “all share a common, immutable characteristic…such as sex, color, kinship ties… or past experiences…which cannot change or should not be required to change because it is fundamental to their individual identities or consciences.” As immigration advocates try to define their client’s group in a particular enough way, courts continue to narrow the qualifying memberships. For example, circuit courts are now requiring social visibility of a group even after the UNHCR questioned the need for such additional restrictions. In conflicting US case law, young women of a specific tribe resisting female genital mutilation were not required to meet the social visibility requirement, whereas the Board of Immigration Appeals, in the Matter of S-E-G– noted its requirement in a number recent of gang related cases.

Even where a child is able to show social visibility in a particular social ground, he or she can be denied protection. Because the Board of Immigration Appeals has not yet considered whether children with past gang affiliation are eligible for protection, circuit courts have been free to decide for themselves. Without discussion on the differences in culpability for adult and child former gang members, some courts have stated that the legislature did not intend to protect “violent street gangs who assault people” and that choosing to join a gang or receive an identifying tattoo forfeits legal protection by an assumption of risk. This presumption is inherently flawed, as research has shown that gang affiliated youth in El Salvador spent the majority of their time with peers engaging in non-criminal activities. Legal advocates cannot rely on such secondary sources, however, since few other circuits have adopted a more fact intensive analysis of protection eligibility.

The other main international standard which applied to children fleeing violence and recruitment by gangs is protection against torture. Under the UN Convention Against Torture, the US is prohibited from returning an individual if he or she fears torture at the instigation of or with the consent or acquiescence of a public authority. This protection should provide a safety net for targeted children who cannot overcome the nexus requirement of asylum law, but is rarely successful in practice due to the burden of proof being “more likely than not”, which is higher than the asylum burden.

Assuming a child is able to prove a well founded fear on account of a protected nexus group or a well founded fear of torture under CAT, he or she is still not entitled to protection. The child, in either category, must show that the child’s home country is unwilling or unable to protect them. The precise definition of this is unclear, as the US Supreme Court has yet to clarify what constitutes a “public authority’s willful awareness” of persecution or torture. Inconsistent precedent regarding this requirement adds to the unaccompanied child applicant’s challenge to remain safe in the US.

Given the trauma associated with children persecuted or forcibly recruited to join gangs, and the complicated legal hurdles discussed above, it is clear that unaccompanied children face a difficult path to legal protection. Notwithstanding language and cultural barriers, trauma and isolation in detention centers also greatly limit a child’s capacity to understand legal alternatives. Unaccompanied minors must be appointed legal advocates, in order to fully understand their legal options, in line with the international interpretation of “best interest of the child” standard. Without a trained advocate at each stage of the legal process, the laws meant to protect these vulnerable children are ineffective and inconsistent.

Enforcing Precariousness: The Re-establishment of the Temporary Protection Visa in Australia

Anne Neylon, Lecturer in Law, @ Liverpool University, and PhD candidate, CCJHR, U.C.C., School of Law

Anne NeylonLast week, the Australian Minister for Immigration and Border Protection, Scott Morrison, announced that he intends to reintroduce a controversial policy of granting temporary protection visas (TPVs) to recognised refugees. These visas permit the refugee to remain in Australia for a period of three years, after which, their continuing need for protection is re-assessed. The TPV system previously existed between 1999 and 2008. The TPV system was condemned as leaving refugees in a kind of limbo, often resulting in refugees suffering re-traumatisation. The system was eventually abolished in 2008. In a factsheet setting out the reasons for the abolition, the Australian government stated, ‘[t]hese people have been living with uncertainty and should not have to go through the refugee determination process again to gain permanent residence.’

However, the issue of the TPV is once again in the spotlight as the Minister has proposed the reintroduction of the visa under the  Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. The bill also proposes to amend the existing migration legislation to remove most references to the 1951 Refugee Convention and replace them with Australia’s own interpretation of its obligations to asylum seekers and refugees. In addition, the bill permits the Australian Government to remove an individual from Australia without any requirement for the authorities to review whether such a return will result in refoulement. Further, the bill also provides the Minister for Immigration and Border Protection with increased powers to direct boat turnbacks, as well as allowing for boats of asylum seekers attempting to enter Australia, to be sent to another jurisdiction. The latter provision would apply regardless of whether Australia has a pre-existing agreement with such a state to send asylum seekers to the third state’s territory.

The re-establishment of the TPV also comes alongside the creation of a new kind of visa called the Safe Haven Enterprise Visa (SHEV). The SHEV is offered to individuals who have been recognised as refugees in Australia. The proposed SHEV would entitle the refugee to work in Australia for a period three and a half years. Following the initial three and a half year period, the refugees would also be permitted to apply for other onshore visas such as family visas and skilled visas. However, such visa holders are only allowed to live in areas in Australia that are deemed to have labour shortages and they are prohibited from ever applying for a permanent protection visa.  The abovementioned visas are designed to deal with so-called ‘legacy’ cases. These visas are only made available to those who have been recognised as refugees and any refugee who is granted a TPV is precluded from ever accessing a permanent protection visa (PPV). The proposed visas are also only available to recognised refugees who are on Australian territory, either mainland Australia or Christmas Island. Asylum seekers who tried to enter Australia and were re-directed to Nauru and Manus will not be able to enter Australia, even if they are recognised as refugees. The TPV and SHEV referred to in the 2014 Bill therefore will not apply to refugees on those islands.

The TPV, the SHEV, and the normalisation of precarious refugee statuses in Australia

While the TPV system was abolished six years ago, the 2014 Bill is not the first attempt by the current government to re-introduce the TPV system. In 2013, the Minister for Immigration attempted to introduce another bill which would have re-established the TPV system under the Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013. The 2013 Bill was however rejected by the Labor and Green members of the Australian Senate in December 2013. However, since one of the central election promises of the current Australian government was the reintroduction of the TPV, the government is once again attempting to establish the TPV as a key feature of Australian asylum law and policy.

In the case of Minister for Immigration and Multicultural Affairs v. QAAH of 2004, the High Court of Australia had to decide how a refugee’s ongoing need for a protection visa should be determined under the previous TPV scheme.The issue under dispute in QAAH was whether the cessation standards set out in the Refugee Convention(in particular Article 1C5), should apply to TPVs when the residence permit had expired, or whether Australian domestic law would be the standard used to determine whether the individual was still in need of a protection status. There, the court stated, ‘it is the law of Australia which prevails in case of any conflict between it and the Convention. It is the law of Australia which must be first identified.’ While the Convention may guide the interpretation of the Refugee Convention, the Court stated, it was the wording of the domestic legislation which took primacy. The implication of this decision was that when the refugee’s ongoing need for protection was being assessed, the refugee had to prove afresh that she was in need of protection as per the refugee definition set out in Article 1A. This standard places a considerable burden on the refugee and makes her legal status in Australia much more precarious. QAAH remains the leading case in relation to cessation of status in Australia. Therefore, if the TPV is reintroduced, refugees who are granted such a visa are in a particularly vulnerable position. If the TPV refugee is unable to demonstrate that she is a refugee, as per the definition Australian domestic legislation, she faces the possible loss of refugee protection and potentially, being returned to her country of origin.

It should be noted that Australia is not alone in its move toward the granting of a more temporary legal status to recognised refugees. In other states located in the Global North, a similar trend has emerged. States such as the UK and Germany have granted such residence statuses for many years, and Canada provides a limited residence status to refugees who arrive to the state as part of a smuggling operation. However, in those jurisdictions, refugees are not required to establish that they continue to be in need of protection at the point that their initial residence permit expires. As UNHCR has attested, the burden should be on the state to demonstrate that the refugee in question is no longer in need of refugee protection. This position is taken not only on the basis of UNHCR’s interpretation of Article 1C5, but in order to reflect the unequal resources to provide evidence and proof available to the refugee in comparison to the state.

As noted above, the 2014 Bill also introduces a new kind of temporary protection work visa for recognised refugees known as a SHEV. If a refuge satisfies a number of strict criteria under the 2014, she may apply for a SHEV, which entitles her to enter and work on the Australian territory for a period of five years. If the refugee does not claim income support for a period of three and a half years, she may then be entitled to apply for further visas, including a visa to facilitate family reunification. Despite the further opportunities to remain stemming from the initial SHEV, the Minister for Immigration has strongly emphasised that those refugees who are granted a SHEV will never be entitled to a permanent residence status. Therefore, according to the Minister, while the SHEV might bring refugees as workers to remote and less populated areas of Australia, it does not allow them to permanently settle there. The long term benefit to these areas of Australia on the basis of the SHEV is therefore diminished as a result of the uncertainty attached to their residence status.

However, despite the strong resistance by the Minister, it has still been suggested that the SHEV would in fact offer a sort of pathway to citizenship.  This nonetheless remains unclear. Even if the SHEV was to be conceived as a tentative path to citizenship, it sets a poor precedent as to what criteria refugees must fulfil before they are entitled to apply for citizenship. Their value as potential citizens is tied to their willingness to submit to an extremely limiting work programme for a period of five years. The alternative to this programme however is either a TPV, which provides an inherently precarious legal status, or else not access to the Australian state at all. The SHEV is therefore a highly coercive tool, a strange version of nation-building, but without any clear long-term advantage to the refugee given. While the SHEV possibly offers a more secure residence status than the TPV, there is still no guarantee that the refugee will ever acquire a permanent residence status in Australia. Further, the long term benefit to the areas of Australia that the refugees would be sent as part of the SHEV is called into question. The problem that such areas face is that they face difficulties in not only attracting people to come work there, but to remain there long-term in order to expand the community.

Conclusion

If passed, the 2014 Bill would set a worrying precedent in terms of the content of refugee protection available to recognised refugees in a developed state. In this regard, the re-introduction of the TPV represents a serious regression for Australian asylum law. As noted above, because of the way in which Australia reviews the need for protection when the TPV expires, the refugee is at a serious risk of losing protection status, and is potentially being returned to her country of origin. Because the 2014 Bill would potentially abolish the requirement that the state review whether the return of an individual would result in refoulement, refugees who are granted TPVs are at particular risk if the 2014 Bill were to be introduced. In addition, the creation of the SHEV marks a potentially more exploitative turn in the nature of refugee residence permits made available. While the SHEV might offer the refugee an opportunity to enter and work in Australia, this opportunity is consistently limited in order to allow Australia to achieve its contradictory goals of developing remote areas of the state, and being seen to only grant temporary protection statuses to recognised refugees.

What is clear from the 2014 Bill is that if refugee protection is available to refugees in Australia, it exists exclusively on the Australian state’s terms. This includes using refugee status as a source of cheap labour in sparsely populated parts of the country. Those refugees who would move to Australia on the basis of a SHEV would also be tied to an allocated territory and would be precluded from travelling outside Australia. The reintroduction of the TPV and the establishment of the SHEV signals the emergence of the intensive management and control of the refugee population, even after the point of refugee status recognition. Fundamentally, the introduction of the 2014 Bill raises serious questions about the future of refugee status as a form of meaningful protection, in Australia, and beyond.

 

 

Ireland, the ICCPR and the UN Human Rights Committee 2014

PageLines- IconCCJHR.png Palais WilsonI’m just back from two days in Geneva at Ireland’s hearing before the UN Human Rights Committee. I was there as part of the Irish Human Rights and Equality Commission (designate) delegation, and, as with other members of civil society attending, had the opportunity to meet with UN Committee members in the café, corridors and meeting rooms of Palais Wilson.

 The Committee Rapporteur for Ireland is Professor Yuval Shany, and twitter followers, as well as those who viewed the web-cast, will have heard his sharp questioning of the Irish delegation, on matters ranging from non-discrimination of religious minorities and aetheists in education, abortion, symphsiotomy, and limited access to effective remedies at domestic level, including the failure of the State to incorporate the ICCPR into domestic law.

 The Committee’s challenging questions on Ireland’s failings on women’s rights, and on reproductive and sexual health in particular, were remarkable both in tone and substance.   The ill-fated attempt by the Irish Govt delegation to invoke Article 25 ICCPR, the right to participation in public life (normally associated with free and fair elections), provoked a strong reaction from Committee members, with Prof Yuval Shany calling on the Govt to withdraw its comments. The suggestion that majority views were determinative of the content and scope of human rights norms, and of the State’s human rights commitments, was shocking to those who listened to the Govt’s responses, and with some time for reflection, Minster Frances Fitzgerald quickly accepted the Committee’s criticism.  

 Committee member, Flintermann (formerly of CEDAW), challenged the Government as to whether the electorate had ever been given the opportunity to vote on expanded access to abortion. The answer, as I’m sure he knew, was no. Minister Fitzgerald commented only that the most recent referendum, held in 2002, sought to limit the impact of the X case judgment and remove access to abortion in situations of suicide. Flinterman also linked – as noted subsequently by Rodley – access to abortion with the ICCPR’s non-discrimination guarantee.

 While the exchanges on women’s reproductive rights provoked the strongest words from the Committee, there was also sharp questioning on the State’s continued failure to recognise Traveller ethnicity, as well as on the prolonged stays of children and families in Direct Provision accommodation.  The continuing failure of the State to introduce an independent immigration appeals system or a statutory framework to vindicate the rights of trafficked persons was noted with some frustration by Committee members.  On Direct Provision, the Government’s response, presented by RIA representative, Mr Noel Dowling, cited ‘value for money’ and need to avoid ‘pull factors’ as justifications for continued reliance on DP without time limits or exceptions for families with children.  The notion of ‘rights as trumps’ clearly overlooked already in the Government’s invocation of Article 25 ICCPR, was again ignored by RIA. The lack of disaggregated data on domestic violence, the habitual residence condition and its impact on migrant women experiencing domestic violence, as well as the €300 charge imposed for those seeking to access immigration permission, were all raised by Committee members.

 The wrap up comments from Nigel Rodley, brought together the continuing impunity for gendered historic abuses, including symphsiotomy, with the current law’s treatment of women as ‘vessels’. Failing to provide access to abortion where there existed a risk to health imposed conditions of life on women, that as Flinterman had also noted, violated not only article 6 ICCPR , but also Article 3’s guarantees of non-discrimination.  On symphsiotomy, Rodley was even more categorical in his statements. Although a former UN Special Rapporteur on Torture, the information brought to light on the practice of symphsiotomy in Ireland had, he said, been keeping him awake at night. Rather than commenting further, he simply re-stated the Covenant’s prohibition of medical experimentation without consent (art 7 (2)).  Clearly, he said, the practice of symphsiotomy fell within the prohibitions of Article 7 – a  core non-derogable human rights norm.

 Uniting the State’s record on historical abuses, from the Magdalene Laundries, to Symphsiotomy, child abuse and the Mother and Baby homes, was, he said, an absence of accountability, a failing in human rights protection that that he suggested was due to ‘dominant institutional belief systems’ that prevailed within the State — I guess he was talking about the intersections of law, gender and religion here?  Strong words from a human rights lawyer not given to emotive outbursts.

 The quality of civil society engagement clearly informed the Committee’s scrutiny, and no doubt prompted the need for a high level Govt delegation to respond. Concluding Obs will issue next week. They are likely to be much more muted than the robust exchanges witnessed in Geneva. Let’s hope however for clear signals on the need for urgent reforms, not least on accountability mechanisms for past abuses.

 

 

ISIS in Iraq and International Law’s Rebel Forces Issues

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Blog post contributed by Seán Butler (PhD candidate and Government of Ireland IRC PhD scholarship awardee). 

ISIS in Iraq and International Law’s Rebel Forces Issues

The disaster of the civil war in Syria has since its inception been compounded by fears that the conflict could destabilise its neighbours and spur a much larger regional conflagration. The activities of the Syrian rebels expanded into conflict with Hezbollah in Lebanon in mid-2012, and now the stuttering attempts to build a stable post-Saddam state in Iraq have been significantly hindered by the activities of the terrorist group styling themselves the Islamic State in Iraq and the Levant (ISIS). The group claim sovereignty over the entire Levant region, incorporating Iraq, Syria, Lebanon, Israel, Palestine, Jordan and Cyprus, as well as portions of Turkey (the Hatay province) and Egypt (the Sinai), in which they wish to establish a caliphate. ISIS was previously allied to al-Qaeda, but was expelled from the latter in February for excessive brutality in its actions and a political disagreement over control of the Syrian rebel group known as the al-Nusra front.

In early June, ISIS scored a major victory in taking control of Iraq’s second largest city, Mosul, and currently controls approximately 35% of Iraqi territory in the north and west of the country. Their actions have caused a surge in violence in Iraq, leading to over 2400 deaths in June and severely damaging the position of Prime Minister Nouri al-Maliki. It has additionally led to a substantial drop in Iraqi oil production, threatening global crude prices, and spurred a movement towards a referendum on total independence by Iraqi Kurdistan, which would include the oil-rich city of Kirkuk. The Iraqi government has requested help from the international community to deal with the crisis, which so far has come in the form of a shipment of warplanes from Russia and the dispatch of some three hundred military advisors from the US. Earlier in June, Pentagon officials were discussing possible military action in the form of airstrikes, but the US government has since backed away from this position. An airstrike was conducted against the ISIS-controlled city of al-Qaim on 24 June, but the US denied involvement, and it is strongly speculated that it was undertaken by the Syrian government, who are also fighting ISIS.

The rise in influence of ISIS and the involvement of international players in the crisis has generated some notable impacts in politics and law. Politically, the situation threatens to shuffle the deck in the ongoing Sunni-Shia ‘Cold War’, with Iraq pushing closer to Shia-dominated Iran in the absence of American military involvement and Sunni-dominated Saudi Arabia likely to fill the vacuum of oil supply being vacated by Iraq. As such, the situation in the Middle East could accelerate towards a state of greater instability and even a potential possible ‘heating’ of this ‘Cold War’. Such fears could force greater US involvement if the crisis does not abate in the future, as military action in Iraq would be (politically) less controversial than similar action in Syria.

A relative lack of political controversy over such a move does not mean that the situation is legally cut-and-dried, however. When the possibility of US military engagement was mooted last month, a number of bloggers questioned whether the move would be legal under domestic US law. The 2001 Authorisation for Use of Military Force Against Terrorists, restricted to those responsible for the 9/11 attacks and their allies, may not apply to ISIS due to its severing of ties with al-Qaeda, while the 2002 statute permitting action against Iraq to deal with its supposed “weapons of mass destruction” would also not apply.

Additionally, Deborah Pearlstein has argued in a post for Opinio Juris that US military action in Iraq may violate international law also, specifically that it would violate Article 2(4) of the UN Charter and Iraq’s human rights obligations, if an armed force conducts military operations on foreign soil absent a state of armed conflict, a Security Council authorisation or an act of self-defence. The primary issue of contention here is whether the US government can target individuals on foreign soil if said individuals cannot be said to be combatants in a conflict, a question with added salience given the US’ continuing drone campaign against militants in Pakistan.

As some have commented under Pearlstein’s piece, the question is largely moot as it is likely that the Iraqi government are in a state of armed conflict with ISIS, even if it would be politically inconvenient for them to admit to this fact. The issue does however raise further questions. As I raised in a previous post on this blog concerning French action in Mali, to what extent should a government be permitted to request or consent to foreign military intervention in regions of its country over which it does not have de facto control? The Iraqi government now essentially comprises one side of a civil war, and its requests for foreign intervention ultimately amount to an attempt to drag the US into the war on its side. The situation is further complicated by the fact that a truly effective counterattack against ISIS would probably involve attacking targets inside Syria as well.

Due to the prominence of sovereignty in international law, particularly post-1945, the law sides with the de jure governments to a strong degree. The ICJ’s famous Nicaragua judgment declared foreign assistance to rebel forces to be a violation of that state’s sovereignty, yet assistance to the government forces is legal. ISIS declared the establishment of a caliphate in the areas of Syria and Iraq that it controls, yet this new ‘state’ is not recognised under international law as it was a unilateral declaration (similar to the declarations recently undertaken by forces in Crimea and eastern Ukraine). Should ISIS gain control of Baghdad, however, it could potentially become the de jure government of Iraq and thus US action against it in favour of the deposed democratic government would ostensibly be illegal. In such a situation, it would become a matter of political wrangling as to what constituted the legal government of Iraq, and thus who foreign states could support.

The complexity of this situation is just another example of contemporary international law’s difficulties dealing with the reality of non-state actors. The brutality of ISIS means its status as a pariah in international law will garner them little sympathy, yet the law which applies to it equally would apply to the more popular secular forces also fighting the Assad regime in Syria. This issue was also relevant in the disagreement over the interpretation of Security Council Resolution 1973, as to whether the targeting of pro-Gaddafi forces in Libya was a necessary component of NATO’s mandate of civilian protection or a violation of the law (see my Mali post for a brief discussion of this). The law needs further clarification and congruence in this area, so that the legal battlefield can better match the requirements of the physical one.

 

 

 

 

 

Malala and the post-postcolonial child*

Sarah M. Field 

Article 1, Universal Declaration of Human Rights (Lithograph by Robert Motherwell).

Article 1, Universal Declaration of Human Rights (Lithograph by Robert Motherwell).

 

‘Malala is not alone’ said the deliverer of the 2014 Annual Grotius Lecture of the American Society of International Law — Radhika Coomaraswamy. Held within these four simple words are children’s indivisible worlds, where embodied vulnerability lives in continuous, dynamic juxtaposition with their evolving capacities. So too, are ‘the interrelations of subjugation and independence’ of the distinguished discussant’s response — Diane Marie Amann. Subjugated, Malala seized, shaped, and expressed her right to education. And for this act of subversion she was silenced; or at least the ultimate silencer was triggered and failed. Herein the depth of the connection between aspects of those interrelations (those of subjugation and self-determination) is held within the individual of Malala. However those four words (‘Malala is not alone’) also illumine their broader dimensions.

In her word-selection, Radhika, evokes both presence and absence (the presence of Malala and absence of others). And, in so doing, she provokes reflection, illumining the subjugation in presence and self-determination in absence. Of the two, the invocation of absence is perhaps the most powerful. In suggesting the unseen it conjures those intimate relations of subjugation: invisibility, exclusion and above all silencing. However this absence subsists also within the presence of Malala: less the individual and more her celebrated status. Viewed another way, the latter, lives, at least partially, because of absence: the perception of absence; the perceived exceptionality of Malala’s status as child, her gender identity and position as a child human rights defender. However the former Special Representative only evokes absence: she speaks of presence — the presence of other child-human rights defenders.

Undergirding this conjoined presence-absence is a paradox, evocative of still broader dimensions of those interrelations: though Malala’s human rights advocacy is and has been celebrated, how many states (including those of my own continent of citizenship) respect and ensure children’s evolving capacities to seize, shape and express their rights. Consider it this way: they may ensure their right ‘to’ education, but what about their rights ‘in’ and ‘through’ education? Here too those interrelations of subjugation and self-determination loom. The celebration of Malala’s acts of self-determination in defence of her human rights is countered by the subjugation of others closer to home (wherever home maybe). And this may only partially be explained by Malala’s perceived exceptionality. It illumines deeper dimensions of those interrelations: specifically the underside of the interface between political and legal imperatives — the politicking that undergirds greater respect for human rights away from home. Here the focus is arguably less on the rights-holder and more the identity of, and our relationship with, the rights-violator (amongst other dynamics).

Still as the discussant affirms ‘we are all postcolonial now’. Herein the affirmation of the rights to self-determination of peoples and individuals represents the beginning of our present ‘postcolonial epoch’. And children were part of this; they too are postcolonial subjects of rights. (Indeed they are arguably the first postcolonials, as recognised by the League of Nations in the Declaration of the Rights the Child (the quasi-juristic forerunner to general and child-specific instruments of international human rights law).) Envisioned in this way, the legal expression of our position as postcolonial subjects of rights was born of the hurt and harm of the subjugation of peoples and individuals — and here is the crux, within the homelands of the colonised and the colonisers. Further as, the individual of Malala, illumines, these rights continue to be seized and shaped by continuing acts of injustice including the suffered injustice of children.

To an extent then, international human rights law is the juristic holder of our embodied vulnerability to hurt and harm of all forms. Thus viewed it has particular significance for children and their aforesaid indivisible worlds. In affirming children’s position as human rights-holders, international law acknowledges and accommodates their differences and disadvantage from adults. However, the applicability of selected rights to children is often underappreciated: specifically the rights transformers — children’s rights to legal remedies, take part in decision-making affecting them and freedom of expression, amongst others. So too is the hurt and harm of the non-fulfilment of these legal obligations. Of course, supporting children’s evolving capacities to seize, shape and express their rights is dignity affirming. However it is also vital to ensuring their other rights including their freedom from all forms of violence (and the rights-based development of international law).

Interwoven within the multilayers of presence and absence evoked here are the vestiges of subjugation; these subsist notwithstanding the identifiable momentum towards child rights infused decision-making and outcomes at all levels. De jure, children remain ‘equal in dignity and rights’. De facto, (with limited access to justice and decision-making affecting them) they are less subjects of rights and more objects of protection. Considered in this way ‘[w]e are thus in need of post-postcolonialism’. Perhaps the beginning is unlocking the abstraction (the child), reconnecting children’s indivisible worlds to their present rights-bearing selves  — perceiving and affirming the Malala in each and every child.

 

* Inspired by the 16th Annual Grotius Lecture of the American Society of International Law‘Women and children: the cutting edge of international law’ delivered by Radikha Coomaraswamy (Global Professor of International Law at New York University School of Law and former U.N. Special Representative of the Secretary General on Children and Armed Conflict and U.N. Special Rapporteur on Violence against Women) and the response ‘The post-postcolonial woman or child’ by Diane Marie Amann (Emily and Ernest Woodruff Chair in International Law at the University of Georgia School of Law and Special Advisor to the Prosecutor of the International Criminal Court). Please note, the views expressed here are my own.

 

Public Panel Discussion: “Climate Justice and Adaptation Strategies: Linking Global and Local Initiatives”

By Mark Kernan, 7th July 2014

 

As a precursor to the third in a series of workshops on Climate Justice, Human Rights, Migration and Adaptation Strategies, hosted by the Centre for Criminal Justice and Human Rights in conjunction with the EU COST Action Programme IS1101, a public discussion took place on 9th June 2014 at UCC highlighting key areas in the climate justice debate, with speakers from diverse viewpoints: academia, policy-level, and from an activist standpoint.

 

Chair for the discussion, Professor Siobhán Mullally, introduced the evening’s key talking points: how different types of migration, short-term and seasonal for example, can be an adaptation strategy in response to climate change, and the need for examination of the institutional responses to adaptive migration strategies at the global, regional, and national levels.

 

First to speak was Dr Cosmin Corendea, from the United Nations University (UNU) in Bonn and current chair of the University’s social vulnerability project, who discussed a recent UN collaborative project – Where the Rain Falls – which ran from 2011 to 2013. The project was an empirical study with a participatory ‘bottoms-up approach’ which focused on climate change, food security and human mobility in eight countries in the Global South, where seasonal rainfall, now often erratic due to climate change, acts as a trigger for non-traditional migration. The global findings of the project, based on country specific case studies, highlighted in particular that in 30% of cases forced migration was the main violation of human rights, particularly problematic in the case of rural to urban migration. The study’s key finding however found that the most important issue facing climate-induced migrants in all countries was food security. As a specific example, in Tanzania climate change is now impacting on both the wet and dry seasons, where the monsoon season often falls later than expected thus causing confusion to traditional migratory patterns. As a result, communities who migrate to other regions at non-traditional times, due to crop failure for instance, now face severe human rights problems, often in conflict over resources with host communities. Dr Corendea however was keen to point out that ‘migratory reaction adaptations’ differ considerably in diverse regions of the world. Responses in Vietnam to erratic rainfalls for instance are different for a host of reasons from Peru, for geographic or cultural reasons, and local and national action plans to deal with such a diversity of migratory responses must take this into account.

 

Second to speak on adaptation strategies, this time from a Global North policy level perspective was Diego Quiroz-Onate, Policy Officer with the Scottish Human Rights Commission. In his talk on climate justice in Scotland, three themes where outlined. First, he argued that human rights are not adequately discussed in climate change reports. Instead, climate change is communicated overwhelmingly in terms of fiscal policy, economics and depleting resources and as a result the social element is ignored or at best downplayed. Climate change displacement impacts on housing rights, for example when flooding acts as a push factor resulting in homelessness, and sometimes destitution, a direct consequence. Therefore the integration of a strong human rights framework at the policy and legislative level is vital for both adaptation and mitigation. Second, and following on from the first theme, the human rights-based approach gives added value in the design, implementation and evaluation of law, policies and practices. Human rights impact assessments for example, he argued, add moral value, within a strong moral framework, in that they identify both rights-holders with specific claims, and duty-bearers with specific legal obligations. His final point dealt with the concept of climate justice in Scotland, specifically the 2009 Climate Change Act and the 2012 Scottish Parliament motion on climate justice. The 2009 Act creates the statutory framework for reducing greenhouse gas emissions and enables the transitioning to a low carbon economy. Meanwhile, the 2012 motion was passed unanimously, and according to Quiroz-Onate, this legislative framework linking human rights to development in Scotland is a highly progressive model, with a climate justice approach as the formal policy of the Scottish Parliament.

 

Finally, speaking from an activist point of view, Oisín Coghlan from Friends of the Earth (Ireland) spoke on climate change legislation in Ireland – specifically, the Climate Action and Low-Carbon Bill 2014. Unfortunately, and in direct contradiction to the Scottish legislature’s success in passing laws, Ireland is considerably off-track on climate change targets due to legislative inactivity. In a challenging analysis, Coghlan argued that the ‘hold up’, ongoing since 2007, is largely due to ‘complex climate change politics’. Before the 2011 election for instance all the main political parties had explicitly committed to climate change legislation, yet since the new Daíl has convened the current coalition parties, Fine Gael and Labour, have not seen it as a priority. All this, he frankly admitted, despite the inception of the coalition on advocating for a climate change law began in 2007, with development NGO’s and faith groups, has been a somewhat sobering, if enlightening experience.

 

A law is needed, Coghlan argued, to provide a ‘policy architecture’ robust enough to drive action on climate change. Otherwise, it invariably falls off the political agenda. Part of the reason the legislation itself has taken so long, he maintained, is due to civil service resistance; where there is a preference for policy flexibility over firm timelines and targets, and where increased external oversight and accountability hold no great appeal. It takes considerable political will to overcome that inertia and political leadership has been lacking, especially given the influence of vested interests such as IBEC and the IFA, concerned about the short-term costs of climate action on their members.

 

Coghlan also argued that climate legislation, while not negating the legitimate interests of the business and farming lobbies, is intended to increase transparency and raise the level of democratic debate on climate policy. The public role of the expert advisory body should help bring the policy decisions out from behind closed doors. Elements in the civil service regard this as restricting Ireland’s room for manoeuvre.

 

This combination of civil service caution and interest-group concern is what stymied the last Government’s Climate Bill which included targets for 2030 and 2050, beyond the 2020 targets Ireland had already agreed to in EU negotiations. Following discussion of mitigation and adaptation, Coghlan finished the session with a somewhat apt and succinct phrase which had been conveyed to him at a recent environmental convention, in relation to climate change and its consequences: manage the unavoidable, but avoid the unmanageable.

 

In summing up the three presentations and placing them within tripartite institutional and policy structures, Dr Dug Cubie of the CCJHR and organiser of the evening’s discussion, argued that to protect the most vulnerable in society we must adapt to a changing climate as well as tackling the root causes via mitigation efforts to reduce greenhouse gas emissions. In particular, climate change adaptation strategies must be understood in terms of linking the global UNFCCC Cancun Adaptation Framework which prioritises approaches that are country-driven, gender-sensitive, transparent, participatory and based on best available science; with the regional, for example the EU adaptation strategies and climate-proofing action at EU and member State level; while at the local level, it is necessary for the Irish National Adaptation Framework and the Climate Action and Low-Carbon Development Bill to articulate a coherent strategic government policy for both adaptation and mitigation measures.