New Publication on the Laws Governing Humanitarian Assistance

Dug Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire (Hart Publishing 2017)

Dr Dug Cubie’s monograph examining the international legal protection of persons in armed conflicts, natural and human-made disasters and forced displacement will be published by Hart Publishing (Oxford) next month. In the book, Dr Cubie argues that the humanitarian imperative to support those in need, irrespective of geographic, cultural or religious links, is both facilitated and overwhelmed by the extent of information now available about the multiple humanitarian crises which occur on a daily basis around the world. Yet behind the images of devastating floods and earthquakes, or massive forced displacements resulting from armed conflicts, is the all too real suffering faced by individuals and families. From the 2004 Indian Ocean Tsunami to the on-going conflict in Syria, recent years have seen an increasing debate regarding the international legal mechanisms to protect persons in such humanitarian crises.

The International Legal Protection of Persons in Humanitarian Crises argues that an acquis humanitaire, or law of humanitarian assistance, is identifiable through the interconnected web of existing and emerging international, regional and national laws, policies and practices for the protection of persons caught up in humanitarian crises. Indeed, the humanitarian imperative to alleviate suffering wherever it may be found permeates various branches of international law, and is reflected in the extensive humanitarian activities undertaken by States and other actors in times of armed conflict, population displacement and disaster.

The book commences by interrogating the conceptual framework regarding humanitarianism and the protection of persons in international law, before examining the normative content of the acquis humanitaire. Specific chapters cover the binding and non-binding provisions in international human rights law, the law of armed conflict, international criminal law, international disaster laws, and refugee and displaced persons laws. The book concludes by noting that while a general legal right to humanitarian assistance may be in the process of crystallisation, its current status is contested. Nevertheless, over the course of the book, Dr Cubie argues that by clarifying the conceptual framework and normative content of the acquis humanitaire, gaps and lacunae can be identified and the overall protection of persons strengthened.

CCJHR-ISS21 seminar on climate migration

The CCJHR and the Institute for Social Science in the 21st Century (ISS21) Migration Cluster jointly hosted an inter-disciplinary seminar on climate migration on Thursday 2nd March 2017 in the School of Law, UCC.

Few people challenge the strong scientific evidence that anthropogenic climate change is a reality, and is negatively impacting many parts of the world. Indeed, one of the most oft-quoted consequences of global climate change is the possibility of large-scale human migration in response to rising sea levels, increased desertification, and intensification of natural disasters such as hurricanes and flooding.

Therefore, this seminar considered the human, social and legal implications of climate migration from an inter-disciplinary perspective, bringing together researchers from the fields of geography, philosophy and the law. Professor Robert McLeman from Wilfrid Laurier University Ontario and Trinity College Dublin, commenced by examining why people migrate and the different categories of climate-relating migration. Professor McLeman set out a variety of scenarios, including amenity migration (for example people in China migrating away from urban areas to avoid extensive smog and pollution), seasonal migration arising from seasonal floods in Bangladesh or dry season migration in India and central Asia, and climate extremes such as Hurricane Mitch which prompted a pulse of short-term evacuations and distress migration. Professor McLeman concluded by stressing that we should not fear floods of climate refugees but focus on addressing root causes, building adaptive capacity and creating basic legal protections and rights.

Next, Dr Cara Nine from the Department of Philosophy, UCC presented on her research into two key aspects of climate migration. First, Dr Nine examined the issues of territory and sovereignty in the context of disappearing states such as the small Pacific Islands that comprise Kiribati and Tuvalu. Applying John Locke’s proviso mechanism to territorial rights, Dr Nine queried when a state or people might become a candidate to gain sovereignty over new territory due to the disappearance of their original state. Dr Nine then examined the concept of place attachment, defined as the positively experienced bonds between persons and their environment, and identified specific interests including autonomy, self-esteem and personal identity that affect an individual’s personal interests.

Dr Dug Cubie from the School of Law, UCC addressed the legal categorisation of “climate refugees” and identified the lack of an accepted legal definition. In particular, Dr Cubie noted the multi-causal nature of migratory decisions and that, except in cases of catastrophic environmental degradation, attributing causation to climate change was challenging. Dr Cubie also highlighted the importance of considering potentially vulnerable people who remain in their homes due to ill-health, age or other reasons. The right to remain requires the application of human rights principles such as participation, empowerment and accountability to ensure adaptation with dignity. In particular, Dr Cubie noted the rights of access to information, participation in decision-making and effective access to justice arising from Principle 10 of the 1992 Rio Declaration on Environment and Development.

The seminar concluded with an open discussion with those in attendance on a variety of aspects, and the benefits of such inter-disciplinary events to share knowledge and experience across the university. For more information, see:

Book Review: ‘East West Street: On the Origins of Genocide and Crimes against Humanity’ by Philippe Sands

We are delighted to welcome this guest book review from Samantha Williams, PhD candidate at the CCJHR and School of Law, UCC.

East West Street: On the Origins of Genocide and Crimes against Humanity by Philippe Sands, Weidenfeld, 437 pp, £20.00, May 2016, ISBN 978 1 4746 0190 0

Within an ever-expanding body of literature concerning World War II (WWII), Philippe Sands’ latest publication is a welcome and unexpected addition. Flipping the genre on its head, East West Street is a beautifully crafted text, focusing on a series of extraordinary historical coincidences.

Professor Philippe Sands QC, a practising barrister and Professor of International Law at University College London, is well known internationally as a leading scholar of genocide and crimes against humanity. As a barrister, working from Matrix Chambers, he was involved in the creation of the International Criminal Court, as well as a number of high-profile cases relating to accusations of genocide.

East West Street weaves together a collective narrative which is focused on the interrelated lives of four men, Hersch Lauterpacht, Raphael Lemkin, Hans Frank and Leon Bucholz, the latter, Sands’ maternal grandfather.  Part family biography, part history, part memoir and with a hearty dash of legal thriller – Sands serves as both tour guide and detective as he effortlessly weaves together several interconnected narratives using the town of Lviv in Ukraine as a starting point. Representing a departure from his previous catalogue of academic works, Sands draws the reader into a work which is best described in his own words as “a tale of four men, two legal norms, one trial and one city.”

Through the first part of the book, Sands leads us through the lives of these four men with a keen and eagle-like precision, poring over the “muck of evidence” with the same dogged perseverance that he does when filling in gaps in his own family history. Forever delving and going to great lengths to piece together the background and context within the interconnecting lives of these four men.

The role of the infamous Nazi lawyer Hans Frank, the man responsible for the decrees instructing the rounding up and mass murder of Polish-Jews, is juxtaposed with Raphael Lemkin and Hersch Lauterpacht, two forefathers of international law and creators of the terms “genocide” and “crimes against humanity”. Frank is also the man also responsible for the murder of the entire families of Lauterpacht, Lemkin and Buchholz – all of whom were wiped out in places now seared into the pages of history, Treblinka, Warsaw and Auschwitz. It is no surprise that Sands chose to bookend the text with the trial of the Nazi war criminals – a stark reminder that beyond their similar upbringing in the town of Lviv the narrative of the story is intrinsically interwoven with the harsh realities of the Holocaust.

It is arguably this perseverance and unwavering determination which is most engaging and thrilling for the reader, who at times may be mistaken for forgetting that the emerging story is not in fact a thrilling detective story, but instead an all-absorbing mini-biography of Lauterpacht, Lemkin and Buccholz. Such detailed and masterfully executed detective work is the cornerstone which supports the magic of Sands’ work. This perseverance and evidence-based writing is where Sands’ strength as both a practitioner and as a writer come to fruition.

The second half of the book moves away from its biographical starting point to compare and contrast the conceptions of crimes against humanity and genocide and the opinions of the men who drafted these. For Lauterpacht, it was individuals who ought to be the focus of such a new crime and thus, crimes against humanity was conceived. For Lemkin, the atrocities of Nazi Germany had been aimed at individuals as members of distinct ethnic groups, Roma, Jews, and minorities in general – so for him this new crime needed to lend a previously unseen level of protection to such groups, thus genocide was created.

The apparently conflicting basis for these two new crimes are examined in depth within the book as Sands highlights both the thought process and advocacy that both men had to go through to have their terms included in the Nuremberg judgments. For Lemkin, this was much more of an uphill struggle than for Lauterpacht – Sands credits this fight for legitimacy as attributable to both Lemkin’s rather alienating personality and the wariness of the prosecutors to adopt such a radical new take on a state’s responsibility. Genocide signaled a clear departure from the ideas of state sovereignty, that a state can do whatever it wishes to those under its sovereign power and within its borders. While such reasoning is artfully explored, as one would expect of a barrister and Professor of International Law, Sands’ preference towards Lauterpacht is markedly clear:

I was instinctively sympathetic towards Lauterpacht’s view, which was motivated by a desire to reinforce the protection of each individual, irrespective of which group he or she happened to belong to, to limit the potent force of tribalism, not reinforce it … It was a rational, enlightened view.

This clearly marked bias serves somewhat to detract from the larger analysis of these two great men and the norms which they constructed. In a recent event held at UCL, On Law, Life and Literature, Sands was asked about such leanings, and answered frankly, arguing that the crime of genocide is now part of a hierarchy of international law norms, and its usage is often inexplicably (and perhaps mistakenly) favoured over crimes against humanity. For Sands, as both a practitioner and as an academic, this amounts to a huge oversight – “a direct consequence of the idea of a group having been elevated higher than that of the individual.”

This elevation is ultimately troubling for Sands as it “downplays the significant role that individuals play within international law.” However, in doing so it is suggested here that Sands somewhat oversimplifies the key differences between Lauterpacht and Lemkin’s approach to this rebirth of international law. Sands perhaps undersells the significance of what Lemkin was envisioning in his attempts to bring focus back to a renaissance or reimagining of previous incarnations of minority rights safeguards, such as the Polish Minority Treaty, also known as the ‘Little Versailles Treaty.’

This bias is also clear further on in the narrative when Sands notes that Lemkin’s approach was always likely to fail to win over the imaginations of the Allied Prosecutors. Sands attributes this to Lemkin’s flaws as an individual and general ‘unlikeability’. However, it is suggested that this was more likely to be due to the focus of his newly conceived idea. Particularly, as genocide’s focus was to protect the rights of minority groups from a repeat of the horrific atrocities of Nazi Germany.

A quick overview of the historical the context of the time, an era of civil unrest under Jim Crowe in America and the rise of unrest in the Colonies of the British Empire, highlights the dangerous that the idea of genocide with its protections afforded specifically to groups, could have caused. Specifically, as historically both the US and most notably the UK had treated minority groups in a way that the newly emerging crime of genocide could be applied to. Such opposition suggests the Lemkin’s idea might have been getting at something important and was ultimately widely applicable to the acts of the Allied Powers both prior to and post-WWII. Sands’ diminishing of historical context here suggests a slight oversight of the intrinsically institutionalised nature of ethnic and racial prejudice in most European States at that time.

It is also worth noting that weaving a personal, biographical story with an exploration of important legal norms and the figures behind these placed certain limitations upon the book and its relevance. Furthermore, Sands’ preferential treatment of Lauterpacht over the “less likeable” and “wayward,” Lemkin leads the book to descend dangerously close to hero worship (a point noted by Mark Mazower in his review of East West Street). However, such slight oversights ultimately do not detract significantly from what is a well-written and immaculately researched work.

In conclusion, East West Street is an impeccably detailed read, set within the historical context in a way which elevates it from other works focussed on the intricacies of international law and WWII literature. Part historical detective story, part family history, part legal thriller, Sands guides with a gentle hand and highly descriptive writing between past and present – as the stories of the men unfold in parallel. Unravelling this personal story, yet simultaneously weaving this into the lives of Lemkin and Lauterpacht – Sands keeps the reader engrossed throughout – even when discussing in great analytical detail certain elements of the Nuremberg Trials. For this, East West Street undoubtedly deserves the acclaim and literary accolades it has received since its publication in the summer of 2016. Yet one would expect nothing less from Sands.

Racial Stereotypes in Family Reunification Law: the case of Biao v. Denmark before the European Court of Human Rights

Dr Fulvia Staiano, former Irish Research Council Post-Doctoral fellow, CCJHR, School of Law, University College Cork

On 24 May 2016, the Grand Chamber of the European Court of Human Rights (ECtHR) identified an instance of indirect discrimination in the case of Biao v. Denmark. The case concerned the exclusion from family reunification of the applicants – a Danish citizen of Togolese origin and his Ghanaian citizen wife – on the grounds that they satisfied neither the so-called “attachment requirement” nor they fell within the scope of the “28-year rule”. As to the first, pursuant the 2000 Dutch Aliens Act only couples whose aggregate ties with Denmark are stronger than those with any other country may obtain a residence permit for the purpose of family reunification. The 28-year rule, however, exempts from such a requirement couples where one of the partners has been a Danish national for at least 28 years, or is a non-Danish citizen who was born and/or raised in Denmark and has lawfully resided there for at least 28 years.

Before the ECtHR, the applicants argued that the Danish family reunification regime generated indirect discrimination on the grounds of race and ethnic origin. They submitted that the majority of people who have been Danish citizens since birth are ethnically Danish, while those who acquire Danish citizenship later in life are more likely to be of other ethnic origin. Therefore, in their view the 28-year rule did not pursue a legitimate aim, and in any case it lacked a legitimate justification. The second section of the Chamber had not been receptive to this line of argumentation, choosing to frame the case merely as one of differential treatment between persons who had been Danish nationals for more than 28 years and persons who had been so for less than 28 years. The Grand Chamber, on the other hand, established that the core question posed by Biao was whether the 28-years rule amounted to indirect discrimination on the grounds of race and ethnic origin.

The ECtHR first assessed the existence of a disparate impact of the rules at issue on Danish citizens of non-Danish ethnic origin. Despite the unavailability of statistics on the allegedly disproportional prejudicial effect of the 28-year rule on this group, it established that it could be reasonably assumed that Danish citizens born and raised in Denmark would be of Danish ethnic origin – while those who acquired citizenship later in life would be of foreign ethnic origin. Thus, the 28-year rule indirectly favoured the former.

The ECtHR then moved on to consider the existence of a legitimate aim, considering that the burden of proof had shifted to the Government and that very weighty reasons would have to be put forward to justify the identified indirect discrimination. The ECtHR observed that the aim of the 28-year rule – as emerging from its preparatory works – was to allow Danish expatriates to return to Denmark and obtain family reunification there. Moreover, the extension of the attachment requirement to Danish citizens was justified in the preparatory works as a way to foster the integration of those among them who were originally of foreign extraction. In the Government’s view, indeed, the latter showed a tendency to marry persons from their country of origin, and this in turn allegedly hampered their integration. Recalling its landmark judgment of Konstantin Markin v. Russia, the ECtHR rejected such justifications as stereotypical. These biased assumptions therefore could not justify the difference in treatment at the disadvantaged of naturalised Danish citizens. Since it was not possible to identify other very weighty reasons unrelated to race and ethnic origin, the ECtHR recognised a breach of Art. 14 in conjunction with Art. 8 ECHR.

The Biao judgment constitutes an important deviation from the traditional reticence of the ECtHR to identify and reject stereotypical justification on the grounds of race and ethnicity within migration law. This feature was already observable in Abdulaziz, Cabales and Balkandali v. the United Kingdom, where the imposition of stricter conditions to obtain leave to remain in the United Kingdom exclusively to non-patrials was considered not “racist in character”. In the ECtHR’s view, the disparate impact of such norms on certain ethnic groups was simply due to the fact that “among those wishing to immigrate, some ethnic groups outnumbered others”.

In the case at issue, on the other hand, the ECtHR recognised the discriminatory character of racial stereotypes, arguing that the latter may not justify differential treatment. This type of reasoning is well established in the ECtHR jurisprudence in respect to gender stereotypes and sex discrimination (Marckx v. Belgium, the abovementioned Konstantin Markin, Vrountou v. Cyprus), but its application to race discrimination is a welcome novelty.

The effects of the Biao judgment on the Danish 28-years rule remain to be seen. Both concurring and dissenting opinions accompanying the decision highlighted the risk that the exemption from the general attachment requirement will be eliminated altogether. The possibility of further restrictions to the right to family reunification in Danish law in response to this judgment appears plausible. However, the principles established in Biao constitute an important limitation to the discretionary power of Council of Europe State Parties to grant preferential treatment to those born on their territory (as outlined from Abdulaziz onwards). The newly found awareness of the ECtHR that such differentiations can produce a disparate impact on the grounds of race and ethnic origin is a significant dent to this tenet.

Dr Fulvia Staiano’s recent book is now available: The Human Rights of Migrant Women in International and European Law (2016)

 

The Story of King Tex: A Modern Allegory

Dr Dug Cubie

1st February 2017

This blog presents a modern allegory (with apologies to Lon Fuller).

In Lon Fuller’s 1969 book The Morality of Law, Fuller set out the story of King Rex, as a cautionary tale of the need for clarity, consistency and predictability within legal systems. Profoundly influenced by the horrors of the 20th Century, in particular the Nazi regime in Germany and the Stalinist regime in the USSR, Fuller desired to establish certain benchmarks for legal systems based on his view of the “inner morality of the law.” Fuller argued that the inner morality of a legal system was based first on the morality of duty (the duty to provide basic rules for the ordering of society) and then the morality of aspiration (the aspiration of excellence within a legal system). Surprisingly little of Lon Fuller’s account of King Rex needs to be changed to fairly accurately reflect the start of President Trump’s administration…

So, as Fuller might have written: This story concerns the unhappy reign of a monarch who bore the convenient, but not very imaginative and not even very regal sounding name of Tex.

Eight Ways to Fail to Make Law

Tex came to the throne with the zeal of a reformer. He considered that the greatest failure of his predecessors had been in the field of law. For generations the legal system had known nothing like a basic reform. Procedures of trial were cumbersome, the rules of law spoke in the archaic tongue of another age, justice was expensive, the judges were slovenly and sometimes corrupt. Tex was resolved to remedy all this and to make his name in history as a great lawgiver. It was his unhappy fate to fail in this ambition. Indeed, he failed spectacularly, since not only did he not succeed in introducing the needed reforms, but he never even succeeded in creating any law at all, good or bad.

His first official act was, however, dramatic and propitious. Since he needed a clean slate on which to write, he announced to his subjects the immediate repeal of all existing law, of whatever kind. He then set about drafting a new code. Unfortunately, trained as a lonely property developer, his education had been very defective. In particular, he found himself incapable of making even the simplest generalisations. Though not lacking in confidence when it came to deciding specific controversies, the effort to give articulate reasons for any conclusion strained his capacities to the breaking point.

Becoming aware of his limitations, Tex gave up the project of a code and announced to his subjects that henceforth he would act as a judge via Twitter in any disputes that might arise among them. In this way under the stimulus of a variety of cases he hoped that his latent powers of generalisation might develop and, proceeding case by case, he would gradually work out a system of rules that could be incorporated in a code. Unfortunately the defects in his education were more deep-seated than he had supposed. The venture failed completely. After he had handed down literally hundreds of fabulous decisions within the confines of 140 characters neither he nor his subjects could detect in those decisions any pattern whatsoever. Such tentatives toward generalisation as were to be found in his opinions only compounded the confusion, for they gave false leads and alternative facts to his subjects and threw his own meagre powers of judgment off balance in the decision of later cases.

After this fiasco Tex realised it was necessary to take a fresh start. His first move was to subscribe to a course of lessons in generalisation. With his intellectual powers thus fortified, he resumed the project of a code and, after many hours of solitary labour, succeeded in preparing a fairly lengthy Executive Order. He was still not confident, however, that he had fully overcome his previous defects. Accordingly, he announced to his subjects on Twitter that he had written out a GREAT CODE and would henceforth be governed by it in deciding cases, but that for an indefinite future the contents of the code would remain an official state secret, known only to him and his family. To Tex’s surprise this sensible plan was deeply resented by his subjects, who took to the streets in their thousands to protest. They declared it was very unpleasant to have one’s case decided by rules when there was no way of knowing what those rules were.

Stunned by this rejection, Tex undertook an earnest inventory of his personal strengths (which were legion) and weaknesses (of which he had none). He decided that life had taught him one clear lesson, namely, that it is easier to decide things with the aid of hindsight and by reflecting on the good old days than it is to attempt to foresee and control the future. Not only did hindsight make it easier to decide cases, but – and this was of supreme importance to Tex – it made it easier to give reasons. Deciding to capitalise on this insight, Tex hit on the following plan. At the beginning of each calender year he would decide all the controversies that had arisen among his subjects during the preceding year. He would accompany his decisions with a full statement of reasons. Naturally, the reasons thus given would be understood as not controlling decisions in future years, for that would be to defeat the whole purpose of the new arrangement, which was to gain the advantages of hindsight. Tex confidently announced the new plan to his subjects over Twitter at 3am, observing that he was going to publish the full text of his judgements with the rules applied by him, thus meeting the chief objection to the old plan. Tex’s subjects received this announcement in silence, then quietly explained through their more enlightened democratic representatives that when they said they needed to know the rules, they meant they needed to know them in advance so they could act on them. Tex muttered something to the effect that they might have made that point a little clearer, but said he would see what could be done.

Tex now realised that there was no escape from a published code declaring the rules to be applied in future disputes. Continuing his lessons in generalisation, Tex worked diligently on a revised GREATER CODE, and finally Tweeted that it would shortly be published. This announcement was received with universal gratification. The dismay of Tex’s subjects was all the more intense, therefore, when his code became available and it was discovered that it was truly a masterpiece of obscurity. Legal experts who studied it declared that there was not a single sentence in it that could be understood either by an ordinary citizen or by a trained lawyer. Indignational became general; and soon a protest appeared before Tex’s gaudy palace of gold carrying signs that read, “How can anybody follow discriminatory immigration rules that nobody can understand?”

The GREATER CODE was quickly withdrawn. Reluctantly recognising for the first time that he needed assistance, Tex put a staff of experts who he hadn’t purged to work on a revision. He instructed them to leave the substance untouched, but to clarify the expression throughout. The resulting GREATEST CODE was a model of clarity, but as it was studied it became apparent that its new clarity had merely brought to light that it was honeycombed with contradictions. It was reliably reported by respected journalists that there was not a single provision in the code that was not nullified by another provision inconsistent with it. An even larger protest appeared before the golden palace, carrying signs that read, “This time the king made himself clear – in both directions.”

Once again the code was withdrawn for revision. By now, however, Tex had lost patience with his subjects and the negative attidude they seemed to adopt toward everything he tried to do for them. He decided to teach them a lesson and put an end to their carping. He instructed his remaining experts to purge the code of contradictions, but at the same time to stiffen drastically every requirement contained in it and to add a long list of new crimes such as practicing a different religion or being an immigrant. Thus, where before individuals summoned to the throne were given ten days in which to report, in the revision the time was cut to ten seconds. It was made a crime, punishable by ten years imprisonment to cough, sneeze, hiccough, faint or fall down in the presence of the king (he stressed that he was a germaphobe). It was made treason not to understand, believe in, and correctly profess that fossil fuels and human activity have no impact on climate change whatsoever.

When this GREATEST EVER CODE was sent out on Twitter a near revolution resulted. Leading citizens declared their intention to flout its provisions. Someone discovered in an ancient author a passage that seemed apt: “To command what cannot be done is not to make law: it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos.” Soon this passage was being quoted in a hundred petitions to the king.

The code was again withdrawn and a staff of experts chaired with the task of revision. Tex’s instructions to the experts were that whenever they encountered a rule requiring an impossibility, it should be revised to make compliance possible. It turned out that to accomplish this result every provision in the code had to be substantially rewritten. The final result was, however, a triumph of draftsmanship. It was clear, consistent with itself, and demanded nothing of the subject that did not lie easily within their powers. It was printed and distributed free of charge through social media.

However, before the effective date for the new GREATEST EVER CODE, REALLY had arrived, it was discovered that so much time had been spent in successive revisions of Tex’s original draft, that the substance of the code had been seriously overtaken by events. Ever since Tex assumed the throne there had been a suspension of ordinary legal processes and this had brought about a climate of uncertainty for the economy and institutions of the country. Accommodation to these altered conditions required many changes of substance in the law. Accordingly as soon as the new code became legally effective, it was subjected to a daily stream of amendments. Again popular discontent mounted; an anonymous blog appeared online carrying scurrilous cartoons of the king and a leading article with the title: “A law that changes every day is worse than no law at all.”

Within a short time this source of discontent began to cure itself as the pace of amendment gradually slackened. Before this had occurred to any noticeable degree, however, Tex announced an important decision. Reflecting on the misadventures of his reign, he concluded that much of the trouble lay in bad advice he had received from experts. He accordingly declared he was reassuming the judicial power in his own person. In this way he could directly control the application of the new code and insure his country against another crisis. He began to spend practically all of his time hearing and deciding cases arising under the new code.

As the king proceeded with this task, it seemed to bring a belated blossoming his long dormant powers of generalisation. His opinions began, indeed, to reveal a confident and almost exuberant virtuosity as he deftly distinguished his own previous decisions, exposed the principles on which he acted, and laid down guidelines for the disposition of future controversies. For Tex’s subjects a new day seemed about to dawn when they could finally conform their conduct to a coherent body of rules.

This hope was, however, soon shattered. As the online record of Tex’s judgments became available and were subjected to closer study, his subjects were appalled to discover that there existed no discernible relation between those judgments and the code they purported to apply. Insofar as it found expression in the actual disposition of controversies, the new code might just as well have not existed at all. Yet in virtually every one of his decisions Tex declared and redeclared the code to be the basic law of his kingdom.

Leading citizens from all walks of life began to hold private meetings to discuss what measures, short of open revolt, could be taken to get the king away from the bench and back on the throne. While these discussions were going on, Tex was impeached for nepotism and conflict of interests, old before his time and deeply unloved by his subjects.

The first act of his successor, President Hex, was to abolish the monarchy and introduce genuine democracy and the rule of law based on the values of non-discrimination and accountability of elected officials.

Coda: During their famous debates in the 1950s over the legality of the Nazi regime and so-called grudge informers, Lon Fuller and HLA Hart disagreed on the role of morality and the law. Hart was swift to point out that Fuller’s concept of the inner morality of the law, and his eight principles of legality, could actually uphold unjust laws. Hart argued that Fuller’s procedural natural law approach failed to engage with the substantive morality of flawed laws, as a legal system may be structurally sound yet still allow unjust laws. Fuller meanwhile countered that when people are ‘compelled to explain and justify their decisions, the effect will generally be to pull those decisions towards goodness…’ Both Hart and Fuller’s arguments have resonance today. The cautionary tale of King Rex was based on some of the most brutal regimes in history. One can only hope that these warnings are heeded over the next four years.

With thanks to my legal theory colleagues Patrick O’Callaghan and Natasa Mavronicola for their illuminating comments.

On World Refugee Day: a crisis of protection in Europe

REFUGEES: A CRISIS OF PROTECTION IN EUROPE  (Siobhán Mullally)

UNHCRThe crisis in Europe is more properly understood as a crisis of protection and of policy. It is fundamentally a crisis of human rights. Core protections provided to refugees and migrants by European and international law, including the right to seek and to enjoy asylum from persecution and protection against refoulement, have come under threat. Faced with forced displacement of almost five million Syrian refugees, the focus of responses has continued to be on deterrence, deflection and return. As Wendy Brown has noted, at a time when neoliberals, cosmopolitans and humanitarians fantasize a world without borders, nation-states continue to exhibit a passion for wall building. In the European Union, the ‘stark physicalism’ of walls and fences have been supplemented by the launching of a military operation, EUNAVFOR-Med, which includes among its stated aims, the prevention of loss of life at sea, preventing ‘illegal migration flows’ and disruption of the ‘business model of smugglers’.

The business model of smugglers, however, is closely linked to the limited accessibility of pathways to regular migration, and the absence of a comprehensive resettlement response to the humanitarian crisis triggered by millions of people forcibly displaced by conflict.  The reluctance to issue humanitarian visas, or to expand the scope of family reunification, combined with continued use of carrier sanctions underpins the very business model that the EUNAVFOR-Med operation seeks to disrupt. Within the context of the EU’s Common European Asylum System, the uneven sharing of responsibility for protection among Member States, and divergence in the protection afforded to refugees and asylum seekers, remain to be addressed. Against this background, core principles underpinning the EU’s foundational treaties – fair sharing of responsibility and solidarity – are not being met.

This crisis raises questions as to the limits and potential of human rights norms, when invoked by migrants and refugees. As such, it also raise questions as to the current state of play of both the theory and practice of international law, and the conflicting interests that underpin its shifting frontiers. These conflicts include legal reforms that reflect, as Brown notes, simultaneous opening and blocking, ‘universalization combined with exclusion and stratification’ – an apt description of the politics of the 2016 EU-Turkey agreement.   

Protection against refoulement

The Agreement – including its very legal status as an ‘Agreement’ – is now the subject of several challenges that raise questions as to its compatibility with the prohibition of refoulement. Recent judgments of the European Court of Human Rights have highlighted the positive procedural obligations on states arising from Article 4, Protocol no.4 to the Convention. In Klaifia and Others v Italy – (a case now pending before the Grand Chamber) – the Court held, by five votes to two, that the applicants had been subjected to a collective expulsion. The ‘mere introduction of an identification procedure’ was not considered sufficient in itself to rule out the existence of a collective expulsion. A number of factors led the Court to the conclusion that the impugned expulsion was collective in nature: There was no reference to the personal situation of applicants in the refusal-of-entry orders; there was no evidence that individual interviews concerning the specific situation of each applicant had taken place prior to the issuance of the orders; and perhaps, most tellingly, a large number of Tunisian nationals – the same nationality as the applicants – received the refusal-of-entry orders around the same time. Khalifia followed on from earlier judgments by the Court on collective expulsions, Hirsi Jamaa and Others v. Italy and Sharifi and Others v. Italy and Greecein which the absence of ‘sufficient guarantees’  demonstrating that the personal circumstances of each of the migrants concerned had been ‘genuinely and individually taken into account’ was critical.

These judgments of the Court weigh heavily on the legal issues arising under the implementation of the EU-Turkey agreement. The judgment of the Court in Khalifia is particularly instructive, given its references to ‘exceptional waves of immigration’, and its acknowledgment of the many duties assumed by the Italian authorities, including rescue at sea, and provision for the health and accommodation of migrants on arrival on the island of Lampedusa. In a particularly important statement, the Court noted, however, that those factors cannot exempt the State from its obligation to guarantee conditions that are ‘compatible with respect for human dignity to all individuals’.

The collective expulsion cases reveal a willingness on the part of states to test the limits of legality, including of the safe third country concept. In Khlaifia, Judge Keller, noted that the preliminary investigations judge of Palermo had invoked the state of necessity (stato di necessità) to justify the ‘immediate transfers’ of migrants. This argument, and related arguments concerning international law and state responsibility in times of ‘distress’, were rejected by Judge Keller.

The rush to conclude the Agreement is likely to come under continuing scrutiny, particularly given the trust placed in the Greek asylum determination procedures and capacity for reception. At the time its conclusion, the Committee of Ministers of the Council of Europe had not yet closed its supervision of execution of the judgment in M.S.S. v. Belgium and Greece.  Of particular note in the Court’s judgment, is the Concurring Opinion of Judge Rozakis, in which he took the opportunity to highlight the deficiencies of EU immigration policy, including the Dublin II Regulation (as it then was). The Regulation, he noted, did not reflect the present realities, or ‘do justice to the disproportionate burden that falls to the Greek immigration authorities.’ His comments were prescient, and have only increased in relevance subsequently. There was, he said, ‘an urgent need for a comprehensive reconsideration of the existing European legal regime.’ Despite this urgency, however, this comprehensive reconsideration has yet to be realised. Proposals for a fairer process of allocation of responsibility continue to be contested. Against the background of a ‘crisis situation in the Mediterranean’, even the limited ‘temporary and exceptional’ relocation decision adopted by the European Council in 2015 is facing legal challenges by Hungary and Slovakia.

In a carefully worded assessment of the legal considerations of returning asylum seekers and refugees from Greece to Turkey, UNHCR cautions that ‘sufficient protection’ must be ensured before the safe third country and first country of asylum concepts can be applied. The requirement of ‘sufficient protection’ is stated in Article 35 of the Recast Asylum Procedures Directive, and is considered by UNHCR to require more than a guarantee against refoulement.

The legislative reforms and the legal underpinning of the Agreement itself, however, was challenged by a decision of a Greek appeals tribunal, sitting in Lesbos, refusing to recognise Turkey as a safe third country. The tribunal decision found that the temporary protection afforded by Turkey to the appellant, as a Syrian citizen, ‘does not offer him rights equivalent to those required by the Geneva convention.’ The decision echoes concerns expressed with regard to the level of protection afforded in Turkey, and brings into question the EU’s presumptions as to the legality of its return and resettlement trade-off.

The position of children on the move, and in particular, unaccompanied minors, in Europe has attracted particular concern. In March 2016, the Council of Europe Secretary General wrote to all 47 Member States of the Council of Europe setting out a list of proposals for immediate action to ensure better protection of migrant and asylum seeking children. The GRETAletter cites the findings of the Council of Europe Group of Experts on Action against Trafficking (GRETA) that significant gaps in the protection of unaccompanied minors persist in most Council of Europe Member States, with often tragic consequences.[1]

The phenomenon of ‘missing migrant children’ is not new. However, the conceptual and practical challenges posed by increasing numbers of migrant children in Europe has brought the limits of state responses into sharp focus. Against this background, the question of how child and adolescent migrants can translate the principles of international law into meaningful human rights protections’ remains open.

Core norms of the Law of the Sea – obligations of search and rescue, of assisting persons in distress at sea and delivering survivors to a place of safety – have gained prominence in Europe’s crisis of protection. There have been significant failures of the maritime legal framework, including disputes as to the proper demarcation of Search and Rescue zones, and significant loss of life – tragically captured in Dutch MEP, Tineke Strike’s report on the ‘left-to-die’ boat incident. While the technical norms of the Law of the Sea have sometimes provided a comforting tool to allay fears of further dereliction of duty, moving beyond rescue has proven more difficult.

The EU-Turkey agreement marks a process of de-juridification, an enactment of limits. While legal challenges and the claiming of rights will persist, the fundamental reforms required to ensure safe passage to those seeking protection, and the expansion of pathways to lawful migration, remain elusive.

[1] Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA), Fifth General Report on GRETA’s Activities, (2016)

Mellet v Ireland: Legal Status of the UN Human Rights Committee’s ‘Views’

MellettFollowing the UN Human Rights Committee’s decision in Mellet v Ireland, handed down on June 9th 2016, a number of questions have been raised as to the legal status of the Committee’s views. The Taoiseach Enda Kenny has noted that the Committee is not like the ‘European Court’. On this, he is, of course, correct. On his comment that the Committee’s views are ‘non-binding’ – it’s a bit more complicated.

This short post focuses on the questions raised as to the legal status of the Committee’s views, and the obligations that they give rise to for the State. While this may seem to be a point of limited interest to international lawyers, it is in fact a critical issue for the enforcement and implementation of international human rights law. Challenges to the competence of UN bodies, and the status of their findings in the human rights domain, are not infrequent. This challenge, and the consequent enforcement gap, is one that has been recognised by the UN Human Rights Committee.

Its General Comment no.33 “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights” specifically addresses this challenge. As the Committee notes, its functions in considering individual communications are “not that of a judicial body,” However, they go on to point out that the views issued by the Committee under the Optional Protocol exhibit some important characteristics of a judicial decision, and are ‘arrived at in a judicial spirit’. That ‘judicial spirit’ includes, ‘the impartiality and independence of Committee members, the considered interpretation of the language of the Covenant, and the determinative character of the decisions.’ (para.11)

The legal basis for the Committee’s competence to issue ‘views’ on individual communications and State’s compliance, or lack thereof, with the Covenant, derive from the Covenant and the Optional Protocol themselves. On this, it is of interest to note that the Protocol is an optional extra. Ireland, has chosen not only to ratify the Covenant itself, but also the Optional Protocol, thereby specifically recognising the competence of the UN Human Rights Committee to give an authoritative interpretation of the State’s obligations under the ICCPR. Specifically, as noted by the Irish Supreme Court in Kavanagh v Governor of Mountjoy Prison,  [2002] IESC 13 (01 March 2002),the Optional Protocol enables the Human Rights Committee “to receive and consider …communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant …..” Article 1 of the Protocol provides that a “State Party that becomes a party to the …. Protocol recognises the competence of the Committee…” in respect of such individual claims.

The status of the Committee’s views and the competence of the Committee are linked to wider principles of international law, including those stated in the Vienna Convention on the Law of Treaties. The principle of pacta sunt servanda is enshrined in Article 26 of the VCLT: ‘Every treaty in force is binding upon the parties to it and must be performed in good faith.’

Linked to this general principle is a core norm of customary international law and one that is particularly relevant to the current debate in Ireland: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 27 VCLT). This is without prejudice to the provisions of Article 46 of the VCLT, concerning the competence of states to conclude treaties. And, in the Irish context, the precise legal meaning of the reference to a provision of internal law regarding competence to conclude treaties has generated both litigation and debate, particularly with regard to Ireland’s relationship with the European Union, and to Anglo-Irish relations (See Crottey and McGimpseyin particular). (See Clive Symmons comments on this potential clash here).

Of relevance also to this debate is the characterization of an act as a ‘wrongful act’ under international law, and the International Law of State Responsibility. As noted by the International Law Commission, affirmed by the General Assembly, the characterization of an act as ‘internationally wrongful’ is not affected by the characterization of the same act as lawful by internal law.  It is of significance also that Article 1 of the ILC’s Articles on Responsibility of States for Internationally Wrongful Act, does not confine their scope to the responsibility of states towards other states, which, as James Crawford has noted,  would have significantly curtailed the scope of the obligations covered by the Articles and ‘could have stifled the development of international law.’

In the text of the ICCPR itself, it is important to remember the treaty obligation on all States Parties to provide an ‘effective remedy’ for a violation of the Covenant (article 2(3)(a)). This obligation is re-stated in the final paragraphs of the Committee’s views in Mellet v Ireland, and forms part of the consistent wording of its views. (See also General Comment no.33 para.14)

And so, although the Committee’s views are not those of a judicial body, and do not have a status equivalent to that of a judgment of an international court, they do have legal consequences and do give rise to legal obligations for the State. Indeed in Kavanagh v Governor of Mountjoy Prison, Justice Fennelly, speaking for the Supreme Court, commented that he was ‘prepared to assume that the State may, by entering into an international agreement, create a legitimate expectation that its agencies will respect its terms.’ (para.43)

The Irish Government has been slow in the past to give effect to views of the UN Human Rights Committee. This failure was the subject of the proceedings before the Supreme Court in the Kavanagh case, in which the appellant sought inter alia, a declaration that section 47(2) of the Offences against the State Act, 1939 was incompatible with the  Covenant on Civil and Political Rights and was repugnant to the Constitution ,in particular, Articles 29(2) and (3). The case followed on from the finding of a violation by Ireland of Article 26 ICCPR (guarantee of equality before the law) by the UN Human Rights Committee in Kavanagh v Ireland  concerning the role and scope of jurisdiction of the Special Criminal Court. The Committee upheld Kavanagh’s complaint of a violation of article 26 observing that:

“No reasons are required to be given for the decisions that the Special Criminal Court would be “proper”, or that the ordinary courts are “inadequate,” and no reasons for the decision in the particular case has been provided to the Committee. Moreover, judicial Review of the DPP’s decisions is effectively restricted to the most exceptional and virtually undemonstrable circumstances.”

The Committee went on to note that “the State Party [had] failed to demonstrate that the decision to try the author before the Special Criminal Court was based on reasonable and objective grounds.” It continued: “Accordingly, the Committee concludes that the author’s right under article 26 to equality before the law and to the equal protection of the law has been violated.”

Before the Supreme Court, Kavanagh argued that Article 29(3) of the Irish Constitution, effectively constitutionalises the general principles of international law, including the principles of equal treatment. Given the UN Human Rights Committee’s findings of a violation of Article 26 also in Mellett v Ireland, this argument takes on particular significance. In support of this argument, counsel for Kavanagh, Dr Forde, invoked the dissenting judgment of Judge Tanaka in the South West Africa Cases (1966) on “the essence and nature of fundamental rights ..[in the context of the United Nations Charter] … in which the principle of equality before the law occupies the most important part ….”

His argument, however, was not accepted by the Supreme Court. Invoking again its findings in In Re O Láighleis [1960] IR 93, the Court concluded that article 29 (3) confers no rights on individuals. While accepting that O’Láighleis  was ‘probably correct in its time’, Dr Forde had argued that the substance of the principles of international law had ‘changed so radically’ that the case would no longer be decided in the same way. Given, he argued, that these principles take effect in Irish law by virtue of article 29(3), there is thus no need for their enactment into Irish law pursuant to art 29 (6).

It was a nuanced argument, recognising the diverse sources of international law and seeking to move beyond the limits imposed by a strict dualist approach to the relationship between domestic and international law.  The Supreme Court was not to be persuaded. The O’Láighleis case, Fennelly J concluded, remains the law, having been followed in other cases: see, for example State (Sumers Jennings) v Furlong [1966] IR 183; State (Gilliland) v Governor of Mountjoy Prison [1987] 201. O Laighleis,  in his view, had ‘stood the test of time’,  because the words that it interpreted were, ‘clear beyond argument and do not admit of any other construction.’

Of interest is the somewhat different approach taken by the High Court and Supreme Court in cases concerning Ireland’s obligations under the 1951 Convention relating to the Status of Refugees. In Fakih & Ors v. Minister for Justice,[1]  the High Court held that a letter sent by the Minister for Justice to the UNHCR representative in London, Mr von Arnim, had given rise to a legitimate expectation on the part of the applicant that his asylum claim would be assessed in accordance with the procedures laid down in the 1951 Convention. In Gutrani v. Minister for Justice,[2]  the Supreme Court, speaking through McCarthy J, held that the same result followed, not because of any legitimate expectation that the letter may have given rise to, but simply because of the binding undertaking given by the Minister. Thus, the 1951 Convention, not yet incorporated into domestic law, was given indirect effect, circumventing the strict requirements of Article 29.6 of the Constitution.

(I have discussed these cases in the context of transnational judicial dialogue in asylum law in Goodwin Gill and Lambert eds. The Limits of Transnational Law (CUP: 2010) It may, of course, be of some relevance, that at the time of these judgments, giving effect to the requirements of the 1951 Refugee Convention, would have been considerably less controversial than questioning the role of the Special Criminal Court, or the interpretation of Article 40.3.3 of the Irish Constitution.)

Beyond and within the law, there is of course politics. And as the now President of the UN Committee on the Elimination of Racial Discrimination (CERD), Dr Anastasia Crickley, commented earlier this year, it is important to remember that the Irish Government in an exercise of its sovereign authority, has chosen to ratify the ICCPR and other UN human rights treaties. It has, simply by this act of ratification, incurred an obligation to ‘all those subject to its jurisdiction’ to give effect to the rights protected by the Covenant. Those rights include the right to be free from cruel, inhuman or degrading treatment, the right to be free from arbitrary interference with one’s privacy, and to equality before the law and equal protection of the law.

[1] Fakih & Ors v. Minister for Justice [1993] ILRM 274.

[2]Gutrani v. Minister for Justice [1993] 2 IR 427.

 

Forensics: ID to Intelligence

We are delighted to welcome this guest post from Eimear Moroney, IRC Postgraduate Scholar and PhD candidate at the CCJHR and School of Law, UCC

From Sherlock Holmes at the end of the 19th century, to the emergence in the early 2000s of CSI and its televisual progeny, to the current ‘true crime’ serialisation phenomenon, public interest in forensics has long been piqued. In practice, cold cases are being re-opened and long-condemned individuals have been exonerated on foot of forensic (especially DNA) evidence, owing to to: (a) heightened modes of scientific analysis; and (b) the likes of the Innocence Network, a global association of not-for-profit organisations, which strive to prove the innocence of the wrongly convicted (see further: Irish Innocence Project). Following the activation of Ireland’s DNA Database System in November 2015, the nexus between forensic evidence, guilt and innocence has never been more topical.

The forensic science of popular cognisance developed, in the aftermath of the industrial revolution, out of concern to identify criminals for the purpose of meting out appropriate punishment: differential punishment was accorded to first time offenders and recidivists. This focus on repeat offenders manifested in Ireland and England through the enactment of the Habitual Criminals Act 1869 and the Prevention of Crimes Act 1871, the latter of which prescribed the maintenance of a Habitual Crime Register, entailing the photographing and measuring of prisoners. This anthropometric system, which measured prisoners’ heads and limbs, subsequently incorporated fingerprint marks. Less cumbersome and ultimately more accurate, fingerprinting supplanted the metric system.

As forensic techniques developed, policing agencies realised the Locardian principle “every contact leaves a trace” could play a role in criminal investigations. This role was traditionally conceived as a corroborative one within a case construction model of policing: forensic evidence was used to build up a case against an identified suspect for prosecutorial purposes.

However, a move away from a reductive model of reactive policing towards proactive, intelligence-led policing is increasingly discernible, both internationally and more locally: see for example, An Garda Síochána Policing Plans 2014 and 2015. Concurrently, Williams has suggested that the true utility of forensic science lies in intelligence-led policing, “… in other words as information to further direct ongoing criminal investigations and disruptions, rather than as props in the dramaturgy of a criminal trial.”

In Ireland, a 2007 report entitled Review of Resource Needs in the Forensic Science Laboratory and the Wider Scientific Context in Ireland  averred that “[t]he work of a forensic laboratory does not only concern evidence for the courts but should also give impulses to the investigation. The findings of the laboratory can often give valuable information that can assist the investigation or can be used as intelligence.” This theme has grown roots in the context of Ireland’s long-gestated DNA database,  from the Law Reform Commission, who in 2005, described the proposed database as an “intelligence tool,” to the Minister for Justice and Equality, who in November 2015 described the database as “a high quality intelligence tool” and “a hugely significant development in assisting the Garda Síochána in the investigation of crime.”

The utility of any database is necessarily commensurate with the quantity of samples contained therein. Accordingly, the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 sanctions the sampling of detained suspects, so as to generate a profile for the reference index of the DNA database system, under the authorisation of a member of An Garda Síochána not below the rank of Sergeant. In turn, this profile may be compared with profiles held in the crime scene index and the missing and unknown persons index. The sole fact of detention for a “relevant offence” is sufficient to ground the taking of a sample for this purpose. However, in order for this profile to be used for evidential purposes, the authorisation of a member of An Garda Síochána not below the rank of Inspector is required. To authorise same, the member must have reasonable grounds for suspecting the involvement of the detainee in the commission of the offence for which they are detained, and furthermore, that the sample will tend to confirm or disprove the involvement of the detainee in the offence.

In acknowledging that information generated by forensic science can form part of the detection process notwithstanding that such data is not (or possibly was never intended to be) admitted into evidence, the 2014 Act arguably places intelligence-led policing on a statutory footing. It follows whilst forensic science was initially used to compile and maintain a record of criminal identity, this very record-keeping function has had a renaissance in the Digital Age.

However, it cannot be forgotten that forensically generated information is nonetheless “potential evidence.”  To quote Ashworth and Redmayne, “[t]he possible end result of the process is adjudicative: a trial. Whether a trial will result will depend on many other factors. …  But what matters is the potential of the probability. Criminal procedure is a process that may lead to trial.”

Notwithstanding that a minuscule fraction of offences proceeds to a contested trial, the criminal justice continuum, and any analysis thereof, must be ultimately trial-oriented. Whether providing the impetus to an investigation, or eliminating potential suspects, it is clear that forensic science can impact the course of a criminal case prior to trial. After all, to advance along the continuum from criminal investigation to trial entails traversing a number of preliminary stages: a negative determination with respect to the decision to prefer charges results in exodus from the continuum prior to trial. Hence, the very “evidential potential” attaching to forensic data, from fingerprints to DNA analyses, may impact, or indeed determine, decisions throughout criminal process, including those pre-trial decisions relating to arrest, prosecution and plea.

Having regard to the potential for forensic science to play a determinative role in the pre-trial process, there is a heightened need to ensure the reliability of forensic science throughout the low-visibility portions of the continuum. When tendered as evidence at trial, forensic data is, in theory at least, subjected to the checks and balances of the adversarial process: it must first be admitted into evidence before being subjected to robust cross-examination. However, there is no equivalent oversight of forensic evidence pre-trial.

This lack of scrutiny is all the more disquieting given that, internationally, forensic science has received bad press in recent years: for example, see Broeders (reference below); here; and here. However, caution must be exercised before extrapolating from other jurisdictions.

Two agencies conduct forensic analysis for the State in Ireland, Forensic Science Ireland (FSI) and the Garda Technical Bureau (GTB), both of which sought and achieved accreditation to International Organisation for Standardisation (ISO) 17025, the international laboratory standard for calibration and testing (FSI in 2002 and more recently, the GTB in 2016). Maintaining this status requires that the laboratories must pass annual, independent inspections, whilst all routinely used methods must be validated and proficiency trials must be conducted. The efforts of FSI and the GTB in this respect must be recognised not only as positive developments but also as necessary advancements, having regard to the advent of forensic databases and the newfound emphasis on proactive, intelligence-led policing.

 

Non-hyperlinked References

Ashworth, A. & Redmayne, M., The Criminal Process, 3rd ed. (Oxford: OUP, 2005)

Barnes, J.G., “History” in National Institute of Justice, The Fingerprint Sourcebook (Washington DC: US Department of Justice; Office of Justice Programs; National Institute of Justice, 2012)

Broeders, A.P.A, “Of earprints, fingerprints, scent dogs, cot deaths and cognitive contamination-a brief look at the present state of play in the forensic arena” (2006) 159 Forensic Science International 148

Cole, S.A., “Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate” in D. Lazer, ed. DNA and the Criminal Justice System: The Technology of Justice (MIT Press, 2004)

Cole, S.A., Suspect Identities: A History of Fingerprinting and Criminal Identification (Cambridge: Harvard University Press, 2009)

Finn, J., “Photographing Fingerprints: Data Collection and State Surveillance” (2005) 3(1) Surveillance and Society 21

Littlefield, M.M., “Historicizing CSI  and its Effect(s): The Real and Representational in American Scientific Detective Fiction and Print News Media, 1902-1935 (2011) 7 Crime Media Culture 133

McCartney, C., Forensic Identification and Criminal Justice: Forensic science, justice and risk (Devon: Willan, 2006)

Redmayne, M., Expert Evidence and Criminal Justice (Oxford: OUP, 2001)

Roberts, P., “Science in the Criminal Process” (1994) 14(4) Oxford Journal of Legal Studies 469

Schweitzer, N.J. & Saks M.J., “The CSI Effect: Popular fiction about forensic science affects the public’s expectations about real forensic science” (2007) 47 Jurimetrics 357

Thornton, J.I., “Uses and Abuses of Forensic Science” (1983) 69 ABA 289

Twining, W., Rethinking Evidence: Exploratory Essays, 2nd ed. (Cambridge, CUP, 2006)

Williams, R., “Policing and Forensic Science” in T. Newburn, Handbook of Policing, 2nd ed. (Devon: Willan, 2008)

CONVERGING LAW, FOUR POINTS OF VULNERABILITY AND THE SUPPOSED INVIOLABLE SPACES OF LEARNING

We are delighted to welcome this guest post from Sarah M. Field. Sarah has a blend of academic and applied experience supporting the fulfillment of international human rights law through international research and legal advocacy projects. She is presently a National Project Coordinator of the cross-European GENOVATE Project at University College Cork, Ireland and blogs occasionally at rights-streams.com. This is the first of a four part series; the second part ‘Converging law, equivocation and delimits on the supposed inviolability of spaces of learning’ is accessible here; the others are forthcoming and will be cross-posted here

CCJHR blog image

Image courtesy of Marcus Bleasdale

 

Chibok. Rafah. Peshawar. Garassa. Donetsk. Aleppo. Sana’a.

Disparate places, among others, bound by attacks—acts of violence—on the supposed inviolable spaces of lower and higher learning, schools and universities, among others. The attacks and their impact—the hurt and harm—on children and adults’ embodied selves resonate far beyond their geographical axis. Or, to invoke the Martens Clause, they may be supposed as violating ‘[…] the laws of humanity and the dictates of public conscience.’ And, in doing so, they undergird the continuing juristic shift of the past century towards the international legal protection of our ‘embodied vulnerability’ to hurt and harm of all forms.* Like other serious violations of international law, then, the attacks transcend the—sometime—distance between us.  But is the clarity of our collective sense of justice reflected in the law?

To an extent, the answer lies in the space: the spark to condemnation relates less to the violated spaces of learning and more to violated bodies within—the incursions of bodily and inner inviolability or violations of the rights to life, bodily integrity and security of the person, among others.  Thus viewed, the spaces of learning are less the object and more the holders of the object of protection: they are holders for embodied subjects of rights, principally learners, and their multidimensional right to education. There lies one source of international legal protection: international human rights law. Or viewed another way, there is a duo dimensional obligation to protect the embodied rights holder within the space from acts of violence and the space as a safe space of learning. And these continue within the converging contexts of emergencies, threats to international and peace and security and non/international armed conflicts. Indeed the latter triggers a second source: international humanitarian law. There is thus an international humanitarian obligation to respect and ensure respect for the principles of distinction between civilians and combatants and civilian objects and military objectives—or in other words to refrain from attacking learning spaces as civilian objects, and embodied persons in relation to the space, as civilians (persons not directly participating in hostilities). Indeed transgressions of these humanitarian rules may, infamously, be subject to domestic or international criminal investigations as war crimes.

The legal protection, then, may be viewed as doubling itself: the human rights obligation to protect the space from acts of violence and humanitarian obligation to refrain from attacking the space are complementary and mutually reinforcing. Considered in this way, there is legal and substantive convergence: the legal obligations to protect the space converge legally through the concurrent application of the two bodies of law, and substantively through the protection of ‘embodied vulnerability’ in relation to space within the context of non/international armed conflict. Of course probe more deeply and the convergence is partial. Though bound by embodiment, they are positioned on oppositional axes: in one body of law the embodied persons are subjects of rights; in the other they are more objects of protection—humanitarian rules limiting (the vulnerability creating effects of) violence in armed conflict. The framing of the respective obligations, therefore, diverge in form, content and scope. Held within the principle of distinction, for example, is international legal protection—and also its limits. Therein lies divergence in substantive protection. Learning spaces may lose their protection from attack; they may be transformed from a civilian object to a military objective including both a military contribution and advantage (whether by nature, location, purpose or use) and consequently be lawfully attacked.

Still this difference in scope may be viewed as a necessary accommodation to the extraordinary context of non/international armed conflict. Prima facie, if learning spaces are former learning spaces, there is minimal impact on learners and their teachers, among others, embodied selves. However viewed through a vulnerability lens* this potentiality may create, at least, four points of potential extraordinary embodied vulnerability to hurt and harm: (i) misinformed attacks on learning spaces of which remain civilian objects/retain their civilian character; (ii) proximate extraordinary embodied vulnerability in attack due to the likely close proximity of other aspects of civilian life (for example, learners’ homes); (iii) partial transformation of the space from a civilian object to a military objective by armed forces/groups; and (iv) broader multidimensional hurt and harm (or violations of the right to education and ipso facto violations of the rights in and through education) as a consequence of closure of learning spaces due to the potentiality of (i)-(iii).

Yet the narrative of the law, itself, is reflective of these four points of vulnerability in so far as it includes rules to limit the vulnerability creating effects of the principle of distinction. Of course in treaty law the determinacy differs between non and international armed conflict. However, three of the four points of vulnerability have determinate legal protection within customary law (see indicative overview), for example, the potentiality of misinformed attacks is limited by the obligation to do everything feasible to verify that targets are military objectives, among other rules. The fourth is more equivocal: there is no express obligation, for example, to respect the civilian character of learning spaces. Still it may be inferred from existing treaty and customary law: basic rules according protection to the civilian population and civilian objects, more specific rules informing their content and others. To these rules, there is a vital dignifying safeguard: the concurrent application of international human rights law generally—and the human right obligations to protect embodied rights holders in relation to the space specifically. As complementary international legal obligations, they continue at points of convergence and divergence in substantive protection, reinforcing the vulnerability limiting effects of applicable humanitarian rules (express or implied).

And, in doing so, they may have protective effects: law determining effects—or in others words, guide and inform the content of the humanitarian rules. Thus where the two bodies of law converge substantively, the applicable humanitarian rule may be determined with regard to (or interpreted in light of) the more specific human rights obligations, most particularly where it is less determinate or more equivocal than its human rights complement. And even where the protection diverges substantively (i.e. when the human rights obligation is determined by more specific humanitarian rules) the human rights obligation, as  a complementary international legal obligation, may be viewed as undergirding those rules, complementing and reinforcing their vulnerability limiting effects. Overall it creates a meta-juridical imperative to protect the inviolability of spaces of learning from attack and as spaces of learning. And this may have compliance conducing effects: domestic legal embodiment of the human rights obligations within the context of non/international armed conflict including knowledge and practice of law may (over time) effect practice of complementary humanitarian rules.

Considered in this way, rights-infused humanitarian law may be viewed as more reflective of our collective sense of justice. Yet the law is less converged and more converging. The protective effects are undercut by the undercurrent of oppositional legal argumentation vis-a-vis the concurrent application of the two bodies of law. And also by legal equivocation about its legal effects—specifically the content and scope of the multi-dimensional right to education. There remains a dual imperative to refute the former and contribute determinacy to the latter, most particularly at the point of divergence.

*On vulnerability and the law, see scholarship of Martha Albertson Fineman and Anna Grear, among others.

Migrant domestic and care workers in Ireland

We are delighted to welcome this post from Dr. Fulvia Staiano, Irish Research Council Post-doctoral Researcher based at the CCJHR, UCC.

 

In September 2015, the Migrant Rights Centre Ireland (MRCI) published a report entitled Migrant Workers in the Home Care Sector: Preparing for the Elder Boom in Ireland. The report describes the current state of the home care sector in Ireland and predicts an impending “elder boom” which will increase the demand for migrant domestic workers in the care and domestic work sector. Although Ireland has the fastest-ageing population in Europe, recent cuts to the Health Service Executive home care supports made this option expensive, fostering an informal care sector increasingly filled by migrant workers.

Despite this situation, Irish immigration law has become increasingly restrictive. From 2009, the issue of residence permits for the purpose of being employed as a domestic worker or carer in Ireland started to be increasingly limited. This process ultimately resulted in the inclusion of domestic workers among ineligible categories by the 2015 Employment Permits Regulations.

Predictably, the current impossibility to enter Ireland with an employment permit for the purpose of carrying out domestic or care work has not curbed the demand for workers in this sector. In this respect, the Report highlights how “an inevitable outcome of the absence of government labour migration policy in this area is a home care sector populated by informal and irregular workers – students and undocumented migrants”. At the same time, existing regulations on health services for the elderly (such as the Health Act 2007 or the 2012 National Standards for Safer Better Healthcare) do not apply to home care, which thus remains a widely unregulated sector in Ireland.

The retreat of law from the sector of domestic and care work is particularly worrisome for migrant workers. Demanding working hours, low pay, and difficult working conditions are often experienced by all workers in this sector regardless of nationality. Migrant care workers, however, run a particularly high risk of suffering from exploitation, abuse and discrimination. This was highlighted by both the MRCI and the Fundamental Rights Agency, which lists “activities of households as employers” as the fourth sector most at risk of exploitation in Europe. The same report places this sector at the top of the list for Ireland.

The Irish case is not at all unique in Europe. The exclusion of domestic work from general labour protections and the imposition of links with employers within labour migration law are recurring issues among EU Member States. For example in the UK section 57 of the National Minimum Wage Regulations 2015 allows employers to pay less than minimum wage to domestic workers who are “not a member of that family, but [are] treated as such.”  In Spain the Preamble of Real Decreto 1620/2011 states that the specific features of domestic work “justify the need for a different regulation than that of the common labour relationship”.

The legally-imposed dependence on employers in domestic immigration law is visible in both first-entry visa schemes and regularisation procedures. The UK Overseas Domestic Workers visa scheme, for instance, was reformed in 2012 so as to remove the possibility for visa holders of settling in the country by extending their stay and sponsoring family reunification. It also prevents migrants holding such visas to change employer. Despite the Government’s statement whereby such limitations offered “the biggest protection” against employers’ abuse, it appears that the prohibition on changing employer de facto presents domestic workers with the impossible choice of either enduring abusive and exploitative situations or jeopardising their residence status and risking expulsion. A similarly dangerous link between the regularity of domestic workers’ residence and continuous work for a specific employer was established in the past by an Italian regularisation procedure for domestic workers employed in the informal sector. In particular, law 102/2009 granted control to employers over the commencement and the continuation of the regularisation procedure, exposing domestic workers to blackmail by employers and discouraging them from reporting violence, abuse, sexual harassment or labour exploitation.

Against this background, it is worth noting that the European Court of Human Rights’ jurisprudence concerning the exploitation of domestic work has so far exclusively concerned extreme cases such as slavery and domestic servitude. Since its landmark judgment of Siliadin v. France, the ECtHR has identified positive state obligations under Article 4 of the ECHR which relate to the criminalisation of slavery, servitude and forced labour as well as their effective enforcement.

This commendable incursion of human rights law in the private realm of the household can be seen as a positive first step towards the protection of migrant domestic workers’ rights under the ECHR. However, this judgment and the following case law (C.N. v. the United Kingdom, C.N. and V. v. France and Kawogo v. the United Kingdom) reveal an exclusive focus on criminal law provisions, disregarding the broader issue of normative triggers to labour exploitation within other areas of domestic law. In Rantsev v. Cyprus and Russia, where the ECtHR found Cyprus in breach of Article 4 of the ECHR for putting in place a so-called “artiste visa” regime which, due to the strong control granted to employers over the employees’ migration status as well as living and working conditions, exposed foreign women to trafficking for the purpose of sexual exploitation.

The ECtHR case law also shows a clear focus on civil rights violations, without offering cues as to state obligations in relation to socio-economic rights. However, such a perspective is crucial for migrant domestic workers, because it relates to the more common forms of “everyday” exploitation experienced as a consequence of the described lack of legal protections in both labour and immigration law. Since the judgment in Airey v. Ireland the ECtHR has shown openness to examine claims related to socio-economic rights, including to a certain extent labour rights, but unfortunately to date it is not possible to identify meaningful examples of cross-fertilisation in respect to migrant workers’ claims in this field. This is particularly regretful in light of the low ratification rate among EU Member States of the 2011 ILO Domestic Workers Convention – which has yet to be acknowledged by the ECtHR.

In the light of the potential 5.5 million jobs in the Personal and Household Services Sectors predicted by the European Commission – a significant portion of which will be fulfilled by migrant women – the issue of the protection of domestic and care workers’ socio-economic rights is only destined to acquire relevance. In this respect, bridging the gap between the current focus of European human rights law on domestic servitude and migrant domestic workers’ need for legal protections in relation to “everyday” exploitation appears to be crucial.