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.

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.

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.

Climate Justice and Adaptation Strategies: public lecture, Thursday 26th June 2014, UCC

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

On Thursday 26th June 2014, the CCJHR will host a free public discussion on the topic of climate justice and adaptation strategies in Room 107, Western Gateway Building, UCC.

Chaired by Professor Siobhan Mullally, this event brings together a panel of international experts on climate change, human rights and migration to analyse the impact of climate change on the most vulernable in society.

Dr Cosmin Corendea from the UN University in Bonn will commence by presenting his recent research into migration decisions by individuals and communities resulting from the increasing variability of rainfall in countries such as Bangladesh, Peru, and Tanzania. Full details of this research can be found at: www.wheretherainfalls.org

Next, Diego Quiroz-Onate will describe the experience of the Scottish Human Rights Commission in promoting a climate justice approach with policy-makers in Scotland.

Bringing the discussion to the national and local level, Oisin Coghlan from Friends of the Earth (Ireland) will analyse the pending Climate Action and Low Carbon Bill 2014, and discuss the approach to climate change taken by the Irish authorities.

Finally, Dr Dug Cubie, Faculty of Law, UCC will describe the national adaptation framework for Ireland before leading a Q&A session with all contributors.

Date: Thursday 26th June 2014
Time: 4.00pm – 6.00pm
Venue: Room 107, Western Gateway Building, University College Cork

ALL WELCOME
There is no registration fee for this event.
Advance booking is required via www.eventbrite.ie (search for CCJHR).

UCC students debate nominees for the European Parliament Sakharov Prize for Freedom of Thought 2013

In conjunction with the European Parliament Office in Ireland, students of international human rights law in UCC debated and voted on the nominees for the 2013 Sakharov Prize for Freedom of Thought on Monday 30 September, thus drawing attention to the individual human rights issues to which the prize related. This public event took place in the Moot Court room in the Faculty of Law, in conjunction with the Centre for Criminal Justice and Human Rights (CCJHR). This was the second time in which such an event had taken place in UCC.

As part of the event, individual nominees from among those submitted to the Parliament by political groups or 40 MEPS were represented by the students, who each gave a short presentation, and argued the case for the award to be given to “their” nominee.

Following the presentations, the floor was opened for a lively debate between all participants, with a series of questions being posed to each team of students regarding the merits of specific nominees and on the criteria for their selection.

The audience was then asked to vote on which of the nominees to recommend for the 2013 Sakharov Prize.

The results of this vote by secret ballot were as follows:

• Reeyot Alemu and Eskinder Nega, (Ethiopia): 2 votes
• Ales Bialatski, Eduard Lobau and Mykola Statkevich on behalf of all political prisoners in Belarus (Belarus): 0 votes
• Mikhail Khodorkovsky (Russia): 4 votes
• Edward Snowden (USA): 4 votes
• The “Standing Man” protests in Turkey (Turkey): 1 vote
• The CNN Freedom Project: Ending Modern-Day Slavery (USA): 4 votes
• Malala Yousafzai (Pakistan): 5 votes

Malala Yousafzai was thus chosen as the 2013 winner of the vote by the UCC participants, with a joint second place for three other nominees: Mikhail Khodorkovsky, Edward Snowden and the CNN Freedom Project: Ending Modern-Day Slavery.

The students taking part in the debate were all following an LLM course on International Human Rights Law. The team of students successfully putting the case for the winning candidate were: Christine Burbach, John Couglan and Marshall Alenyo.

Following the debate, the students expressed their appreciation of the event and the opportunity to research both individual human rights defenders and the specific violations of human rights that each nominee represented. There was a high level of debate and discussion on the nominees selected by the students, and each group comprehensively answered challenging questions as to why their nominee was most appropriate to be the 2013 European Parliament Sakharov Prize Laureate.

The organiser of the event was Dr Dug Cubie, in conjunction with Francis Jacobs of the European Parliament Information Office in Ireland, and with the support of Professor Siobhán Mullally, Director of the Centre for Criminal Justice and Human Rights.

The students and Faculty also wish to convey their thanks to the European Parliament Office in Ireland, and to Francis Jacobs in particular, for facilitating this stimulating debate on seven worthy candidates for the Sakharov Prize for Freedom of Thought 2013.

The Food Assistance Convention 2012: a mouse that roars or a lion that squeaks?

In a previous post in March 2011 I discussed the background to the renegotiation of the Food Aid Convention 1999 (FAC 1999). In late April 2012, after a long-running and contentious series of negotiations by the major donor countries who were signatories to the FAC 1999, the text of the eagerly awaited Food Assistance Convention 2012 (FAC 2012) was published. The new FAC 2012 will remain open for signature until 31st December 2012, and will enter into force on 1st January 2013 if at least five of the signatories to the previous FAC 1999 have ratified the new convention.

First concluded in 1967, the Food Aid Convention 1999 was the only international legal instrument covering the provision of food aid to developing countries, and signatories were restricted to a small selection of donor countries: Argentina, Australia, Canada, the European Union, Japan, Norway, Switzerland and the United States. Implementation of the Convention was overseen by a Food Aid Committee, based in the International Grains Council in London. Yet serious concerns were raised regarding the operational and governance structures of the Food Aid Convention. Critics highlighted the out-dated model of physical food transfers from donor countries to recipient countries and a lack of utilisation of new methods of ensuring food security, such as cash transfers and increased use of micro-nutrient enriched foods and special nutritional products.

So in my previous post I highlighted the need to move from a Food Aid Convention to a Food Assistance Convention. As this has now come to pass, does this signify a major shift in donor country thinking on the provision of food and nutritional support to vulnerable communities? And does the rebranding of the Food Aid Convention 1999 into the Food Assistance Convention 2012 indicate that the needs-based approach supported by the EU and Canada has trumped the resource-based approach favoured by the USA and Japan?

In March 2011 I noted there was a need to move from discussion of what food stuffs to provide people facing food scarcity and famine, to what overall package of assistance is required to meet the needs of affected populations. I highlighted a series of issues that were up for discussion in the negotiation process, including whether additional donor members should be allowed to become signatories to the Convention, the form that food aid should take, and where a Food Aid/ Assistance Convention should fit within the overall international response to food scarcity and insecurity. So how have these, and other structural and contextual issues, been resolved in the new Convention?

Forms of food assistance: the change from “food aid” to “food assistance” represents an important shift in attitude from the original trade origins of the FAC in 1967, to acknowledging best practice in delivering food and nutritional assistance to vulnerable populations through cash transfers, local and regional procurement of food stuffs, and innovative approaches to reducing food and nutritional insecurity at the household and community level. The new Convention also includes explicit recognition that food assistance should be untied from donor countries own agricultural and trade objectives, and that in-kind food transfers from donors can distort the local markets and therefore have negative impacts on the overall levels of food security in a region. However, the subordination of FAC 2012 to obligations under the WTO still places a country’s trade considerations well before humanitarian responses.

Amounts of food assistance: the FAC 1999 contained detailed provisions on the amounts of food aid that were to be provided by each signatory, recorded in tons of grain which implied the physical transfer of food stuffs from donor countries to recipients. The FAC 2012 has a discretionary, non-binding system, whereby signatories announce an annual minimum commitment of food assistance expressed either as a minimum value or a minimum quantity of food stuffs. Donor countries simply have to provide details of their annual minimum commitments by 15th December each year, and it is now up to each donor country to determine its level of commitment each year. This represents a major weakening of the binding commitments contained in FAC 1999. Furthermore, as seen during the 2007-8 food price spike and the famine in the Horn of Africa during 2011 and 2012, the availability of food aid is often dependent on global food prices – and the total amount of donor countries’ commitments can fall when global prices increase. So allowing countries to express their commitment in monetary value passes the risk of price fluctuations onto the recipient countries, when previously donor countries bore this risk. Nevertheless, as noted by a former Director of the World Food Programme for the Asia and Pacific:

 “The FAC always seemed to me an accounting device more than a guarantee for an additional volume of resources in times of crisis. All donors, but certainly the major ones always provided food when they had it and did not provide food when they did not have it.”

Signatories: While initial signatories to FAC 2012 remains limited to the original signatories of FAC 1999 (plus those States that have joined the EU since 1999), Article 13 allows for any other State to accede to the Convention once it has entered into force. This is to be welcomed if it leads to an expansion of the base of key middle income donor countries such as Brazil, China India, Russia or South Africa, who had not been included in the formal renegotiation process. Not only would this help widen the base of donor countries, it can assist in committing a broader range of countries to the principles of effectiveness and accountability promoted in the new text.

Governance and inter-agency co-ordination: the new text explicitly requires donor countries to regularly monitor, evaluate and communicate the outcomes of their food assistance programmes. This reflects the increasing emphasis placed by donors themselves on transparency and accountability in development and humanitarian programming, as set out in the OECD’s Paris Declaration on Aid Effectiveness 2005 and Accra Agenda for Action 2008. Such openness is to be welcomed, as are the indications that the Food Assistance Committee will act in a more inclusive and transparent manner, for example by including recipient countries and civil society organisations in their discussions and meetings. It would be hard for donor countries to press recipient countries to act in an open, transparent and accountable manner, and to promote these principles as a basis for aid effectiveness, without acting in the same manner themselves. However, it remains to be seen what level of engagement and input is actively sought by the new Food Assistance Committee from middle income donors, recipient countries and non-governmental organisations. Therefore organisations within donor countries will need to monitor the stances taken by the national authorities, for example Irish Aid and the Department of Agriculture here in Ireland, to promote compliance with the new commitments. Furthermore, as noted by the International Federation of Red Cross and Red Crescent Societies, it is not clear how the FAC 2012 will interact with existing food security structures, for example the UN High-Level Task Force on the Global Food Security Crisis, the Committee on World Food Security and the global Food Security Cluster.

Considering that the FAC 2012 is a legal framework for the provision of humanitarian food assistance to populations facing major food insecurity, it is notable how many aspects of the FAC 1999 have been improved. Overall, the FAC 2012 has created a more supportive structure for promoting best practice in food and nutritional interventions by donor countries. While the Overseas Development Institute has questioned whether the new convention will lead to any changes in the attitude of large donors, such as the USA, this has been countered by Professor Jennifer Clapp and C. Stuart Clark, who argue that the FAC 2012 plays a fundamental role for middle sized donor countries, such as Canada, Switzerland and Norway. Perhaps of most interest is the clear acknowledgement of the right to food set out in the preamble to the new Convention. By bringing the operation and governance of the Food Assistance Convention 2012 into the public sphere and by clearly recognising the right to food, donor countries have signalled that they wish to take their humanitarian commitments seriously. It is now incumbent upon the rest of us to build on the re-commitment of donor countries to ensuring sufficient assistance is provided to those facing severe food and nutritional insecurity. This requires the signature and accession of the FAC 2012 by as wide a range of countries as possible, and for us to hold donor countries to their word.

Human Dignity as a Focus for Criminal Justice and Human Rights: Report on 6th Annual Postgraduate Conference, April 2012

The Centre for Criminal Justice and Human Rights’ 6th Annual Postgraduate Conference was held on 26th April 2012 in Áras na Laoi, UCC on the theme of “Transformation and Reform: Structures and Mechanisms for Rights-Based Protections”. The aim was to critically examine the implications for individuals and rights-based protections that arise from recent proposals for major reforms at the national, European and international level. This was reflected in the variety and high quality of papers presented on a wide range of topics including Scottish and Irish Criminal Processes, Gender and Sexual Offences, Racism and Hate Speech, Irish Legal Processes, International Criminal Law, and International Humanitarian Law.

Professor Christopher McCrudden of Queen’s University Belfast delivered the keynote address examining An Integrated Approach to International Human Rights through the Concept of Human Dignity. Professor McCrudden traced the origins of the concept of human dignity, and noted the implications for both methodological approaches to researching and substantive enforcement of human rights that arise from a renewed focus on human dignity within international human rights law.

 

A video of the event can be seen here

The conference attracted a total of 66 attendees with speakers from across the island of Ireland and the UK, including from UCC, TCD, UCD, the Irish Council for Civil Liberties, University of Ulster, King’s College London, University of Strathclyde, NUIG, the Law Reform Commission, Griffith College Dublin, University of Nottingham, University of Aberdeen, University of Bedfordshire, Queen’s University Belfast, Queen Mary, University of London as well as legal and non-governmental practitioners.

A number of innovations were made to the conference programme this year including the introduction of a competition for best paper. The competition was won by Sarah Singer of Queen Mary, University of London. Sarah presented her paper titled “Exclusion from Refugee Status: Asylum Seekers & Terrorism in the UK” at a plenary session of the conference. The paper was very well received and provided a valuable opportunity to highlight the excellent standard of postgraduate research which the CCJHR seeks to promote.

The conference concluded with a panel discussion on the topic of Transformation and Reform. This was also a new addition to the CCJHR conference programme and allowed for reflection and discussion on the disparate issues raised in the plenary sessions and parallel workshops during the day.

We would like to take this opportunity to thank everyone who attended and presented at the conference, in particular Professor McCrudden and Sarah Singer, and for the excellent support from UCC Faculty staff on the day. Pictures from the conference and a podcast of the keynote speech by Professor McCrudden will be available shortly on the CCJHR website.

Climate Justice and the Durban Platform for Enhanced Action

Mary Robinson, President of the Mary Robinson Foundation – Climate Justice (MRFCJ), delivered a public lecture at UCC’s Centre for Global Development titled ‘Climate Justice Post Durban’ on 18 January 2012. Mrs. Robinson explored the outcomes of the most recent UN climate change conference, COP17, which took place in Durban, South Africa, in December 2011, from a climate justice perspective and the extent to which it addressed the needs of those most vulnerable to the impacts of climate change.

COP17, she said was concerned with “what I believe to be the most critical issue we all face – the future of our planet. In these times of economic crisis, amid worries about our own and the European and international economies, it is not surprising that attention focuses on our immediate problems. But, make no mistake about it, we ignore the threat posed by climate change at our peril.”

Mrs Robinson explained the three priorities for the MRFCJ at COP17; the legal form of a future climate agreement; food security and agriculture; and women’s leadership and the gender dimensions of climate change.

Speaking about the outcome of COP17, known as the Durban Platform for Enhanced Action, Mrs Robinson said: “The door is open for a new international and inclusive legally binding agreement to solve the climate change problem. We have a start date, January 2012, a deadline December 2015, and a lot of work to do, barriers to breakdown and agreement to reach before then.

“Central to this will be overcoming the divide between developed and developing countries in the climate negotiations. The alliance formed between the EU, the Least Developed Countries and the Small Island Developing States at COP17 started to challenge this divide. It is a move in the right direction that will need to be nurtured and strengthened in the coming years to facilitate an ambitious new agreement.”

She continued: “We made progress on issues of importance to climate justice including gender equality and food security. Both of these reflect the Principles of Climate Justice which underpin the work of MRFCJ and help to communicate the human impacts of climate change and demonstrate the need for solutions which are informed by human rights.”

“This work is far from complete and we will continue to work on these themes inside and outside the Climate Change Convention as core elements of our work on climate justice.”

The lecture was part of the UCC Centre for Global Development’s Global Challenges Lecture Series.

See also:

Full text of lecture

Climate issues crucial, says Robinson – Irish Times, 19th January 2012