Case Note: The Queen (on the application of Citizens UK) and Secretary of State for the Home Department [2018] EWCA Civ 1812

This guest blog by Jessica Brennan (UCC School of Law PhD researcher) analyses the recent UK decision on the treatment of children in the so-called ‘Jungle’ camp in Calais.

Court Misled Over Treatment of Children in Calais

This matter came before the Court by way of an appeal against the order of Soole J. The claim related to the lawfulness of what is known as the ‘expedited process’ which was established by the Secretary of State for the Home Department, the Respondent, together with the French authorities in October 2016 in response to the impending demolition of the makeshift tented encampment in Calais which was commonly known as ‘the Jungle’. Using the expedited process, the Respondent sought to assess the eligibility of unaccompanied asylum-seeking children to be transferred to the United Kingdom.

The legal argument revolved around whether the expedited process was unfair and therefore unlawful on any or all of the grounds advanced by Citizens UK; under EU law, under the common law or under the Human Rights Act of 1998. The Court of Appeal had the advantage of seeing further evidence which was not before the High Court or the Upper Tribunal of the Immigration and Asylum Chamber. Citizens UK argued at appeal stage that even if the position were otherwise at first instance, the additional evidence demonstrates that there was fundamental unfairness in the expedited process. Complaint was also made that the Secretary of State breached their duty of candour and co-operation with the Courts.

Factual Background

The demolition of the Calais camp was announced on 7th October 2016. This led to discussions between the Secretary of State and the French authorities, with a view to expanding and modifying a pilot process for an ‘accelerated’ Dublin III procedure. The expedited process, which became known as ‘Operation Purnia’, ultimately consisted of two phases. The first phase was an interview, decision-making and transfer phase, which took place at the camp itself in the last two weeks of October 2016. Approximately 200 children were transferred to the UK in the first phase. On 28 October 2016 the French authorities asked the Secretary of State to cease interviewing at the camp. In early November children began to be dispersed to CAOMIs (Centres d’accueil et d’orientation pour mineurs isloes) across France. That dispersal gave rise to Phase 2 of the expedited process. The second phase of the process related to 1,872 unaccompanied children who had not been fully processed in Phase 1. In the second phase, 90 UK officials interviewed the children in 20-minute slots over a period of three weeks. Interviews with family members in the UK were conducted by telephone by UK based officials. Decisions were made by comparing the paper records of those two interviews.

Following both phases a total of approximately 550 children were identified as being eligible for transfer under Dublin III and transferred to the UK between October and December 2016. However, over 500 children claiming to have family members in the UK were not transferred at that time. Refusal decisions were communicated not directly to the children but to the French authorities by means of a spreadsheet with only a one-word explanation related to the refusal. Most of the children were then told of the decision by the French authorities. Neither family members in the UK nor the children were contacted by the Secretary of State. They were never told of the reasons for refusal nor given any opportunity to correct errors whether actual or perceived in the decisions. Although there was an opportunity to ask for a reconsideration, in the vast majority of cases there was no new information and on reconsideration, the initial decision was merely confirmed.

Issues

The following issues were considered on appeal:

First, under EU law:

  1. Was Soole J correct to conclude that applications for international protection within the meaning of Article 2(b) of Dublin III had not been made by unaccompanied minor in the expedited process?
  2. Was Soole J correct to conclude that the process fell outside Dublin III and was not governed by its criteria and procedural protections?
  3. Was it lawful for the Secretary of State to devise such a scheme under EU lthe ECHR?

Secondly, was the decision-making process fair as a matter of common law?

Thirdly, was it fair in accordance with the procedural requirements of Article 8 of the ECHR?

Decision

EU Issues

Lord Justice Singh gave the judgment in the matter with Lady Justice Asplin and Lord Justice Hickinbottom concurring. The Judge began by firstly considering the place where a person makes an international protection application and found that international protection is not the same thing as an intention to make such an application after a person has been transferred to another Member State. Furthermore, an application must usually be made in accordance with the procedures laid down in Dublin III. In the present context, that would mean that an unaccompanied minor would have to make an application in France. If it then transpired that the mandatory criteria for a transfer to the UK set out in Article 8 were satisfied, that process would be followed. However, that does not lead to the conclusion that the expedited process adopted bilaterally by France and the UK in the present context amounted to a procedure under Dublin III. The Court found that as a matter of law, the expedited process was not a process under Dublin III.

The next issue considered was whether it was legally permissible for France and the UK to adopt the expedited process. Lord Justice Singh rejected that argument. The Judge found nothing to prevent a Member State from adopting a procedure in its own domestic law which requires an application for asylum to be made on its own territory and not from outside that state. Similarly, there is nothing to prevent two Member States of the EU from bilaterally agreeing that they will adopt a process which sits alongside that in Dublin III. It would be otherwise if they agreed to derogate from the procedural safeguards in Dublin III. However, that is not what the expedited process was. At all material times it was open to an unaccompanied minor in France to make an application for international protection, which would then have to be dealt with in accordance with the requirements of Dublin III. Even the fact that they were not selected for expedited transfer in anticipation of a formal consideration under Dublin III did not preclude them at any material time from making such an application in the future. Lord Justice Singh reached the conclusion that Soole J was correct in his interpretation of the Dublin III Regulation and accordingly rejected the appeal by Citizens UK insofar as it was based upon EU law.

Common law fairness

The Court considered whether the particular circumstances in which the Secretary of State was operating, sufficiently modified the duty to act fairly so as to relieve her from the usual requirements of procedural fairness. Lord Justice Singh agreed with Soole J that the most important concern was the “sparseness” of the reasons which were given for an adverse decision. The argument that it was possible for a person to proceed under Dublin III at all material times which attracted the full panoply of procedural safeguards was flawed for two reasons according to the Judge.

Firstly, it assumes that fairness is not required at an earlier decision-making stage because fairness is required at a later decision-making stage. Secondly, the pure Dublin III process could not in practice be insulated from what had gone before. Lord Justice Singh recognised that the manner in which the expedited procedure operated in practice had implications for the child applicant. For example, some children gave up and never made a formal application under Dublin III because of an adverse decision in the expedited process. The Judge suggested that if brief reasons were conveyed to the children affected at the relevant time, it might have been possible for someone to make a meaningful response, for example correcting some inaccuracy in the information. Conversely, if the reasoning was wholly accurate, it would have stopped them making a futile application for reconsideration or still less a futile application for formal consideration under the full Dublin III process. Lord Justice Singh concluded, the process which was adopted by the Secretary of State in the present context failed to comply with the requirements of procedural fairness as a matter of common law.

Article 8 of the echr

Lord Justice Singh found it unnecessary to lengthen the judgment further by addressing the procedural requirements that might arise under Article 8 of the ECHR but suggested that they could not give greater rights than the common law would in such a context.

the duty of candour and cooperation

The Judge ruled that the duty of candour and co-operation with the court is a “self-policing duty”. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court. The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. The Judge warned that witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.

Lord Justice Singh reviewed the additional evidence available only at appeal stage and in particular the email correspondence between officials working on behalf of the Secretary of State. It came to the attention of the Court through this additional documentation that the French authorities requested more detailed reasons of refusal to be given to the minors. Such a request was refused by the British authorities on the ground that this would give rise to the risk of legal challenge. Further, it was found that the filter process had not been adequately explained in evidence, particularly the possibility of reconsideration. Lord Justice Singh concluded there was a serious breach of the duty of candour and co-operation in the present proceedings. The effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court.

The Judge added that it was purely by chance that the Court came to learn of such important matters, including what was said in contemporaneous emails in December 2016 and January 2017. The most serious omission was the failure by those presenting evidence on behalf of the Secretary of State to explain the true reason why they refused to provide an adequate explanation to the unaccompanied minors as to why their claim had been refused. The Court found that such a decision was not based on urgency or because the French authorities demanded a greater explanation but because the British authorities did not wish to do so because of a perceived risk of legal challenge.

The Judge found that:

  1. there was a serious breach of the duty of candour and co-operation by the Secretary of State; and
  2. the evidence before the Court supported the submission made by Citizens UK that the process adopted was unfair and unlawful as a matter of common law.

Conclusion

A declaration was granted that there was a breach of the duty of fairness under the common law. As this was a generic challenge by a non-governmental organisation and given that the expedited process is now long in the past, no other remedy was deemed necessary or appropriate. This case highlights the responsibility placed on persons such as the Secretary of State to carry out their duties in a fair and lawful manner at all times and further reiterates the fact that children are entitled to the same fair procedures and processes as adults.

Call for Papers: Journal of International Humanitarian Legal Studies

Call for Papers

The Journal of International Humanitarian Legal Studies is a biannual peer-reviewed journal published by Brill | Nijhoff.

JIHLS logo

JIHLS logo

The objective of the Journal is to explore the application of international law to humanitarian crises and, more specifically, to examine the role that this legal framework plays in protecting human security during times of emergency.

The scope of the Journal is broad and it publishes papers on international humanitarian legal issues including but not limited to: the law of international and non-international armed conflict; the protection of human rights during times of armed conflict; international refugee law; military law; disaster law; the law of post-conflict reconstruction; and international criminal law.

The Editors-in-Chief are Russell Buchan (University of Sheffield, UK), Emily Crawford (University of Sydney, Australia) and Rain Liivoja (University of Queensland, Australia).

The Journal is now accepting contributions for Volume 10(1), which will be published in late 2019. The Journal publishes full length articles (of no more than 10,000 words), shorter commentaries and case comments (4,000 words), and book reviews (1,500 words). The Journal welcomes contributions from academics, government and non-governmental organisation officials, military personnel, and practitioners working in the humanitarian field more generally.

Contributions must adhere to OSCOLA referencing style. Guidance on preparing and submitting manuscripts is available at www.jihls.net/authors. For contributions to be considered for publication in Volume 10(1) they must be submitted no later than the 15 January 2019. Any queries may be addressed to the Editors-in-Chief at editors@jihls.net.

For previous issues of the Journal, see brill.com/ihls.

Call for Abstracts: Yearbook of International Disaster Law

The Yearbook of International Disaster Law (YIDL) aims to foster the interest of academics and practitioners on legal and institutional issues relevant to all forms of natural, technological and human-made disasters, including rapid and slow onset events, but excluding events such as armed conflicts or political/financial crises per se. The YIDL is a double-blind peer review journal published by Brill/Nijhoff.

For its inaugural issue (vol. 1, 2018) the YIDL welcome submissions of abstracts for papers addressing topics pertaining to any issue of international disaster law. Abstracts shall be sent by 15th November 2018 at the e-mail address: info@yearbookidl.org The YIDL also welcomes suggestions for book reviews.

Abstracts should be between 700-1,000 words, including relevant citations. Authors are also kindly requested to attach a short curriculum vitae to their e-mail. Further details available in the attached call.

‘Beyond McMahon – the future of asylum reception in Ireland’

We are delighted to welcome this guest post by Claire Dorrity, lecturer in social policy in the School of Applied Social Studies, UCC.

Nasc logoOn Wednesday 25th April 2018 Nasc and the Centre for Criminal Justice and Human Rights (CCJHR) co-hosted a conference in UCC on the future of asylum reception in Ireland. The conference participants included members of the Working Group (Working Group to Report to Government on the Protection Process, including Direct Provision and Supports to Asylum Seekers), academics, representatives from state institutions, international speakers from both the Portuguese and the Scottish Refugee Councils, representatives from the Irish Human Rights and Equality Commission, Migrant NGO representatives, and members of the asylum seeking community in Ireland. The main foci of the conference related specifically to the system of direct provision, models of integration and rights that are afforded to asylum seekers.

Broadly speaking, asylum policy incorporates three key areas: – 1) the rights and entitlements of those entering the state to seek asylum, 2) the reception conditions afforded to asylum seekers by the state, and 3) how asylum issues are represented both in policy and practice. The political representation of asylum issues will also be determined by the modes of participation, engagement and inclusion available to asylum seekers. In Ireland, rights available to asylum seekers to influence political outcomes and decision-making processes remain severely restricted. This is mostly attributed to the nature of immigration policy, more specifically the asylum process and the restricted status asylum seekers occupy within the Irish state (Titley, 2012; Lentin, 2004).

The system of direct provision (DP) has been in operation in Ireland since 1999 and was made the official mechanism for the reception of asylum seekers in 2000. Prior to the introduction of DP, asylum seekers had the right to access the labour market and receive social welfare payments, equivalent to that of an Irish citizen. The system of DP, however, removed that right and since then asylum seekers have been the subject of an increasing array of restrictions on many of their basic human rights. The system of DP placed asylum seekers in designated accommodation centres dispersed around the country and has continued to operate for the past 18 years.

The exclusionary aspects of DP are well documented (Kinlan, 2013; Arnold, 2012; Lentin, 2012; Titley, 2012; Akidwa, 2010; FLAC 2010; Considine and Dukelow, 2009). They are evident in the location of DP centres, generally located away from local communities, limiting the ability of asylum seekers to integrate into communities. Also evident in this system is the denial of the right to work and third level education, economic marginalisation, conflated with limited rights and freedoms. A weekly allowance of €19.10 per week adults and €9.60 per child was permitted from 2000 until 2016. This rate did not change in over 16 years despite incremental increases in other social welfare allowances. In January 2016 the child allowance increased to €15.60 and the adult weekly allowance now stands at €21.10 (Department of Social Protection, 2016). In 2017 the rate increased to €21.60 for both adults and children (Department of Employment Affairs and Social Protection).

The administering of the direct provision system is carried out by the Reception and Integration Agency (RIA), as part of the Department of Justice and Equality, who are contracted to provide full board and accommodation for asylum seeker residents. There is currently no requirement for staff employed in DP centres to undertake training in the area of child protection or to have had any training of working with asylum seekers, vulnerable people or children (Irish Refugee Council, 2013). However, RIA has now brought their child protection policies in line with new legislation and have a dedicated seconded Tusla social worker on staff. There is also now a requirement for training in child protection when working with vulnerable children and adults (RIA, 2018).

The introduction of the policy of DP has been widely criticized, by both academics and migrant NGOs alike, for its failure to consult with asylum seekers and migrant NGOs prior to its implementation and also for the exclusionary and restrictive nature of the system and its impact on the daily lives of asylum seekers (O’Connor, 2003; Healy, 2007; Lentin 2012). Furthermore, while the European Union introduced a Council Directive 2003/9/EC of 27 January 2003 (revised in 2013) putting in place minimum standards for the reception of asylum seekers, the Irish state opted out of this directive. This allowed Ireland to continue administering the system of DP at a policy level. The system allows for little recourse for those living within DP accommodation (Irish Refugee Council, 2011). In 2012 the Irish Refugee Council released a document addressing child poverty in the DP system entitled ‘State Sanctioned Child Poverty and Exclusion’. The report highlighted both child poverty and child protection issues. More specifically it stated:

The Special Rapporteur on Child Protection, Geoffrey Shannon, has raised concerns about the detrimental effect of Direct Provision accommodation on children and on parents’ ability to provide adequate care. He describes the system as amounting to institutionalised poverty (2012:21)

Also highlighted was ‘unsuitable living conditions, malnourishment, poverty, exclusion and lack of play space’ (2012: 21). The Irish Human Rights and Equality Commission have also repeatedly expressed concern about the human rights of residents in DP (Irish Human Rights and Equality Commission, 2014). Both NGOs and academic commentators have criticised the system and highlighted the challenges to integration that DP presents for asylum seekers (Irish Refugee Council, 2012; FLAC, 2010; Nasc 2007; Fanning 2002).

Reflections on the Conference

Political representation is highlighted as one of the most crucial avenues to democratic processes of representation (Pitkin, 1967). It both establishes the legitimacy of democratic institutions while also creating institutional incentives for state bodies to respond (Dovi, 2017). Political representation has been acknowledged as an important means of providing voice to oppressed groups through assigning meaning to the manner in which groups are represented and importing significant issues and their relevance into the body politic (Young, 2000). The literature on inclusive political representation indicates that the exercise of voice and demanding more responsiveness and accountability from state institutions is more likely to occur when other participatory mechanisms are present (Rocha Menocal, 2014). In this context, developing more inclusive representative structures and fostering strong mechanisms of inclusion is highly significant.

The conference ‘Beyond McMahon – the future of asylum reception in Ireland’ took a step towards facilitating inclusive dialogue on key asylum issues. It provided an interactive space involving the participation of state and non-state actors, along with a range of participants working directly or indirectly with asylum seekers. Most refreshing was the inclusion of the voices of asylum seekers. Lucky Khambule, a spokesperson from MASI (Movement of Asylum Seekers in Ireland) gave a poignant contribution from the perspective of the asylum seeker, giving the audience a real insight into the lived experience of those accommodated in the DP system. This provided both the speakers and the attendees with a clear sense of how oppression and injustice operates within the DP system.

The international perspectives from both Teresa Mendes, Director of the Portuguese Refugee Council and Sabir Zazai, Director of the Scottish Refugee Council provided an invigorating alternative to systems such as DP, placing a focus on the importance of making explicit the vital supports required for asylum seekers when arriving in host countries. Both of these approaches provided avenues for new thinking in relation to how Ireland might respond to the reception of asylum seekers in future policy formation. Both contributions highlighted the important role refugees play in enriching and providing positive contributions to host societies. The right to work was highlighted as playing a crucial role in supporting refugees to integrate into community life. Promoting autonomy within the asylum seeking community was also viewed as a key factor in ensuring successful and inclusive participation and integration. These explicitly inclusive and supportive systems of reception illustrate how the Scottish and Portuguese models emphasise humanitarian principles and place human security at the centre of their approach. It also highlights how such approaches can assist in resolving some of the tensions and challenges Ireland currently faces.

Overall the conference discussions illuminated the need for a more coordinated approach to asylum policy that does not involve punitive measures or prolonged periods of time in DP. The contributions and discussions made clear that any coherent policy must prioritise rights and dignity. This will require a willingness on the part of all parties to accept that the current system is not fit for purpose and failing asylum seekers socially, financially and politically. In bringing together all parties, the conference set the foundations for building better working relationships but highlighted that such relationships must place asylum seekers at the forefront of this process. This will require new and different approaches, one that treats asylum seekers in a more humane and dignified way and as people who can make a valuable contribution to Irish society if given the opportunity to do so.

Further References:

Dominic Ongwen on trial at the ICC

This guest blog is written by LLM graduate, Claire Raissian.

The trial of Ugandan former child soldier, Dominic Ongwen commenced before the International Criminal Court (ICC) on December 6, 2016. In light of significant evidence of state-sponsored violence and governmental negligence which contributed to the destruction of communities in Acholi-land, the Ongwen case has sparked international debate on various issues, including the politics involved in the ICC’s intervention in Uganda, and the one-sided nature of this particular fight against impunity.

The Office of the Prosecutor successfully expanded the charges against Ongwen in early 2016 and he now stands accused of seventy counts of war crimes and crimes against humanity before the ICC. The charges detail grave and extraordinary levels of violence, which he allegedly led as an adult and directed against his own people including inter alia, a series of attacks on Internally Displaced Persons (IDP) camps in Lukodi, Odek, Pajule and Abok between 2003 and 2004. He is the first known person to stand trial in an international court or tribunal, accused of crimes of which he is also a victim, specifically the war crimes of cruel treatment and conscription and use of a child soldier, and the crime of humanity of enslavement. The accused has pleaded not guilty to all of the charges and claims that he is a victim of the LRA, and does not personify the group.

The Ongwen case has not only prompted a questioning as to the effectiveness or otherwise of measures of international protection available to child soldiers, but has also led international legal actors to revisit the debate regarding the propriety of a prosecutorial response to perpetrators of mass atrocity in the context of transitional justice.  Revisiting this now requires a reframing of the debate in the context of child soldiers, specifically young abductees who were forcibly recruited into an armed group and used to participate in hostilities. Although Ongwen may be a unique defendant, he represents thousands of children in this respect. 

The significance of the international criminal law response to Ongwen’s case is further underlined in that it will contribute to what is known as a “paradigm of transitional jurisprudence”  and additionally set a sort of precedent in international law,  the implications of which may resonate in post-conflict  northern Uganda and beyond for many generations to come. The peace that exists in northern Uganda may be termed a ‘negative peace’ where the root causes of the conflict have not yet been addressed and no formal agreement has been signed to establish it. In fact, Joseph Kony remains at large today and the LRA continues to abduct children.

Whether the prosecution of Dominic Ongwen could factor in the establishment of positive peace in the region is unknown, however it is improbable that the law can play a constructivist role in rebuilding this particular rural society, where the legal response takes the form of an international criminal trial of a former child soldier, who many in the community consider to be a victim due to the fact of his abduction at a young age.

According to the facts of the case, Dominic Ongwen was approximately nine years old when he was abducted by the Lord’s Resistance Army (LRA), as he walked to school.  After a period of induction during which time he was tortured, enslaved and trained to fight, he was initiated into the group and afterwards rose through the ranks, eventually becoming a commander of the Sinia Brigade. His rapid ascension was due to the fact that he was an efficient killer, a loyal fighter, and because he survived when his superiors did not.  These promotions guaranteed him material advantages and personal security, while simultaneously diminishing the likelihood that he would ever return home. The LRA employed a mixture of cruelty and brainwashing to break down their abductees, at once subjecting them to slave labour, beatings and threats, while instilling their political ideology and convincing them that they were fighting, with their allies, to overthrow the Government and to improve the lives of the Acholi people.

Loyalty, Michael Wessells asserts, was used by the LRA as an incentive for rewards that would be received once the fighting was over. Kony was exceptionally skilled in his employment of tactics when breaking down the children, also drawing on the strong belief in the world of spirits that is inherent to the Acholi culture. For child abductees often, “the sense of survival does not necessarily dissipate and that dependence on the organisation never abates even when a commander moves up the ranks.”

Much later on, in 2007 Kony would order the murder of Vincent Otti, his second in command and Ongwen’s former teacher, or lapwony. Ongwen would not defect until 2015, when he surrendered to US forces in the Central African Republic (CAR) and was then taken into the custody of the ICC in The Hague.

Fatou Bensouda, in her opening statement as Chief Prosecutor, stated that the purpose of the Ongwen trial is to establish the ‘whole truth’ in relation to the crimes of which he stands accused. The binary nature of international criminal law cannot, however accommodate the nuances intrinsic to establishing the whole truth in this case. Ongwen is regarded by many to occupy a grey area in law by virtue of the fact of his abduction and initiation at a young age however, the need for the prosecution to establish his guilt as a perpetrator must mean that his more ambiguous status as a victim-perpetrator is thereby voided.

Erin Baines, who co-founded the Justice and Reconciliation Project (JRP) said that; “In Ongwen’s case, the morally superior concept of ‘child soldier as a victim’ collapses. But so too does the personification of evil into the image of a perpetrator.”

In a JRP Report it was noted that a failure by international legal interventions to formally address the truth and reality of the complex political victim in a post-conflict situation, and the consequent denial of their access to justice, may fuel the social exclusion and construction of “the other” which is the initial step in the creation of a dehumanised subgroup, and may lead back to violence. Neither the ICC, nor the government amnesty in Uganda make provision for such individuals, treating victims and perpetrators as “homogenous groups” and distinct from one another.

With this in mind, Baines expanded on Erica Bouris’ theory of victim agency when she wrote about Ongwen a year later, introducing the concept of a “complex political perpetrator” as someone who is forced to act within the parameters of an extremely violent rebel group, where they have grown up in such extreme devastation that their everyday life and surroundings are in a state of “chronic crisis.”

The exoneration of Dominic Ongwen is not however countenanced by the JRP, nor anywhere here. However, I concur with the observation that was made by them upon his indictment by the ICC, that in issuing the warrant for his arrest as one of the architects responsible for orchestrating the LRAs operations, the ICC cannot simply gloss over the fact that he was “[…] once a child who was unprotected, abducted, indoctrinated, brutalized and forced to commit heinous acts.” The temporal jurisdiction, limited as it is to crimes committed after 2002 probably means that, “[T]he culpability of Ongwen in the wider context of mass, collective victimisation of children in northern Uganda was likely not factored into the decision to issue warrants for his arrest.”

It is now for the Trial Chamber IX to decide whether Ongwen is guilty of his alleged crimes and whether he acted by his own volition as an adult, or whether he was subjected to such deeply entrenched duress, that as his defence team asserts, his “so-called rank was demonstrative of one thing: that he was surviving better than others while under duress.”

 

 

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.

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)

 

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.