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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

 

 

Ireland, the ICCPR and the UN Human Rights Committee 2014

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

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

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

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

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

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

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

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

 

 

ISIS in Iraq and International Law’s Rebel Forces Issues

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

ISIS in Iraq and International Law’s Rebel Forces Issues

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

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

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

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

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

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

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

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

 

 

 

 

 

Harold Koh: Annual CCJHR Lecture 2014

This year’s Annual Distinguished Lecture at the CCJHR was delivered by Harold Koh, Stirling Professor of International Law at Yale Law School, and former Legal Adviser to the U.S. State Department. We had a great audience of legal practitioners, Govt officials, students and academics from a wide range of disciplines.

Below is a guest blog post from Seán Butler, IRC PhD candidate at the Centre for Criminal Justice and Human Rights, Faculty of Law, UCC, discussing the lecture and topics covered, including Koh’s ‘smart international law’ concept.

Harold Koh Lecture: 20th Century Law, 21st Century Problems

The subject of Professor Koh’s lecture was ‘20th Century Law, 21st Century Problems’ and contrasted the differing approaches of the Bush and Obama administrations towards tackling contemporary problems in international law and international politics, and the latter’s focus on the use of international law as a tool of smart power in the international system.

The approach of the Bush administration to new international challenges was to assume that where no law existed, there was no law to apply. This approach led to such legal ‘black holes’ as extraordinary rendition, Guantanamo Bay and the introduction of drone warfare. This necessitated an overreliance on hard power, such as in Iraq, and ultimately to what Professor Koh referred to as ‘imperial overreach’. Koh argued that the Obama administration sought instead to capture the spirit of the law and ‘translate’ pre-existing law into a workable structure for implementation in new and unique circumstances. This was characterised by a three-step process: ‘engagement’, ‘translation’ and ‘leverage’. The new approach sought to blend the law with other policy tools available as well as US values, in order to generate policy that was both effective and in compliance with the existing legal structure.

Professor Koh argued that the new approach made best use of the US’ true source of strength, namely soft power. The building of alliances and consensus among like-minded states generated legitimacy for US approaches, making policy easier to implement as well as supporting the growth of international law. This approach was exemplified by the new US strategies in Afghanistan and Iraq, in which the perpetual ‘War on Terror’, with its associated legal ambiguities, was replaced with a stricter definition of the enemy in these conflicts and a more transparent approach. Koh argued that this new rubric allows a stronger defence of the use of drones as a tool of war in compliance with the international humanitarian law principle of distinction. Koh further contended that drones were not a strategy in themselves, but rather tools to achieve certain goals.

Koh addressed a number of challenges facing actors in the international system for which the approach of engage-translate-leverage could be utilised. These included whether the smoking epidemic in the developing world could be addressed through a human rights approach, what rights clones were entitled to, especially in relation to their ‘original’ humans, and the impact of the ‘right to forget’ on the internet. Koh argued that a broader understanding of rights could be required to address these challenges.

Finally, Koh tackled the issue of humanitarian intervention. He firstly pointed to the NATO campaign in Libya and the Obama administration’s ‘Leading from Behind’ policy as an example of the new ‘smart power’ approach. As regards Syria, Koh argued that the US was doing what it could within the boundaries of international law, but the primary issue was that the tools available to the US and others were insufficient to solve the myriad problems stemming from that conflict. Without the consent of the Syrian authorities or a UN Security Council Resolution, there is little more that can be done. Koh additionally discussed issues regarding the UN providing humanitarian aid without the consent of the Syrian government and the possibility that arming the rebels could be considered to not violate international law if the weapons were used to prevent a greater crime, namely the commission of atrocities.

Professor Koh’s lecture was a robust, and at times passionate, defence of the pragmatic nature of US foreign policy under President Obama. It provided a reminder that the abstraction of academic discourse on the subject of international law is often poorly matched to the reality of implementing foreign policy, where politics, compromise and competing interests can preclude ‘clean’ implementation of the law. Koh was quick to acknowledge the failures of the Obama administration as much as champion its successes, but progress has undoubtedly occurred under this administration in comparison to the approach adopted by George W. Bush. Not every international problem can be solved, but an adherence to the spirit of the law and application of the engage-translate-leverage framework is a solid base from which to build. Moreover, it must be acknowledged that international law acts as a restraint upon unilateral action, with the Security Council and its veto system in particular designed to maintain international peace and security on a macro level, sometimes at the expense of the interests of individual powerful states. While it is tragic that over a hundred thousand people have died in Syria, the fault for the dearth of international action lies with the protection of the Assad regime by Russia and to a lesser extent China, rather that the blame laying on the shoulders of international law itself.

Indeed, the Obama administration’s embrace of international law, while constraining the US from involving itself in Iraq-like extra-legal actions, is a development that will ultimately strengthen not only the US’ international reputation, but will significantly improve the perceived legitimacy of the law. The efficacy of international law is hampered by the lack of a centralised enforcement mechanism, meaning that its power lies more in its persuasive abilities than straight coercion. As such, the voluntary compliance with and indeed promotion of international law by a state as powerful as the US is a crucial bulwark against states such as Russia who use international law as a weapon of convenience, championing sovereign inviolability in the Syria case but wilfully ignoring the sovereignty of Ukraine. A willingness to adapt policy towards the requirements of the law, rather than adapting the interpretation of the law towards the requirements of policy, is a signal that not only that the law is valid, but that it is possible to effectively protect state self-interest within its framework.

 

Russia, the Ukraine and the Use of Force

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Russia’s annexation of the Crimea, and its continuing mobilisation of military troops along the Ukraine’s eastern borders, brings into question yet again, the efficacy and relevance of international law’s prohibition on the use of force. Enshrined in Article 2(4) of the UN Charter, it is a cornerstone of the UN’s fragile system of collective security and appeal to multilateralism to maintain peace and security amongst states. Writing in 1970, the late Thomas Franck, Professor of International Law at NYU, asked ‘who killed Article 2(4)?’ In response, Louis Henkin quipped that reports of the death of Article 2(4) were ‘greatly exaggerated’.  While it is true that states have, as Franck noted, ridden roughshod over the standards set by international law, it is notable that Russia – and others – have sought to justify their actions by appealing to international law’s often disputed norms. The Concept of the Foreign Policy of the Russian Federation, a statement on Russia’s core principles of foreign policy approved by Putin in February 2013, states Russia’s commitment to maintaining and strengthening the international rule of law, and somewhat ominously, to countering attempts by some states and groups of states to revise universally recognised norms of international law. Recalling, perhaps, recent tensions concerning Russia’s repressions of LGBT rights, the statement attacks the destructive and unlawful use of “soft power” and human rights concepts to exert political pressure on sovereign states. Instead it commits itself to promoting in international fora, Russia’s approach to human rights (emphasis added). In a comment that should perhaps have sounded alarm bells in the light of Russia’s use of force against Georgia in 2008, the statement also commits Russia to ensuring the comprehensive protection of rights and legitimate interests of Russian citizens and compatriots residing abroad.

 Specifically the statement criticises ‘arbitrary and politically motivated interpretation of fundamental international legal norms and principles’, such as the prohibition on the use of force and the right of peoples to self-determination. Such interpretations, it points out ‘pose particular danger to international peace, law and order.’ These comments appear particularly pertinent today, as we reflect upon the implications for international relations of Russia’s recent actions. In a cryptic blog post last month, Eric Posner of Chicago Law School, sought to break the silence – as he put it – from the international law commentariat. Russia’s actions he noted violated international law but  nothing would be done about it.

His  comment is at least partly true. The legacy of a decade of military interventions by Western powers and expansive interpretations of doctrines of self-defence and of humanitarian intervention, have taken their toll. Appeals to the legality of military interventions to support co-nationals, to support self-determination, and in self-defence, have challenged international laws’ legitimacy and its authority to constrain the self-interest of states as they push at its limits.  The claim that intervention followed an invitation from the now deposed Yanukovych, is a justification that was used to support the use of force by ECOWAS in Liberia and in Sierra Leone.

Russia’s willingness to exploit the contradictions in the practice of states, was evident in 2008 in its use of force against Georgia and the re-ignition of the so-called ‘frozen conflicts’ of South Ossetia and Abkhazia. There is also the legacy of Kosovo’s declaration of independence, and the cautious acceptance of this declaration by the international community, including Ireland. Ireland was however anxious to point to the exceptional circumstances that had led to Kosovo’s declaration, in particular the legacy of human rights abuses. The International Court of Justice, called upon to advise on the legality of Kosovo’s declaration, concluded that the declaration did not violate international law, there being nothing in the general principles of international law that prohibited such declarations. Its opinion, perhaps deliberately, left many questions unanswered, however, including what the legal consequences of such a declaration would be. Looking to the Court’s opinion to give answers to the Crimean situation is, we might say, like ‘Waiting for Godot’. Significantly, of course, Russia did not and does not recognise Kosovo’s declaration of independence.

There are, however, critical differences between Kosovo and the events in Crimea. The people of Kosovo had suffered a history of human rights abuses, particularly in the decade preceding NATO’s intervention, and the adoption of Security Council Resolution 1244. The same cannot be said of the Crimea’s recent history. And, in the Crimea, the holding of the referendum and the subsequent declaration of independence, was possible only with the threat or actual use of force by Russia – in clear violation of international law.

The Security Council, yet again, is unable to act in the face of this latest crisis facing international law. And, with echoes of the 1950 ‘Uniting for Peace resolution’ adopted against the backdrop of war on the Korean peninsula, the UN General Assembly has again stepped in. In a resolution adopted on March 27th, the Assembly underscores that the  referendum held in the Autonomous Republic of Crimea and in the city of Sevastopol, has ‘no validity’, and reiterates the commitment to supporting the territorial integrity of the Ukraine. The Resolution was adopted by an overwhelming majority, with some notable outliers of international law (Sudan, North Korea, Zimbabwe), voting against.

All of this to note that the ambiguities and uncertainties of international law are all too frequently exploited by states to their own ends. Self-interest continues to shape the practice of states, amid growing uncertainty concerning the path to be taken in Eastern Ukraine. Such challenges to the legitimacy and efficacy of international law are not new. While states all too frequently violate international law, they continue, to insist that they are acting in full compliance with its norms and standards, even at the risk, as Thomas Franck put it,  of failing the laugh test’. So too does Russia, and so too does it risk ‘failing the laugh test’.

Siobhán Mullally, Professor of Law, University College Cork and Director of the LLM programme in International Human Rights Law and Public Policy.

Seminar on Gender Law and Sexuality in Pakistan

WARWICK-WARWICK-189781904 javaidOn January 23rd, the Centre for Criminal Justice and Human Rights and School of Asian Studies, UCC, will host a seminar on Gender, Security and Islam: Negotiating religion, culture and conflict in Pakistan, with leading international human rights law experts.

Prof Shaheen Sardar-Ali, Professor of Law, University of Warwick and Vice-President UN Working Group on Arbitrary Detention will speak on ‘The Dynamics of Family Law Reform in Pakistan: A Gender Perspective’ . Prof Javaid Rehman, Professor of Islamic Law and Human Rights, Brunel Law School will speak on ‘Sexual Minorities and Islamic State Practices: Examining the issue of the rights of LGBT and other sexual minorities in Pakistan’.

 Thursday Jan 23rd, 3-5pm, Venue: Aras na Laoi, Moot Court room (first floor, to the left of the Law Dept reception office).  

This event is supported by an Irish Research Council New Foundations award. All Welcome.

 

Geneva II, politicking and possibility for Syria’s invisible 43%

Sarah Field

Sarah M. Field (Oxford Human Rights Hub, 8th January 2014)

The possibility of peace in Syria may seem more like an international force (pun intended) than a beacon of hope. History though tells us to ‘believe…’.* The form of the conflict’s resolution is simply unimagined — as yet. Dig deeper though and history also tells us another story: the transformation of conflict is likely to be partial — children, particularly, are likely to be invisible within decision-making towards peace agreements. To date, the Syrian peace process substantiates this: there is no reference to children — 43% of the population — within Geneva Communiqué I and just one reference within the Communiqué of the London 11 

And herein lies the paradox. From the Central African Republic to Syria (and beyond), no one can be unaware of the impact of conflict on children. Though politicians recurrently invoke this — the children hurt and harmed by conflict — as a call to action (whether towards military action or advancing peace), they seldom raise the subject of children and their rights within decision-making towards agreements. A cynic might reason the confluence of interests is missing; without any broader political gain, principled commitments to children are insufficient to ensure the child question is raised and prioritised. Certainly there is some truth to this reasoning. However, it is also likely the politicking towards — and subsequently within — the peace trajectory spaces subsumes consideration of children.

Simply, there is nobody to raise, and prioritise, the subject of children and their rights. There is nothing new about this: all it does is re-affirm why rights are important, the right to be heard particularly. Or in other words an intimate connection to the right — as that of the right holder — is key to asking the child question, influencing the process and impacting on the outcomes (the peace agreements). The question then is how: how to ensure children’s rights ‘in’ and ‘through’ the process. To an extent the answer to this is simple: fulfilling those promises our representatives made to children over twenty-four years ago — legal obligations almost all jurisdictions have committed to by virtue of ratification of the Convention on the Rights of the Child including the Syrian Arab Republic. Two are of particular relevance: ensuring the best interests of the child and assuring respect for children’s views within decision-making affecting them.

Of course, applying these legal obligations to peace processes is complicated. However, contrary to our imaginings, peace processes also present possibilitiesFirst, the staged and elongated character provides space for asking the child question. Second, the hybrid legal form ensures engagement with international law including within decision-making about how to constitute the space. Third, there is often an interface between political commitments to international human rights law and political imperatives — asking the human rights question (transforming inequalities within the process and outcomes) contributes towards advancing the peace momentum. Fourth, the creativity that propels peace processes forward as they fracture and stall opens space for dreaming ‘…things that never were…’.*  

Framed by over 1,000 days of conflict in Syria, the political challenges of securing a peaceful solution are immense. History tells us though within (and between) these challenges there are possibilities for securing a peace inclusive of children. A possible beginning is to appoint a legal representative to the space with a mandate to ask the child question — raise the subject of children and their rights. Without such a structural response, there is no certainty the child question will be asked as the peace trajectory edges falteringly forward. If the child question remains unasked, the possibility of outcomes for the children of Syria is reduced — now and into the future.

 14 days until Geneva II, now, is the time to ensure children are part of the conversation.

 *These are quotations from respectively Seamus Heaney (‘The Cure at Troy’) and George Bernard Shaw (‘Back to Methuselah’).

 

With thanks to the Oxford Human Rights Hub for their generosity in permitting the re-posting of this blog entry of 8th January 2014. See also, the original posting, accessible here

Sarah M. Field is a Human Rights Practitioner with global experience supporting the rights-based development of the rule of law, a Post-Doctoral Researcher at the Faculty of Law, University College Cork, Ireland and the founder of a developing legal advocacy project asking the child question. This posting is part of a series probing the paradoxes and consequences of children’s invisibility within peace processes and the challenges and possibilities for more inclusive processes.  

‘A voice for sexual orientation and gender identity in the Universal Periodic Review’

We are delighted to welcome this guest post from Aengus Carroll, who recently completed the LLM in International Human Rights Law and Public Policy at UCC.  Aengus’s LLM dissertation examined sexual orientation and gender identity rights claims and advocacy through the Universal Periodic Review mechanism.

 ‘A vBannerHRCoice for sexual orientation and gender identity in the Universal Periodic Review’ (edited extract from 2013 UCC LL.M dissertation  by aenguscarroll@gmail.com)

 Perhaps one of the central problems at the UN Human Rights Council (HRC) in regards to establishing a cognisable norm around sexual orientation and gender identity (SOGI), a subject that resonates so many deeply-held cultural and personal values, is the modus operandi through which these considerations are happening. Regional groups (cross cut by organisation membership, such as the 57-State Organisation of Islamic Cooperation) make politicised and recalcitrant statements regarding human rights in dialogues and Resolutions that are then voted on, rather than having the space for expansive or explorative dialogue for what are genuine concerns to be aired in anything other than polarised terms.

The Universal Periodic Review process, completed its first four and a half year cycle in 2012. Its dialogic structure seems to facilitate an expansive understanding of the multiple perspectives existing in any one State on human rights issues, and how they intersect or relate to each other. Although the UPR is a State-centric process, engagement in the process by civil society organisations, brings to the fore uniquely situated perspectives on how cultural values interact with diversity, including diversity in gender identity and sexual orientation.  The preparation for, and follow on from, the act of articulating such perspectives in the UPR reporting cycle, builds capacity for civil society organisations (CSOs), including NGOs. The process can, and frequently does, open human rights defenders and particular minorities to considerable risk, often State-sponsored and citizen-led.

The UPR enhances a potential already long realized by SOGI advocates with UN mechanisms: use the international space as an amplifier to get their issues heard at their own national levels. The UPR process acts as a ‘loudspeaker’ for CSOs’ reports and data that expose how, in the case of SOGI, the over-arching issues of discrimination and criminalisation lead to violations of positive and negative obligations under IHRL in domestic settings regarding LGBT people.

Through the UPR process, ‘action level’ categories have been designed that are indicated by the type of primary action verb used by the Recommending State (hereafter RS). These can be divided into five types, ranked on a scale from 1 (minimal action), 2 (continue doing), 3 ((to consider), 4 (general action) to 5 (specific action).[1] The verb used defines whether the SuR is requested only to ‘consider’ the action or to complete it. In his recent analysis of the HRC, Rathberger notes that amongst all the recommendations issued through the first cycle of the UPR (sessions 1-12), the more specific or action-oriented the recommendations the lower the acceptance rate.Further, he notes that explicit or outright rejections of recommendations tended not to be articulated, reluctance being coded in such terms as “taking note of recommendations” or other general responses.

However, this conciliatory or diplomatic approach appears to apply to SOGI much less often, the subject of which has frequently elicited strong and unambiguous rejection from African (AF) and Asian & Pacific (AS-PAC) bloc States particularly, in all action categories. Their responses to recommendations reflect issues of sovereignty and tradition, most often in terms of protecting public morality. The overall acceptance rate for all recommendations in the first cycle of the UPR was 73% according to Schlanbusch, however acceptance of the recommendations related to recognition of SOGI-related human rights was only 36%.

From a total of 21,353 recommendations to all States in the first cycle, only 493 (2.3%) referred to sexual orientation and gender identity (across the five action types). The UPR-info database shows that of these 179 (36%) were ‘accepted’ – 18 by the African group, 29 by the Asian & Pacific group, 60 by the Eastern European Group; (EEG) group, 36 (by the Latin American and Caribbean Group (GRULAC) and 36 by the Western European and Others Group (WEOG) group. These 493 recommendations were issued by only 39 States in total. Schlanbusch points out that 76% of these came from 22 (of 28) WEOG States, 16% from two EEG States (Slovenia and the Czech Republic), 8% from six GRULAC States, and none from the African bloc. The only one that came from the AS+PAC bloc (Bangladesh), demonstrated a particularly novel (and ominous) use of the UPR by recommending denial of human rights by recommending that Tonga’s criminal laws regarding “consensual same sex” remain as it is “outside the purvue of human rights norms”!

The UPR-info database shows 314 (63.5%) of those recommendations that elicited negative response regarding SOGI (where no meaningful action might be expected) were either ‘rejected’, given a ‘general response’ or received ‘no response’ at all. Of these, Africa outright rejected 107 recommendations (34% of all those rejected) with negligible responses to a further 23 (8%).[2] While at the other extreme, the Western European and Others Group (WEOG) only rejected 15, with negligible response to a further 5.  African countries account for around half of the world’s criminalising States, and as described here, account for almost half (42%) of the world’s total UPR rejections of recommendations regarding SOGI. Of those 314 responses that can be read as negative, 223 are outright rejections and 91 responses comprise general responses or no comment at all. Each one of these negative responses can be seen as a statement of how a State’s understanding of how traditional and cultural values on what they consider to be ‘sensitive’ issues “trump” (to reverse Dworkin’s thesis) human rights obligations as interpreted in the body of IHRL. Regarding the question of what evidence is there of the actual effect of the UPR on national legislations, 7% of States (five countries; Seychelles; Nauru, Palau, Solomon Islands, Sao Tomé & Principe) accepted Action level 5 recommendations (take specific action) to decriminalise sexual orientation in the first cycle of the UPR. However, the actual implementation of such commitments remains to be seen. The issue of follow-up is currently a central weakness of the mechanism – although encouraged, States are not obliged to deliver mid-term assessments or develop other tracking mechanisms with indigenous CSOs between UPR cycles (such as that recently developed in India). However, the process is proving to provide an essential opportunity for CSOs to bring some scrutiny on how their intersectional priorities are addressed by their States. The process is also helping to clarify deeper questions around the limits of the reach of human rights that are perceived to clash with cultural or traditional values, in places such as Russia, Cameroon or Uganda.

 

[1] An extensive and interesting list of verb under each level are supplied in the link above.

[2] Of the outright rejections, 70 (65%) were in action level 5, (22%) at action level 4, 13 (12%) at level 3, and none at either action levels 2 or 1.

Racism and Hate Crime: Oct 4th conference

On October 4th, the CCJHR will co-host a conference on Racism and Hate Crime in Ireland. An excellent line up of speakers will present at the event, addressing topics such as incitement to hatred, hate crimes, the role of the criminal law, Council of Europe human rights standards and institutionalised racism.

Racism and Hate Crimes in Ireland: Is the Legislative and Policy Framework Adequate?

Conference: 4th October 2013

Venue: Brookfield Health Science Building, College Road, Room G10, University College Cork

Time: 1.15 – 5.00pm (registration begins at 1.00pm)

 hosted by NASC, the Irish Immigrant Support Centre and the Centre for Criminal Justice and Human Rights, UCC

Speakers

  • Michael Farrell, Member of the European Commission against Racism and Intolerance (ECRI) and Senior Solicitor with FLAC
  • David Joyce, Barrister at Law, Member of the Irish Human Rights Commission and of the Board of the Equality Authority
  • Deputy Aodhan O’Riordain, T.D.
  • Stephen O’Hare, Policy and Research Officer, ICCL
  • Carole-Anne O’Brien, BelongTo Youth Services
  • Seamus Taylor, NUI Maynooth
  • Jennifer Schweppe, University of Limerick

Chair: Prof Síobhán Mullally, Director,  CCJHR, UCC

The conference is free to attend. To register, please email: jennifer@nascireland.org

3.5 CPD group hours available

There is no registration fee for this event, but advance booking is essential.