Rights-based approach to child law

In today’s Irish Times Dr Ursula Kilkelly explores the increasing impact of international law on Ireland’s family law. The sources of international law in this area not only include the seminal Convention on the Rights of the Child, but also law emerging from the Hague Convention on Private International Law and from Europe (Council of Europe and the European Union). As Dr Kilkelly notes

Many of these declarations, treaties and agreements represent collective wisdom, accommodate diverse legal and social systems and reflect a common language and approach to child and family law matters such as adoption, family breakdown and matters of custody and access.

She goes on to highlight that the more recent significant development in this area is the EU Charter of Fundamental Rights, which came into force on December 1st as part of the Lisbon Treaty. Importantly, the Charter requires that the best interest of the child is a primary consideration in all actions concerning children. It also expects that children’s views be taken into account in matters that concern them. It is clear that in this area the Charter reflects the approach of the CRC and is as a result likely to of major importance in Irish domestic law.

Indeed, it may require a reshaping of Irish law in this area, which continues to think about children in paternalistic terms…. Concepts of “welfare” (all its components), “custody” and “access” should be challenged on the basis of the convention’s influence for their failure to promote effectively the independent rights of children to care and protection and to enjoy contact with and the involvement of both parents in their lives.

Ultimately, whilst Dr Kilkelly notes that

[T]he complexity of Irish family law, into which international and European law is now interwoven, means that lawyers need GPS to navigate its many layers and influences. The changing face of family law in Ireland brings with it the challenge of keeping up with these many new and fast-developing authorities.

She also concludes that there are many positive opportunities that will flow from these fast changing developments:

For those interested in pushing out the limits of Irish family law, in seeing it modernised from within, these inter-related international instruments and their underlying values provide a lens through which Irish family law can be considered afresh.

Will everyone say No to the WTO?

The Referendum on the Lisbon Treaty brought the issue of the WTO Doha round of negotiations to the public attention. Farmers took to the streets of Dublin to protest the negotiations and warn the country that the beef industry would be ‘decimated’ with a loss of rural jobs and €2bn. The issue rapidly became mixed with the debate on the Lisbon Treaty and the concern about the negotiating position of EU Trade Commissioner Peter Mandelson which resulted in him becoming the poster boy for the No campaign.

At the last minute the government promised the farmers that all would be well if Lisbon went ahead – Ireland would still have its veto and use it on any unsatisfactory Doha agreement. Yet the results from rural areas in the referendum suggest many farmers simply did not believe the Government and remained fearful of the Doha negotiations.

The Doha round began in 2001 and aimed to make globalisation more inclusive and help the world’s poor, in particular by cutting barriers and subsidies in farming. The key issues under negotiation are farm subsidies, farm tariffs and industrial goods. So far the negotiations have been unsuccessful. The 2006 deadline for agreement was missed with problems centred on the issue of state aid given to key industries in the west and in particular the US/EU farming subsidies and tariffs.

In May fresh draft plans were produced by the WTO which is hoping to achieve an agreement by the end of the year. WTO Director-General Pascal Lamy linked the success of the negotiations to a solution to the current world food crisis saying that agreement would offer

“medium to long-term solutions to the current crisis…We all aim to substantially lower barriers to trade in agricultural products and diminish levels of trade distorting subsidies, particularly in developed countries that have hampered food production and investment in agriculture in many developing countries.”

In response leading NGOs, farming associations, trade unions and social movements issued an open letter stating that a Doha agreement would in fact make the situation worse. Instead they called for:

1. Governments and communities to have a range of tools at their disposal to build resilient food and agricultural systems that are ready for the challenges that lie ahead.
2. Volatile agricultural prices to be addressed through national policies and global actions to avert food crises and to ensure small producers a reliable and steady income.
3. Governments to establish safety nets and public distribution systems to prevent widespread hunger.
4. A reform of the food aid system, with donor countries ending their practice of dumping their surplus food products on developing nations and instead providing cash so that governments and aid agencies can buy food locally.

The fear is that increased free trade in farming will in fact mean increased power to the already powerful “multinational agribusiness” leaving local farmers around the world unable to manage control their own destinies and reducing the ability of developing nations to protect their populations from hunger in the face of food shortages and rising prices. Free trade has little interest in food security, despite Pascal Lamy’s claim that the best way to end the food crisis is to encourage economic growth and eliminate poverty so that the poor would be able to afford a decent diet.
For Ireland’s farmers, the fears of a deal that will cut their valuable subsidies and open up the EU to cheap foreign agricultural products have not disappeared because the No campaign won the Lisbon vote. Nothing has changed in relation to the WTO except that Ireland’s position in Europe has perhaps been weakened. However, it maybe that the Doha round was never a threat and that seven years of negotiations will result in no deal.