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Peoples News issue No. 110 Date: 21 – 9 – 14 22:01 Oct 01 1 commentsmore >>
Life should be full of strangeness, like a rich painting
Global Finance, Money and Power - Lecture 11: Alternatives 08:55 Thu Nov 27, 2014
THE WORLD COULD SORT OUT EBOLA FOR THE PRICE OF ONE BONO 23:07 Tue Nov 18, 2014
WELL THAT?S IRISH WATER FINALLY SORTED OUT 23:04 Tue Nov 18, 2014
1916 in 2016 08:47 Mon Nov 17, 2014
IRELAND, POLAND AND FRACKING 07:56 Mon Nov 17, 2014
Joined up thinking for the Irish Left
Trailing Behind Europe in Employment Growth Wed Nov 26, 2014 15:32 | Michael Taft
Latest Issue of People?s News is Out Now Wed Nov 26, 2014 15:26 | Irish Left Review
Make the Economy Better ? Abolish Zero-Hour Contracts Tue Nov 25, 2014 09:02 | Michael Taft
From Alpha to Omega Podcast #56: Essence and the Philosophy of Science Mon Nov 24, 2014 22:53 | Tom O'Brien
Progressive Film Club: Films on Conflict Around the World Mon Nov 24, 2014 22:08 | Irish Left Review
Farewell from NWL Sun May 19, 2013 14:00 | namawinelake
Happy 70th Birthday, Michael Sun May 19, 2013 14:00 | namawinelake
Of the Week? Sat May 18, 2013 00:02 | namawinelake
Noonan denies IBRC legal fees loan approval to Paddy McKillen was in breach of E... Fri May 17, 2013 14:23 | namawinelake
Gayle Killilea Dunne asks to be added as notice party in Sean Dunne?s bankruptcy Fri May 17, 2013 12:30 | namawinelake
admin - Thu Nov 27, 2014 09:00
We are please to welcome this guest post from Lydia Bracken, PhD Candidate and Department of Children and Youth Affairs Research Scholar at the Faculty of Law, University College Cork. The urgent need to introduce legislation to govern the precarious position of stakeholders in the surrogacy process formed a common thread amongst the seven judgments handed(...)
We are please to welcome this guest post from Lydia Bracken, PhD Candidate and Department of Children and Youth Affairs Research Scholar at the Faculty of Law, University College Cork.
The urgent need to introduce legislation to govern the precarious position of stakeholders in the surrogacy process formed a common thread amongst the seven judgments handed down by the Supreme Court in its recent ruling in the MR and An tArd Chláraitheoir case. Each of the judges expressed disquiet about the current lack of legal regulation in this area and in relation to the fact that, presently, the legal status of children born via surrogacy is ?determined by happenstance.? Certainty was said to be vitally important for families involved in the surrogacy process and such certainty could only be achieved through the enactment of legislation.
Initially, the Government had included provisions to regulate parentage in cases of surrogacy in the Children and Family Relationships Bill 2014. These provisions provided that, in a surrogacy arrangement, the woman who gives birth to the child (ie. the surrogate) would automatically be regarded as the legal mother. The commissioning parents could, however, subsequently apply for a parental order so as to extinguish the surrogate?s parental status and to acquire parental responsibilities and rights for themselves. These provisions have since been removed from the Bill, however, and so in light of the Supreme Court?s finding that the woman who gives birth to the child is to be regarded as the child?s legal mother, the question now arises as to whether these provisions will be reinserted and, if they are, whether this is appropriate.
It is questionable as to whether the original provisions would strike an appropriate balance between the rights of all stakeholders in the surrogacy process. In particular, it should be noted that the parental order, as envisaged in the Bill, could not be sought less than 30 days after and not more than 6 months after the child?s birth. Prior to the granting of this order, the surrogate would continue to be recognised as the child?s legal mother and her consent would be required before the order could be made. Therefore, until this consent is given, there would be uncertainty as to whether the child would remain as the legal child of the surrogate or whether parentage would be transferred to the commissioning parents. This leaves the commissioning parents in an undesirable position as their status as joint legal parents cannot be established until the surrogate has exercised her choice.
Although it is quite a rare occurrence, should the surrogate refuse to consent to the parental order, the only option available to the commissioning parents to establish a legal relationship with the child would be to apply for guardianship as per Head 42 of the 2014 Bill. Where the commissioning father is also the genetic father of the child, he may apply for guardianship immediately in the same manner as any other unmarried father. The commissioning mother, however, as a ?non-parent?(notwithstanding the fact that she may also be genetically related to the child) would have to have shared responsibility for the child?s day-to-day care for a period of at least two years before she would become eligible to apply. Similarly, where the commissioning parents are a male same-sex couple, this two year waiting period would also apply to the genetic father?s partner. Moreover, the consent of the surrogate would be required before either of the commissioning parents could be appointed as guardians, although the court would be at liberty to dispense with the surrogate?s consent where it is unreasonably withheld and where it is in the best interests of the child to do so.
It is, however, quite uncommon that a surrogate would subsequently seek to keep the child and therefore refuse to consent to the parental order. Typically, the child will be taken into the care of the commissioning parents prior to the making of the order. It should be noted, however, that in this period prior to the making of the parental order, the surrogate, as opposed to the commissioning parents, would be entitled to make decisions in respect of the child, for example in relation to consent to medical treatment. A genetic father could enter into a guardianship agreement with the surrogate so as to obtain parental responsibilities and rights in advance of the making of the parental order, but this option will not apply to a non-genetic commissioning father or indeed to a commissioning mother. The child could, therefore, be left in a vulnerable position as the commissioning parents may be hindered from fully protecting his or her interests during this intervening period. Furthermore, if the surrogate was to die during childbirth, the child, as the legal child of the surrogate, would be entitled to succeed from her estate under succession law. It is unlikely that this would have been intended by the parties at the outset of the agreement.
By contrast, other countries have dealt with the question of the allocation of parentage in surrogacy arrangements through the use of pre-conception orders. In South Africa, for example, under the Children?s Act 38 of 2005, surrogacy agreements can be validated by the High Court before the surrogacy is undertaken. Where validation is granted, the commissioning parents will be treated as the legal parents from the moment of the child?s birth. The surrogate will not acquire any parental status and she is legally required to ?hand over? the child as soon as is reasonably possible after the birth. It should be noted, however, that a distinction is made in South African law between ?full? and ?partial? surrogacy. In the latter case, where the surrogate is also the genetic mother of the child, she retains the right to terminate the surrogate agreement within sixty days of the birth of the child. In Ireland, however, given that the original provisions of the 2014 Bill proposed to exclude the use of ?partial? surrogacy, this issue would not arise.
Requiring that parental status is determined prior to the birth of the child would seem to strike a more appropriate balance between the interests of those involved in the surrogacy process than the original Irish proposals. The pre-conception order provides certainty and it removes the difficulties which can arise prior to the making of a parental order, as discussed above. Furthermore, it should be recalled that the Report of the Commission on Assisted Human Reproduction recommended by a majority in 2005 that the commissioning parents should be presumed to be the legal parents of any child born through surrogacy. Legislating for pre-conception orders to confer legal parental status on the commissioning parents from the moment of the child?s birth would, therefore, be in keeping with this recommendation.
Whatever legislative approach is ultimately undertaken, it is to be hoped that it will occur without unnecessary delay. As O?Donnell J. stated in the MR case, ?[t]he absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation.? The families involved in the surrogacy process require and deserve security. In particular, the children born through the process require protection so as to avoid the ?legal half-world? into which they are currently born and so it is to be hoped that legislation will be forthcoming.
Liam Thornton - Tue Nov 25, 2014 15:58
On December 11 2014, the new edited collection Ireland and the European Convention on Human Rights: 60 Years and Beyond (Bloomsbury, 2014) will be launched by The Hon. Ms. Justice Ann Power-Forde in UCD School of Law. Date: 11 December 2014 Time: 6.30 p.m. Location: The Atrium, UCD Sutherland School of Law, Belfield, Dublin 4 RSVP: Please(...)
On December 11 2014, the new edited collection Ireland and the European Convention on Human Rights: 60 Years and Beyond (Bloomsbury, 2014) will be launched by The Hon. Ms. Justice Ann Power-Forde in UCD School of Law.
Date: 11 December 2014
Time: 6.30 p.m.
Location: The Atrium, UCD Sutherland School of Law, Belfield, Dublin 4
RSVP: Please RSVP to Sinead Hennessy, email: firstname.lastname@example.org or telephone: 01 716 4105.
About Judge Power-Forde
Judge Power-Forde served as the Irish judge on the European Court of Human Rights from 2008 until October 2014. Judge Power-Forde was appointed a Senior Counsel in 2006 . Prior to Judge Power-Forde’s elevation to the ECtHR, she practised extensively in constitutional and public law, child law and medical law. Judge Power-Forde has also lectured extensively in a variety of education institutions in law and philosophy.
This edited collection provides expert analysis on a wide variety of areas, including: the operation and impact of the ECHR and ECHR Act 2003 in Ireland, the growing impact of the European Union Charter of Fundamental Rights and its relationship with the ECHR law in Ireland, the role of the ECHR in the private sphere, direct provision and the ECHR, immigration, gender recognition, socio-economic rights and public interest law and issues relating to access to justice. The preface and full table of contents for this edited collection, can be accessed here: Preface & Table of Contents Ireland and the ECHR 60 Years and Beyond (with thanks to Bloomsbury for permission for this).
Bloomsbury are offering Human Rights in Ireland readers a 20% discount on the purchase price of this collection. You can order a copy here and you should use the discount code: ECHR20% when promoted to enter the discount code in the payment field.
GuestPost - Sun Nov 23, 2014 16:59
We welcome this post from Communities Against Water Charges On Monday the 24 November 2014 we expect four of our friends and neighbors to be committed to prison for exercising their right to peaceful protest. They are to be punished for failing to abide by a High Court injunction granted to GMC Sierra which requires them(...)
We welcome this post from Communities Against Water Charges
On Monday the 24 November 2014 we expect four of our friends and neighbors to be committed to prison for exercising their right to peaceful protest. They are to be punished for failing to abide by a High Court injunction granted to GMC Sierra which requires them (and any other protester) to, among other things, remain at least 20 meters away from workers installing unwanted water meters.
GuestPost - Thu Nov 20, 2014 18:31
Human Rights in Ireland welcomes this guest post from Mairead Healy. Mairead is the founder of Future Voices and she is also an Ashoka Fellow. Are you interested in making a difference? Are you passionate about working with young people? Do you relate well with young people from diverse backgrounds? If the answer is YES, maybe(...)
Are you interested in making a difference? Are you passionate about working with young people? Do you relate well with young people from diverse backgrounds?
If the answer is YES, maybe you should consider volunteering with us!
Future Voices Ireland, an exciting and innovative youth empowerment organisation is currently seeking Volunteer Group Leaders for its Flagship and Step up to the Mark programmes, commencing in January 2015. We are particularly seeking volunteers who have a youth work background or community development experience working directly with young people from marginalised backgrounds. Additionally, for our new programmes this year, we are seeking volunteers who have a strong experience in campaigning and advocacy.
Volunteer Group Leaders are involved in leading debates and group discussions with the young people participating in the Future Voices project. Volunteering with Future Voices Ireland allows volunteers the opportunity to make a real difference to the lives of the young people we work with.
Our sessions take place every Saturday between the months of January-July. Volunteers work on a Rota basis so you don?t need to commit to every weekend and if there are particular periods when you are unavailable we can work around this. Please be aware that those selected will be required to undergo Garda vetting and will need to sign a criminal offence disclosure. We hope to meet for an informal chat with those interested in volunteering. Any queries on volunteering can be addressed to Mairead Healy on 0834470784. If selected, we require all volunteers to undergo training which covers your role as a volunteer and child protection training.
Apply here: Online Volunteer Application
GuestPost - Wed Nov 19, 2014 08:00
Human Rights in Ireland welcomes this guest post from Geraldine Murphy, Legal & Social Welfare Intern at the Free Legal Advice Centres (FLAC). The parallel report on Ireland?s compliance with the International Covenant on Economic, Social and Cultural Rights, Our Voices, Our Rights is available to download here. This year marks the 25th anniversary of Ireland?s ratification of the International(...)
Human Rights in Ireland welcomes this guest post from Geraldine Murphy, Legal & Social Welfare Intern at the Free Legal Advice Centres (FLAC). The parallel report on Ireland?s compliance with the International Covenant on Economic, Social and Cultural Rights, Our Voices, Our Rights is available to download here.
This year marks the 25th anniversary of Ireland?s ratification of the International Covenant on Economic, Social and Cultural Rights. Under this covenant a UN committee sitting in Geneva examines each signatory country roughly every five years on the progression of their obligations under the covenant. Since its ratification in 1989, Ireland has been examined under the Covenant twice, in 1999 and in 2002. The next examination under the covenant will take place in June 2015.
The covenant covers rights including the right to work, fair wages, social security, the right to the highest standard of mental and physical health, the right to education and the right to take part in cultural life. As such it covers areas that span right across the lives of people in Ireland and the organisations in the NGO sector that support them.
In the examination process, each state must submit a report to the committee. Civil society organisations may then submit a ?shadow? or ?parallel? report which offers an independent view on how the state has or has not realised or progressed its obligations under the Covenant. Ireland submitted its most recent report in 2013, covering the period of 2002 to 2010. As Ireland is being examined by the committee in 2015, the government?s report will thus be five years out of date by the time it is examined – a significant length of time to be left unreported.
Further, State reports naturally tend to focus on positive progress and actions by Government. This is where a shadow report by civil society is vitally important to provide valuable independent information, not just to supplement the government?s report, but to highlight any inaccuracies and, in this case, to account for the glaring gap of five years in the State report, such that the committee can hold the Irish Government to account on the most relevant issues.
Parallel reporting ? a tool for rights-based change
A civil society report generally aims to influence the List of Issues on which the committee will question the government party. This may prompt the Committee to request more information from the State in question, and ultimately the government will be publically questioned on the issues involved.
Civil society is growing its knowledge on how to use mechanisms such as ICESCR to promote basic rights. The public questioning of the government by a UN committee provides civil society with a platform to hold the government to account for its progress on protecting, promoting and fulfilling rights and to explain its actions in an international setting amongst peer nations.
Following this examination the Committee publishes a report (?concluding observations?) with recommendations for the government to act upon. This report provides civil society with a strong basis for which they can hold the government to account when campaigning in their particular area.
Our Voice, Our Rights: A parallel report
In early December 2014, the UN Committee on Social, Economic and Cultural Rights will decide the ?List of Issues? on which it will question the Irish Government on its performance under ICESCR. With this important event in mind FLAC coordinated a parallel report on how the Irish State is meeting its obligations under the Covenant, based on evidence from a wide variety of diverse organisations throughout Ireland which promote rights covered under ICESCR.
In compiling this report, FLAC consulted with more than 50 civil society organisations and individuals around Ireland. The report represents a range of issues which FLAC believes have not been adequately covered by the Irish State Report. It covers the period from 2002 to mid-September 2014 and examines issues arising under each of the different Covenant Articles where relevant.
?Our Voice, Our Rights? brings together organisations from across the spectrum of rights to voice their concerns and to illustrate how the decisions and action of the government with respect to economic social and cultural right are affecting people on the ground. This report exemplifies a combined action by independent organisations, with a common focus of human rights, to hold the government to account for its responsibilities and obligations under the Covenant.
The reporting process
A fundamental feature of the process involved in a collective report such as this is to ensure maximum consultation with organisations working on the ground in relation to Covenant issues. Consultations were held in Cork, Galway and Dublin in an effort to gather information from as many bodies countrywide as was practicable. While most issues in the report would hold for communities rural and urban all over the country, in some cases such as poor broadband connectivity, the effect of transport quality in rural communities and its impact on people?s right to enjoy cultural life there are region-specific highlights.
Why is this important?
A comprehensive report with clear recommendations for the UN Committee on Economic, Social and Cultural Rights to consider when they compile their list of issues means the Committee will have a more balanced view of what has been happening in Ireland since 2002. ?Our Voices, Our Rights? provides the committee with the opportunity to see the rights and issues in context. It also provides them with a clear view of the rights that have either not been progressed since the last review, or in the case of some rights, which have been regressed.
Liam Thornton - Mon Nov 17, 2014 16:17
This post summarises some of the main grounds of challenge to the direct provision system in the case and the findings of Mr Justice Colm Mac Eochaidh only. I hope to be able to do an analysis of this decision in the coming weeks. This is a longer post than usual, and for ease of(...)
This post summarises some of the main grounds of challenge to the direct provision system in the case and the findings of Mr Justice Colm Mac Eochaidh only. I hope to be able to do an analysis of this decision in the coming weeks. This is a longer post than usual, and for ease of reading, a PDF of this post can be accessed here.
Mr Justice Colm Mac Eochaidh delivered his decision in the case of C.A. and T.A v The Minister for Justice and others on Friday, 14 November 2014. This (rather long) post, sets out the facts of this judicial review and the decision of Mac Eochaidh J. on the argued grounds. This summary is based on Mr Justice Mac Eochaidh?s unapproved decision, and the approved judgment will be available from the Courts Service soon.
C.A. is a national of Uganda and a young mother. C.A. claimed refugee status in Ireland in April 2010. C.A. made an application for refugee status but this was initially rejected by the Office of the Refugee Applications Commissioner. The Refugee Appeals Tribunal also found that C.A. did not meet the definition of refugee for the purposes of the Refugee Act 1996 (as amended) in October 2011. These decisions were not judicially reviewed by C.A. In December 2011, C.A. made a claim for subsidiary protection. This claim has yet to be determined. [The reason for the delay relates to a separate legal challenge by another subsidiary protection applicant, that successfully led to significant changes in the determination of subsidiary protection claims]. C.A. has resided in direct provision accommodation centre in Galway since June 2010. C.A.?s son, T.A., was born in January 2011 and has resided in direct provision accommodation and was also challenging the system of direct provision on a number of grounds.
The Decision of Mac Eochaidh J.
The Successful Grounds of Challenge
The High Court was invited to consider whether the Reception and Integration Agency?s House Rules in Direct Provision violate Article 8 ECHR (the right to private, family life and the protection of the home). While accepting that the Article 8 ECHR is not absolute, MacEochaidh J. held that the elements of the House Rules outlined below were unlawful.
The High Court determined that the bedroom of the applicants was their home, and protected by Article 40.5 of the Constitution and Article 8 ECHR.
The applicant?s are entitled to have an independent complaints handling procedure. Regardless of whether the applicant has had cause to use this (which to date C.A had not). RIA is the author of the House Rules and is in a commercial relationship with the accommodation provider. Mac Eochaidh J. stated that it was not acceptable that RIA would be the final arbitrator in a dispute between the residents in their homes, and the commercial accommodation provider. This breaches the legal principle that nobody should be a judge in something that they have an interest in.
The Unsuccessful Grounds of Challenge
Mac Eochaidh J. noted that the lack of oral evidence, and the fact that the evidence of C.A and T.A was disputed, meant that he could not rule as to whether in this particular case the applicants? constitutional and ECHR rights had been violated due to the conditions and duration of their stay in direct provision (see para. 3.1 and paras. 6.1 to 12.6). Judge Mac Eochaidh held that the European Union Charter of Fundamental Rights did not apply to this case (see paras. 11.1 to 11.10 of the decision). As regards the State?s argument that the courts should not decide on socio-economic rights claims, Mac Eochaidh stated that where (at para. 12.6):
While ultimately rejecting the applicants? claims in this case, at para. 12.6 of his decision, Judge Mac Eochaidh did state:
The applicant had argued that she and her son have little control over aspects of their daily life as regards food and eating times, direct provision as being unsuitable for raising a child leading to an abnormal family life; lack of privacy and restrictions on freedom of movement. The applicant (at para. 10 of her affidavit, reproduced in para. 3.10 of this decision) states:
The adult applicant noted the difficulties in providing for her son and how the ?28.70 payment per week means she cannot provide adequately for her son. In a subsequent affidavit, the applicant (para. 3.11 of the decision) notes the level of surveillance and monitoring of parental responsibilities by the authorities, that is only a feature of direct provision.
The respondents presented two affidavits?? in response to the allegations made by C.A. The manager of the direct provision centre stated that he was ?taken aback by the allegations? and ?the Centre prides itself on its standards and its involvement with the residents living there. The accommodation is considered their home while they are there?.? The accommodation manager also noted that the applicant had not brought any complaints as regards quality of the accommodation and services provided in the accommodation centre prior to this action.
Noel Dowling, Principal Officer in the Reception and Integration Agency noted the applicants had a ?generous and nutritious selection of food?? and:
Mr Dowling continued:
Mac Eochaidh J. noted the wide variety of reports that the applicants had sought to open before the court, however due to rules on hearsay, did not take cognisance of these reports (full list on para. 4.2 of the decision). Mac Eochaidh J. accepted that the applicant had very negative feelings about the system of direct provision. However, the High Court stated that there was significant dispute between the applicants and the respondents as regards what negative effects occurred due to direct provision. As the applicants did not seek a plenary hearing (wherein witnesses from both sides could be questioned and cross examined), the applicants failed to discharge the burden of proof to establish that direct provision had the negative effects alleged (see para. 5.3).
Article 3 ECHR (Inhuman and Degrading Treatment):
The court could not decide whether direct provision, and the experiences of this particular applicant, constituted inhuman and degrading treatment, prohibited by Article 3 ECHR. However, given the high threshold set down as regards reception conditions (or total lack thereof) in Greece, the Court would need to assess the evidence of the applicants and respondents in an oral hearing. The examples presented by the applicant are in ?stark contrast? to reception conditions that the European Court of Human Rights were assessing in the case of M.S.S v Belgium and Greece. As evidence from the applicant could not be tested in this case, it is not possible to assess whether direct provision is a breach of Article 3 ECHR. The applicant has to prove that direct provision humiliates and debases her in a manner that shows a complete lack of respect for human dignity. The respondents have vigiourously denied this.
Article 8 ECHR (Private and Family Life):
Communal living in direct provision does impair the right to enjoy family life. However, the applicants? failed to prove in relation this this case, that this was so.
As regards the ?abnormal circumstances? that the child applicant is being reared in, Mac Eochaidh J. stated (at para. 9.19 of his decision) that although instinctively he felt direct provision is not an ideal environment for rearing a child, due to failure of proof from the applicants, he could not find a breach of ECHR and/or corollary Constitutional rights.
Length of time in Direct Provision
The applicant, through no fault of her own, has spent 2 out of 3 and a half years in direct provision (due to the significant backlog in deciding whether the applicant was entitled to subsidiary protection). While Mac Eoichaidh J. opined (paras 10.8-10.9):
The applicants sought a declaration that the weekly direct provision allowance payment is unlawful due to the lack of any statutory basis for the payment and is a ?manipulation? of the supplementary welfare allowance system (see my analysis of this issue, pre this decision, here). The applicants? argued that due to Section 246(7) of the Social Welfare Consolidation Act 2005 (as amended). Mac Eochaidh J. rejected this argument. The judge found that as a matter of law, the direct provision payment (?19.10 per week per adult/ ?9.60 per week per child) was not a social welfare payment. While Direct Provision Allowance was classified as a supplementary welfare allowance payment for some years of Budget Estimates or Revised Estimates presented to the Oireachtas, this was not of any legal significance. The Oireachtas had to be aware that mainstream social welfare payments are not paid to protection applicants. Mac Eochaidh J. summarised his decision as follows (at para 13.20):
In any event, Mac Eochaidh J. stated that the applicant did not have legal standing to challenge the legality of the payments. Even if the applicants? were correct that direct provision allowance is outside the powers of the Minister for Social Protection,
Mac Eochaidh J. also noted (at para. 13.26) that direct provision allowance is the only social welfare payment that has not been increased since its inception in 2000. However, the proper place to pursue this argument and agitate for an increase is in the political arena.
The Executive (Government) are entitled to create a scheme on an extra legislative basis to support protection seekers. Even where such issues relate to the protection of fundamental rights, the Oireachtas have not legislated for reception conditions for protection applicants. Given the inactivity of the Oireachtas in this regard, nowhere in the Constitution is it suggested that the Oireachtas have to establish principles and policies before the Government exercise its executive powers. The Respondents (at para. 14.12) outlined 26 payments/schemes that do not have any legislative underpinning (including JobBridge, Back to School Allowances; Free Travel; School Meals etc.). Mac Eochaidh J. also pointed to the fact that for many decades national school education did not have a legislative underpinning. Mac Eochaidh J. held (at para 14.25):
Mac Eochaidh J. continued (at para. 14.40):
The Outstanding Questions
Mac Eochaidh J. did not make a decision on issues relating to arguments on the UN Convention on the Rights of the Child, something that was to be decided in a different case before the High Court this Wednesday, 19 November 2014 in the case of Dos Santos.
Mac Eochaidh J also adjourned the arguments regarding the challenge to the prohibition on employment for those seeking subsidiary protection, as there is another High Court challenge pending on this issue. The judge stated that
GuestPost - Fri Nov 14, 2014 11:42
We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala Around a month ago the Wall Street Journal published an article entitled ?The Anti-Vaccination Epidemic?(...)
We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala
Around a month ago the Wall Street Journal published an article entitled ?The Anti-Vaccination Epidemic? , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ?system? without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.
What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:
?I. It is the bounden duty of parliament to protect all the rights of man.
III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.?
Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ?conscientious objector? in British law, allowing parents who ?did not believe? in the effectiveness of immunisation to opt out.
Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.
Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ?best interests of the child?, Article 12 dictating that children should be provided ?the opportunity to be heard? and ?due weight? should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.
More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ?highest attainable standard of health?, they should not be deprived of their right of access to such health care services?, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ?at the best interests of the child?. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ?good life? grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ?evidence-based public health standards and good practices?, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ?best interests? apply both to individual children and ?children as a group?. This is of importance, since refusal to vaccinate one?s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children?s health is protected thanks to our ?herd immunity?. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.
Another legal argument invoked by parents is that compulsory vaccination violates their (and their children?s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ?could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.? Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents? rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children?s rights under the ECHR and the CRC.
This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.
One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children?s rights and children?s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.
Charles O'Mahony - Thu Nov 13, 2014 13:08
We are delighted to welcome this guest post from Amina Adanan who holds the EJ Phelan Fellow in International Law and is a Ph.D candidate at the Irish Centre for Human Rights, School of Law, NUI Galway. On 30 October last, the Constitutional Court of South Africa issued its decision in National Commissioner of the(...)
We are delighted to welcome this guest post from Amina Adanan who holds the EJ Phelan Fellow in International Law and is a Ph.D candidate at the Irish Centre for Human Rights, School of Law, NUI Galway.
On 30 October last, the Constitutional Court of South Africa issued its decision in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another (Zimbabwe Torture Docket Case). The judgment affirms that the South African Police Service (SAPS) has a duty to investigate crimes against humanity committed outside of South Africa, subject to certain restrictions.
The case concerns the application of universal jurisdiction in South Africa. Universal jurisdiction is the prosecution of a serious human rights abuse, where the crime is committed abroad, by foreigners, against foreigners. It is a type of extraterritorial jurisdiction that applies to piracy (on the High Seas), the Slave Trade, genocide, war crimes, crimes against humanity and torture. Serious human rights abuses are often orchestrated by the state apparatus, thus a prosecution in the territorial state may be unlikely. As such, universal jurisdiction is vital to ensure that abuses are prosecuted. The Implementation of the Rome Statute of the International Criminal Court Act No. 27 of 2002 (ICC Act) allows South African Courts to exercise universal jurisdiction over crimes against humanity.
Background to the case
In March 2007, the Zimbabwean Police, acting under the direction of ZANU PF (the then one party government) raided the headquarters of the main opposition party, the MDC. Some MDC supporters were detained and tortured by the Zimbabwean Police. The torture was committed as part of a wide-scale and systematic operation executed against the MDC and its supporters in the run up to the 2008 elections. The acts were committed in Zimbabwe, by Zimbabweans, against Zimbabweans.
Following the incident, the South African Litigation Centre (SALC), a prominent public interest NGO, investigated the matter. SALC gathered evidence and compiled a docket, which included medical reports of victims, along with interviews and affidavits from witnesses and victims. In March 2008, the docket was forwarded to the National Prosecuting Authority (NPA) for investigation. In June 2009, SALC received confirmation that SAPS would not investigate the alleged offences. Under the Constitution, it is the duty of the Police to investigate crime.
SALC and the Zimbabwe Exiles? Forum (ZEF) then applied to the High Court in Pretoria, seeking an order to have the decision reviewed. The application was made against the National Director of Public Prosecutions (NDPP), the Head of the Priority Crimes Litigation Unit of the NPA and the National Commissioner of SAPS. After the High Court found in favour of the applicants, the National Commissioner of SAPS and the NDPP appealed the High Court?s decision to the Supreme Court of Appeal of South Africa. In November 2013, the Supreme Court of Appeal found in favour of SALC and ZEF. Saidat Nakitto has provided an excellent analysis of the Supreme Court of Appeal decision.
The National Commissioner of SAPS then appealed the matter to the Constitutional Court of South Africa. Seven amicus curiae joined the proceedings, among them notable academics in human rights law and NGOs around the world, illustrating the importance of the case in the field of human rights.
The findings of the Constitutional Court
The Constitutional Court looked to whether SAPS had an obligation to carry out pre- trial investigations into international crimes committed extraterritorially, and if so, what circumstances trigger this duty.
First, the Constitutional Court noted the ?special place? of international law in South African law; reiterating, that the Constitution and national legislation must be interpreted in light of international law.
The Court then turned to look at Complementarity in the Rome Statute of the International Criminal Court. Article 17 of the Rome Statute (and its preamble) affirm that the ICC can only hear a case, where a state with jurisdiction over the offence is unable or unwilling to investigate or prosecute the crime. The ICC is complementary to national courts, when it comes to the prosecution of international crimes (genocide, war crimes and crimes against humanity). The ICC can exercise jurisdiction over international crimes that are committed on the territory of a state party, or by a national of a state party, or when a situation is referred to the Court from the UN Security Council. The Constitutional Court noted that a question arises as to states parties?s obligations to prosecute international crimes committed in the territory of a non-state party to the Rome Statute. Here the Court noted:
Zimbabwe is not a state party to the Rome Statute and the National Commissioner of SAPS did not dispute the unlikelihood of the torture being investigated in Zimbabwe.
The Court then turned to look at South Africa?s jurisdiction in respect of the crime of torture. The Court noted that torture is a crime to which jus cogens status attaches and from which no derogation is permitted. South Africa had incorporated the UN Convention Against Torture into domestic law. Jurisdiction over torture on the scale of a crime against humanity had been incorporated into domestic law in South Africa by the ICC Act itself. After examining the sources of international and national law, including regional instruments, the Constitutional Court concluded that South Africa is required (where appropriate) to exercise universal jurisdiction over crimes against humanity.
The ?connecting factors? in South Africa?s exercise of universal jurisdiction under the ICC Act
The Court recognised that there were certain ?connecting factors?, at least one of which must be present for an international crime to be prosecuted in South Africa. Section 4 (3) of the ICC Act, states that South African Courts have jurisdiction over international crimes committed outside of South Africa:
[A]ny person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if ?
In this instance, section 4(3)(c) was relied on. SAPS argued that because the accused persons were not present in South Africa, they were not under a duty to commence an investigation. (Notwithstanding that some of the accused Zimbabwean officials visited South Africa after the crimes were committed, and were not apprehended). The ICC Act itself is silent on whether the accused need be present in South Africa for the pre-trial investigation.
After noting the work of the Institut de Droit International and the content of the amicus curiae brief submitted by John Duggard and others, the Court stated that there was no international rule that the accused must be present for the pre- trial investigation. If not, investigations into crimes against humanity would be unlikely take place. The Constitutional Court did not dispute that the presence of the accused is required at a more advanced stage of proceedings.
Limitations on the exercise of universal jurisdiction by South Africa: subsidiarity and practicability
Looking first at subsidiarity, the Court found that an investigation may only commence where another state with jurisdiction over the crime (the territorial or state of nationality of the alleged perpetrator) is unable or unwilling to do so. The reason being, ?the principle of non- intervention in the affairs of another country must be observed?. Here, the Court borrows from the language of the principle of complementarity. The Court noted that it was unlikely that the crimes would be investigated by the Zimbabwean Police, given that six cabinet ministers were linked to the offence.
On the issue of practicability, the Court said that the South African authorities must consider if it is reasonable to carry out the investigation, in each particular case. A number of factors must be considered: (1) The likelihood of a prosecution; (2) If the accused persons are likely to enter South Africa, of their own accord, or via an extradition request; (3) The geographical location of the crime; (4) The likelihood of the accused being arrested; (5) The gathering of evidence; and (6) The nature and extent of resources required.
The Constitutional Court unanimously rejected the appeal and costs were awarded against the appellant. The Court highlighted that constitutional obligations must be carried out without delay, notwithstanding the considerable time that had lapsed since the torture had occurred. SAPS will now investigate the crime.
Points of note
There are a number of significant points that arise in this judgment. Firstly, the Rome Statute itself does not demand that states parties exercise universal jurisdiction. As stated above, the ICC has jurisdiction to hear cases relating to international crimes committed on the territory of a state party, or carried out by nationals of the states parties. States parties are obligated to incorporate these forms of jurisdiction into domestic law, at a minimum. Section 4(3) of the ICC Act does not include universal jurisdiction in express terms. The Constitutional Court interpreted section 4(3) as implying the exercise of universal jurisdiction by the South African authorities.
Second, the Constitutional Court was right to distinguish between the presence of the accused for the pre-trial investigation and the presence of the accused for the trial, as it did. State practice shows that many pre- trial investigations related to the exercise of universal jurisdiction begin without the presence of the accused in the forum state. The investigation in Spain, into crimes committed by General Augusto Pinochet during his reign in Chile, are perhaps the most famous example of this. In Belgium, investigations commenced into alleged international crimes committed by former US President George H. W. Bush, and former Israeli Prime Minister Ariel Sharon, without the presence of the accused.
Third, in the grand design that is modern universal jurisdiction, where the trend of states is to reduce the scope of universal jurisdiction, this judgment is refreshing. Moreover, it is an example of a non- European state taking steps to apply universal jurisdiction (which is usually exercised by European States). Since 2003, in Belgium, the national legislation on extraterritorial jurisdiction is restricted to the active and passive personality principles, or to accused persons or victims who are resident in the state. In Spain, the question of whether recent amendments the national legislation on universal jurisdiction conflict with Spain?s obligations in international law, is currently being explored by the Spanish Constitutional Court. One of the reasons for this trend is because the exercise of universal jurisdiction interferes with the forum state?s international relations. In the Zimbabwe Torture Docket Case, the Constitutional Court of South Africa did not give much attention to SAPS?s concern that the investigation would hamper South African- Zimbabwean relations. The Constitutional Court noted that inter-state tension is unavoidable in the application of universal jurisdiction.
Finally, it can also be said that this judgment is an example of how the principle of complementarity is supposed to work. As the Court noted, the primary responsibility of the prosecution of international crimes rests with the states parties. It may be the case that this judgment comes from a state with a particularly strong will when it comes to human rights. South Africa was the first African State to incorporate the Rome Statute into domestic law. This is an important judgment not only for South Africa, but for other states that exercise universal jurisdiction. It is a positive move towards preventing impunity for serious human rights abuses. Whether the judgment will appeal to other states will remain to be seen.
Case materials are available on the website of the South African Litigation Centre.
Yvonne Daly - Wed Nov 12, 2014 15:20
The 14th annual UCC Law Conference takes place on November 19th in the Aula Maxima at University College Cork. This is the only student-run professional law conference in Ireland and it is sponsored by William Fry. This year’s theme is “Human Trafficking – Modern Slavery in Ireland” and the speakers include: – Colm O?Dwyer BL(...)
The 14th annual UCC Law Conference takes place on November 19th in the Aula Maxima at University College Cork. This is the only student-run professional law conference in Ireland and it is sponsored by William Fry. This year’s theme is “Human Trafficking – Modern Slavery in Ireland” and the speakers include:
– Colm O?Dwyer BL – Victims of trafficking in the asylum/protection system.;
– Edel McGinley, Director of the Migrants Rights Centre on trafficking for labour exploitation, new trends in forced labour, criminal exploitation in cannabis production, the situation of potential victims in prison and new preventative measures to protect workers in the homes of diplomats.
– A former victim of forced labour discussing his/her experience and the realities of forced labour in Ireland.
– Aidan McQuade the Director of Anti-Slavery International on trafficking in the International Sphere;
– Mick Quinn of the Anti-Human Trafficking Unit from the Department of Justice on how Ireland is monitoring the issue of trafficking on our shores.
– Héilean Rosenstock-Armie,Immigrant Council of Ireland, on the issue of sex trafficking in Ireland and potential procedural reforms.
The organisers say that the aim of this year?s conference is to draw as much attention as possible to the issue of forced labour and trafficking in Ireland, and to open up an academic discussion on procedural reform and the efficiency of our approach. They contend that the issue of human trafficking is kept in the dark, and say that it is time for the student body to bring to light the fact that his problem in fact exists closer to home than one might imagine.
The conference will act as a forum for discussion regarding a legal issue at the forefront of both Irish and International law, and will be attended mainly by practitioners, academics, and students. The organisers hope that attendees will be inspired to do something about human trafficking in Ireland as a result of the conference.
All are welcome to attend the conference, though prior registration is required by emailing email@example.com. The registration cost is ?40 (this can be paid on the day) and the event carries 4 CPD points as recognised by the Law Society of Ireland. Registration takes place between 8.45am and 9.20am with the event to begin at 9.30am sharp.
For more information see here.
Liam Thornton - Wed Nov 12, 2014 12:41
On Friday, 14th November 2014, the High Court will deliver its decision on the challenge to the direct provision system in the case of C.A and T.A. (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland (Record No. 2013/751/JR). For background on this case, see here and here. Whatever the(...)
On Friday, 14th November 2014, the High Court will deliver its decision on the challenge to the direct provision system in the case of C.A and T.A. (a minor) v Minister for Justice and Equality, Minister for Social Protection, the Attorney General and Ireland (Record No. 2013/751/JR). For background on this case, see here and here. Whatever the outcome of this case, mobilisation efforts to protest against the system will continue, see details of the protest to be held on Universal Children’s Day, 20 November, here. There have been significant number of protests over the last while at various direct provision centres organised by asylum seekers and their supporters. TV3’s documentary on The Irish Asylum Seeker Scandal heard first hand from asylum seekers significantly affected by years of living in direct provision.
Earlier this week the Working Group on the Protection and Direct Provision System met for the first time. Concerns have been raised as regards the composition of the group, and in particular the absence of representation from individuals currently in the direct provision system (see here and here). The terms of reference for the working group are narrow. Reference to ensuring the dignity of the person is welcome. There is no mention of legal obligations upon this State to provide for asylum seekers, in particular the clear obligation under the UN Convention on the Rights of the Child, for those under 18 seeking asylum (or are part of families seeking asylum), that there can be no differentiation as regards rights entitlements as compared to citizen/resident children in Ireland. The right to work for asylum seekers is not specifically mentioned. The precise impact that the Working Group can have on new legislation putting in place a single protection procedure, when this Single Protection Bill is to be published in January 2015 is unclear (unless the Working Group will get a draft of this legislation before formal publication for comment and review). The Working Group will not deliver its final report until April 2015 (the 15th anniversary of direct provision). It is also not clear whether the working methods of the Working Group will allow for submissions, meetings and discussions with asylum seekers to discuss their concerns and experiences in the direct provision system.
Given that it is well over one year since the Northern Ireland High Court has refused to return a family to direct provision in the Republic of Ireland, it remains to be seen whether changes (if any) to the direct provision system will be substantial or merely cosmetic. Even before the Working Group has had an opportunity to consider the direct provision system it has already been made clear by Minister of State, Aodhán Ó Ríordáin T.D. that direct provision will not be abolished. Minister Ó Ríordáin has stated: