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Irish Left Review
Joined up thinking for the Irish Left

offsite link Time for an Honest Conversation Fri Feb 12, 2016 15:13 | Michael Taft

offsite link The Investment Deficit Fri Feb 12, 2016 12:42 | Michael Taft

offsite link In Praise of Ungovernability Fri Feb 12, 2016 11:23 | Laurence Cox

offsite link Book Launch: Margaretta D?Arcy?s Memoir, Ireland?s Guantanamo Granny Thu Feb 11, 2016 13:09 | Irish Left Review

offsite link A Costly Health Service? Thu Feb 11, 2016 12:51 | Michael Taft

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Spirit of Contradiction

offsite link Wailings about Left Unity Sat Feb 13, 2016 01:13 | James O'Brien

offsite link The Bern Manifesto: Why I am Voting for Bernie Sanders Wed Jan 27, 2016 23:59 | Jerome Nikolai Warren

offsite link Kautsky – The crisis of capitalism and the shortening of working time Mon Nov 09, 2015 22:34 | James O'Brien

offsite link How to do better things with words Fri Oct 23, 2015 07:38 | modulus

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Spirit of Contradiction >>

Public Inquiry
Interested in maladministration. Estd. 2005

offsite link Editing letters to the Irish Times

offsite link Stephen Collins: An enemy of my country Anthony

offsite link Elaine Byrne: Suffering from chronic naivety Anthony

offsite link Free speech under state attack in Ireland Anthony

offsite link Denis O’Brien: Are the sharks moving in for the kill? Anthony

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NAMA Wine Lake

offsite link Farewell from NWL Sun May 19, 2013 14:00 | namawinelake

offsite link Happy 70th Birthday, Michael Sun May 19, 2013 14:00 | namawinelake

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NAMA Wine Lake >>

GuestPost - Fri Feb 12, 2016 11:47
?The fourth is freedom from fear?which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor?anywhere in the world.? ? Franklin Delano Roosevelt I am delighted, as part of the […]

?The fourth is freedom from fear?which, translated into world terms, means a world-wide reduction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor?anywhere in the world.?

? Franklin Delano Roosevelt

I am delighted, as part of the University of Iowa Centre for Human Rights? 75th anniversary celebration of the Four Freedoms Speech, to consider Roosevelt?s fourth and final freedom ? freedom from fear. David Keane pondered whether the four freedoms ought to be considered in terms of hierarchy and he suggested that freedom of speech might come out tops ? not just because it is the first of the freedoms but because freedom of speech is a ?gateway? right. This may be so but freedom from fear outranks the others in its own ways. On the one hand, freedom from fear was the most ambitious of Roosevelt?s four (although ?freedom from want? puts up quite the challenge). Freedom from fear represented the aspiration of an international prohibition on aggression or, indeed, the ?human right to peace?[1]. There is though another way of reading Roosevelt?s fourth freedom. Freedom from fear was in fact the leitmotif of the entire speech. Fear is invoked ambiguously ? equivocally, even ? both as a provocation, to rally public support and to justify American intervention in the war, and as a promise, of future freedom. In other words, Roosevelt was telling the American public ? in order to enjoy this freedom, in order to secure freedom from fear, we must go to war. From a rhetorical perspective, by neatly and rhythmically rounding off the four freedoms, freedom from fear represented the alliterative crowning glory of Roosevelt?s speech and his call to intervention.

As Shane Darcy and Brian Farrell have noted, Roosevelt?s four freedoms sowed the seeds for the post-war international order and also played a sizeable role in the development of the international system of human rights. So where, beyond the preamble of the Universal Declaration of Human Rights, does freedom from fear feature in this international system? What does freedom from fear even mean? And, perhaps more importantly, how are we doing in the achievement of this freedom?

Freedom from aggression is not as aurally evocative but that is essentially what Roosevelt meant by freedom from fear. His vision, on a surface reading of the speech, was an end to aggressive wars precipitated by an end to the production of arms. The Atlantic Charter, the joint declaration signed by Churchill and Roosevelt in Newfoundland in August 1941, articulating their war aims and their vision of a post-war international order, incorporated, and elaborated on, the idea of freedom from fear. Principle six envisaged: ??after the final destruction of the Nazi tyranny ? a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all lands may live out their lives in freedom from fear and want?. Principle eight contemplated a ban on the use of force in international relations and the disarmament of aggressive nations: ?? all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers ?. pending the establishment of a wider and permanent system of general security ? the disarmament of such nations is essential.?

The United Nations Charter ? conceived of and drafted in the throes of the war ? codifies a system of collective security, underpinned by the infamous ban, under Art 2(4), on the threat or use of force in international relations. The Charter specifies exceptions to this ban. Under article 42, the Security Council is authorised to take measures ?as may be necessary to restore international peace and security?. Under article 51, Member states are endowed with ?the inherent right of individual or collective self-defense if an armed attack occurs against a Member?. More recently, in 2010, following a fraught process, the Rome Statute of the permanent International Criminal Court (established in 1998) was amended to include the crime of aggression. The Rome Statute defines in detail an act of aggression as a manifest violation of the UN Charter and provides a jurisdictional regime for the prosecution of that crime. The limitations to and the challenges inherent in the UN Charter use of force regime are well known. These range from interpretative indeterminacy around the scope and meaning of ?armed attack? and of self-defense to endless debates around the legality or propriety of humanitarian intervention. The permanent membership of the Security Council, invested as it is with the authority to determine threats to international peace and security, exacerbates the legal and political contestation. For interpretative and geopolitical reasons, it is easy to see that the prosecution of the crime of aggression will be a challenge.

Do, then, the UN Charter and the crime of aggression fulfil Roosevelt?s aspiration of freedom from fear? Certainly, Roosevelt would have applauded the international prohibition and criminalisation of acts of aggression. He did not, however, only advocate a legislative ban on aggression. He saw a direct link between the production of arms and the use of force. His vision was, arguably, not just for a ban on the use of force but for a ban on the production of weapons in order to deter or prevent aggression. The United Nations does promote nuclear disarmament and non-proliferation as well as the disarmament of biological, chemical and conventional weapons. The Office for Disarmament Affairs admits to some of the challenges it faces ? political and technical. But let?s be clear, the biggest challenge to disarmament is economic. Weapons are big business.

The disarmament paradox was explicit in Roosevelt?s speech. He asked Congress outright for the authority to manufacture additional munitions and war supplies for the Allies and for American defense. There may be little doubt today about the justification for this supply of ?ships, planes, tanks, guns? or the propriety of American involvement in the war. But this is the point ? just war is always in the eye of the beholder. The beholder is rarely the aggressor. Weapons? manufacture is always for defense.  Roosevelt?s speech was not a call to global disarmament nor was it an absolute appeal to end aggression ? it was an appeal to end ?their? access to arms, their aggression. From a political, military or foreign policy perspective, this, for many, is not controversial ? of course a nation will justify its own defense and its resort to war. However, this speech is memorialised for the four freedoms that Roosevelt envisaged. Those four freedoms may now be reflected in international human rights law. The strategy of Roosevelt?s speech is also an enduring one, however. Just as in 1941, today, freedoms and rights are instrumentalised, and reflected, in justifications for armed conflict, self-defense and military/humanitarian intervention.

Freedom from fear was one of the ?ends? of Roosevelt?s policy. But fear was also one of his means to achieve this ?end?. His speech opened with the spectre of the unprecedented threat ? ?No previous time has American security been as seriously threatened from without as it is today?. It culminated in an invocation of the ?supremacy of human rights everywhere?. To bridge that gap, it was necessary to fight for rights, literally.

Without a doubt, Roosevelt?s words had impact. But freedom from fear, and what it represents, was then, and remains, a slippery concept.

Michelle Farrell is a senior lecturer in law at the School of Law and Social Justice, University of Liverpool. She is also currently a Fellow in Residence in the Centre for Human Rights and Legal Pluralis, University of McGill.

[1] See William A. Schabas, ?Freedom from Fear and the human right to peace? in David Keane and Yvonne McDermott, The Challenge of Human Rights: Past, Present and Future (Edward Elgar, 2012) 36 for a discussion of freedom from fear as the forgotten human right to peace.

 

GuestPost - Fri Feb 12, 2016 11:46
?The third is freedom from want . . . everywhere in the world.? ? Franklin Delano Roosevelt The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom […]

?The third is freedom from want . . . everywhere in the world.?

? Franklin Delano Roosevelt

The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom of speech and freedom of religion were two classic limits on the power of government ? what we often call ?negative? rights, or civil and political rights. Such rights were at the core of the American constitutional order, enshrined in the Bill of Rights.

As Roosevelt continued his speech, he identified two additional Freedoms of a very different character. The third of the Four Freedoms was ?freedom from want ? which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants ? everywhere in the world.? This was followed by freedom from fear. Unlike the first two Freedoms, these did not limit government interference with the individual; rather, they contemplated an affirmative government obligation to deliver these societal necessities to its citizens.

Although not rooted in the Bill of Rights in the same way as the previous Freedoms, the freedom from want would not have appeared as an entirely novel concept. It evoked the legislative development of a social safety net as part of Roosevelt?s domestic New Deal. Earlier in the speech, the President pointed to economic security as one of the foundations of a healthy democracy. He called for ?Equality of opportunity for youth and others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few.? The rise of European fascism in the 1930s was at least partially a result of the dire economic conditions that prevailed during the early years of the Depression. Freedom from want, then, was not just an altruistic goal. It was also a strategy aimed at ensuring a stable and peaceful post-war world.

Indeed, when the Universal Declaration of Human Rights was adopted by the United Natiosl General Assembly on December 10, 1948, it proclaimed that ?recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world.? Among the inalienable rights enumerated in the Universal Declaration were the right to social security (Ar. 22); the right to work (Art. 23); and the right to an adequate standard of living, ?including food, clothing, housing, and medical care? (Art. 25).

While the freedom from want was articulated in these and other articles of the Universal Declaration, the Declaration itself was framed as being a ?common standard of achievement,? rather than a binding legal document. Thus, the question of how to interpret and enforce these principles did not carry immediate urgency. As the human rights system matured, however, such issues became troublesome. Was a state truly under an obligation to guarantee jobs for all? What level of housing or medical care was ?adequate?? Would these answers be viewed differently depending whether a state was poor or wealthy? Moreover, the discourse became colored by the politics of the cold war, as Soviet bloc states frequently advocated for these economic and social rights while Western states championed civil and political rights.

Ultimately, the effort to create a binding human rights framework was bifurcated, and two treaties emerged from the General Assembly in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The split has been viewed by many as unfortunate because it can lead to ?prioritization? of rights (usually the view that the rights in the former treaty take priority over the latter). In any event, the two Covenants frame state obligations differently. Whereas the Covenant on Civil and Political Rights simply directs states to respect and ensure those rights, the Covenant on Economic, Social, and Cultural Rights takes a different approach. It requires that each signatory ?undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure.? This language recognizes that, unlike, for example, the prohibition against torture, many economic and social rights cannot be immediately realized and are dependent on a state?s resources.

Following adoption of the Covenant there have been further attempts to clarify how freedom from want is to be understood and implemented. In 1999, for example, the U.N. Committee on Economic, Social, and Cultural Rights adopted a ?general comment? on the right to food. It explained that the right to food meant the availability of food in a quantity and quality sufficient to satisfy the dietary and cultural needs of individuals, in a sustainable manner. The Committee went on to identify three levels of state obligation: first, a state cannot prevent existing access to food; second, it must protect against interference with an individual?s access by third parties; third, it must engage in activities intended to strengthen access to and production of food; and fourth, it must provide food if an individual is unable to secure food for reasons beyond their control.

In turn, these obligations beg the question of enforcement. It is not unusual for a court to find a person has been unlawfully detained and order them released from jail, but the same judge may be much less comfortable determining whether a state has met its obligations under the right to an adequate standard of living. And if violation is found, how does the court compel a state to implement legislative policies and allocate resources to fulfil its obligations, particularly if the state does not have the financial resources to do so? These are difficult issues that reflect as much about the judiciary as about the nature of economic and social rights, although courts in countries like India and South Africa have shown that courts can address such issues.

Of course, the complexity of interpreting and enforcing economic and social rights highlights the very existence and growth of these rights. ?Freedom from want,? a principle articulated by an American president in 1941, has actually been incorporated into the international post-war order in the form of binding universal human rights. This, in itself, is quite remarkable.

Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa.

GuestPost - Fri Feb 12, 2016 11:45
?The second is freedom of every person to worship God in his own way ? everywhere in the world?. ? Franklin Delano Roosevelt. I am pleased to contribute a short essay to the University of Iowa Center of Human Rights? celebration of the ?Four Freedoms? speech, delivered by United States President Roosevelt in January 1941. […]

?The second is freedom of every person to worship God in his own way ? everywhere in the world?.

? Franklin Delano Roosevelt.

I am pleased to contribute a short essay to the University of Iowa Center of Human Rights? celebration of the ?Four Freedoms? speech, delivered by United States President Roosevelt in January 1941. Those working in this field are well aware that the speech itself and the context of the Second World War in which it was made gave significant impetus to important human rights developments, including the emergence of an international system aimed at protecting and promoting human rights. That system continues to evolve, to elaborate on the substance and meaning of human rights, and to identify where responsibility lies for ensuring respect for human rights.

In considering the second of the four freedoms referred to by Roosevelt in his address, ?the freedom of every person to worship God in his own way ? everywhere in the world?, it is instructive to look at how this right is elaborated upon in the Universal Declaration of Human Rights. Article 18 provides that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

But what if one?s religion and its manifestation harms the human rights of others? Today, there remain numerous examples of violations of rights and freedoms carried out in the name of religion. The International Covenant on Civil and Political Rights, which replicates the provision from the Universal Declaration, purposefully adds that freedom of religion might be subject to such limitations ?as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others?. The Universal Declaration states that nothing in the instrument can be taken as ?implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein?.

The tension that may arise between freedom of religion and the rights and freedoms of others came to the fore in a recent case from Northern Ireland. Gareth Lee took a successful claim against Asher?s Baking Company because of the refusal by the bakery to prepare a cake with a message in support of gay marriage. This constituted discrimination on the grounds of his sexual orientation and political opinion, according to Judge Brownlie of the Northern Ireland county court. According to the judge:

Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. [?] The defendants are entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them but, in accordance with the law, not to manifest them in the commercial sphere if it is contrary to the rights of others.

The case demonstrates how freedom of worship, as Roosevelt described it, can be problematic when the manifestation of one?s religion moves from the private individual sphere to the public, such as when conducting business. Religion and belief are of course not entirely private or closed affairs for many individuals and groups and public manifestations are a common and often intrinsic part of the exercise of religious freedom ?in community with others?. The Northern Ireland court drew the line, however, where such religious belief harmed the rights of others in the context of business activities. The bakery has appealed the decision.

The relationship between business and human rights has garnered considerable attention over the past decade at the United Nations. Business enterprises, in particular multinational corporations, have been the focus of concerted efforts which seek to ensure that they respect human rights throughout their operations. While this may seem a departure from the traditional State-centric approach of international human rights law, it is readily apparent today that human rights can be violated by the actions of so-called non-State actors. The United States is currently preparing a national implementation plan for the UN?s Guiding Principles on business and human rights, and in doing so, may need to grapple with the call for so-called ?conscience clauses? which would legally allow companies to refuse to provide services on the basis of religious belief.

In his Four Freedoms speech, Roosevelt had called for a concerted effort to meet the challenges being faced by the United States during the Second World War: ?A free nation has the right to expect full cooperation from all groups. A free nation has the right to look to the leaders of business, of labor, and of agriculture to take the lead in stimulating effort.? He was referring here to the necessity of increased arms production, while looking forward to a future of reduced armaments world wide. When the United Nations adopted the Universal Declaration of Human Rights in 1948, it similarly considered that ?every individual and every organ of society? had a role to play in promoting respect and securing the ?universal and effective recognition and observance? of human rights. Business enterprises can contribute to both the realisation or indeed the harming of human rights, much like States themselves.

Dr. Shane Darcy is a lecturer at the Irish Centre for Human Rights and the editor of the Business and Human Rights in Ireland blog.

GuestPost - Fri Feb 12, 2016 11:43
?The first is freedom of speech and expression ? everywhere in the world.? ? Franklin Delano Roosevelt. Should we think of the four freedoms in terms of a hierarchy? If so, then freedom of speech and expression comes top, as the first enumerated in Roosevelt?s speech, although the speech itself gives no indication beyond the […]

?The first is freedom of speech and expression ? everywhere in the world.?
? Franklin Delano Roosevelt.

Should we think of the four freedoms in terms of a hierarchy? If so, then freedom of speech and expression comes top, as the first enumerated in Roosevelt?s speech, although the speech itself gives no indication beyond the numbers that some of the freedoms are of more importance than others. In contemporary international human rights law, the United Nations emphasises that ?[a]ll human rights are universal, indivisible and interdependent and interrelated?, meaning that there is no ranking. For many however, freedom of speech and expression is a ?gateway right? essential to the realisation of all other rights. In other words, it is more important than many other rights for it underscores the conditions required for the realisation of a just domestic and world order essential to the articulation and implementation of global rights standards. Thus the 1789 French Declaration of the Rights of Man and of the Citizen, a precursor of the contemporary documents, described free communication of thoughts and opinions as ?one of the most precious rights? (Article 11).

It is understood that freedom of expression is not unlimited, but the nature of limitations on freedom of expression varies from a global perspective. Firstly, there is universal agreement on the need for a free press and other essential tools of expression. But differences arise in relation to the need to protect minorities and others from harmful speech, with marked differences in global perspectives. What is considered protected speech in the United States, usually the strongest advocate at the international stage, can be a crime in Europe ? both regions sharing common legal traditions. This may be amplified when contrasted with other regions of the world. The role of speech in the commission of atrocities, notably the Rwandan genocide, has played out in international criminal tribunals ? the so-called ?media trial? of Ferdinand Nahimana and others before the International Criminal Tribunal for Rwanda focused on the use of radio to instill hatred in listeners and foster genocidal intent. The role of similar propaganda in the conditioning of the German public to turn on its Jewish minority before the militarised genocide of the Holocaust was also a feature of the Nuremberg trials of Julius Streicher and others. These extreme situations have led to the understanding that incitement to violence or atrocities cannot be protected by freedom of expression and so it does not have the absolute status at the international level of, say, the prohibition on torture.

A more problematic situation was the so-called ?Danish cartoons? controversy, which lasted over a decade and culminated in the shootings one year ago in Paris of the Charlie-Hebdo cartoonists. The shootings were widely depicted as an assault on freedom of expression. There were two strands to the linking of freedom of expression and the cartoons. Firstly, that the cartoons are protected by the right to freedom of expression. Secondly, that the cartoons themselves somehow represented the right to freedom of expression; that they are symbolic of this right and by desisting from drawing them, the wider right itself was under threat. On the first, European cartoonists were not prosecuted for producing the cartoons, which leads to the conclusion that they were protected by freedom of expression (although the debate is a nuanced one given the existence of laws protecting racial and religious groups in Europe). The second is much more difficult ? why did these cartoons become invested with this symbolic defence of freedom of expression? And should they have been? There is no answer, but there has long been an acceptance in Europe that certain forms of speech are not tolerated. The European Court of Human Rights regularly upholds prosecutions of those who attack minorities through speech, in particular racial and religious groups. The attacks in Paris (both of them) should not impact the balancing act inherent in protecting European minorities while upholding freedom of expression and related values. These debates will continue and while everyone is agreed on the fundamental importance of freedom of expression, and its securing ?everywhere in the world?, blanket articulation of freedom of expression can also lack nuance essential in finding the right balance. There is an interesting story told about freedom of expression by the South African judge, Albie Sachs:

?I once shared a platform at a Book Fair in Sweden with the Nobel Prize winning Nigerian writer, Wole Soyinka, and Nadine Strossen, a distinguished leader of the American Civil Liberties Union, an extremely articulate and persuasive defender of free speech. Nadine spoke forcefully and fluently in favour of virtually unlimited free speech. Wole then started his response in a way that I found surprising and disconcerting. ?We have just been listening to a white middle-class woman from America?, he told us in his deep voice, ?giving us a typical lecture of the kind we can expect from a white middle-class American woman.? Nadine went pale. The audience was embarrassed. I felt a degree of shame that a great writer from my continent could dismiss her arguments in that shallow way. Wole paused for a moment, relaxed his stern posture, and added more quietly: ?You see, Nadine? These were just words. And they hurt, didn?t they???

Wole?s speech went on to describe the role of words, speakers and broadcasters in inciting massacres in his native northern Nigeria. Sachs continues:

?Normally I?m a great defender of free speech against any form of control. Normally I am concerned about censorship and thought control, about the importance in an open society of not suppressing alternative and unpopular views. But at the same time I believe that the right to say what I like, when I like, to whom I like, has to acknowledge the demeaning and destructive impact that words may have in a particular context? In sum, the libertarian right to speak your mind has to be balanced against profound constitutional values of shared citizenship.?

Sachs defended individuals being prosecuted under apartheid laws, one of the most repressive regimes of the UN era including widespread curtailment on freedom of expression, so his balanced understanding of freedom of expression is worth noting. This is particularly so given that, technically, we are realising ?freedom of speech and expression ? everywhere in the world?, with the internet age. Roosevelt?s first freedom may actually, to a certain extent, have arrived. Although the extent to which the marginalised partake in this freedom is also worth reflecting on, including connectivity gaps between men and women in particular in developing countries. Similarly many of the basics remain the same as they did in Roosevelt?s time, including protection for those who criticise, as journalists, bloggers, writers, human rights defenders or citizens, balanced with the need to ensure that minorities and other groups are afforded protections as well as access.

Dr. David Keane is Associate Professor in International Human Rights Law at Middlesex University, London, UK.

GuestPost - Fri Feb 12, 2016 11:42
We are very pleased to republish a series of short essays relating to the ‘Four Freedoms’ Statue of the Union by Roosevelt in January 1941. The essays were originally published by the University of Iowa Centre for Human Rights. Here they are introduced by Brian Farrell, the Centre’s associate director.  *  *  *  *  January 6, […]

We are very pleased to republish a series of short essays relating to the ‘Four Freedoms’ Statue of the Union by Roosevelt in January 1941. The essays were originally published by the University of Iowa Centre for Human Rights. Here they are introduced by Brian Farrell, the Centre’s associate director.

 *  *  *  *

 January 6, 2016, marks the seventy-fifth anniversary of a significant milestone in the recognition and protection of human rights. On January 6, 1941, with war raging in Europe and the Pacific, President Franklin Delano Roosevelt delivered his State of the Union address to Congress. Although the United States was not yet fighting in the Second World War, Roosevelt argued against isolationism, warning that ?the future and safety of our country and of our democracy are overwhelmingly involved in events far beyond our borders.? He went on to discuss the country?s policy of national defense, support for other democratic nations, and a just peace.

Near the conclusion of the speech, the President called for a post-war world founded upon ?four essential human freedoms.? The first of these was freedom of speech and expression for all people. The second was the freedom for every person to worship in his or her own way. The third was freedom from want, which Roosevelt described as meaning a healthy peacetime life for the inhabitants of every nation. The fourth was freedom from fear, which he defined as a reduction in armaments to prevent future aggression between nations. The President stressed that these four freedoms were not a vision for the distant future, but a concrete plan for a better world in the present generation, and the antithesis of the ?new order of tyranny which the dictators seek to create with the crash of a bomb.?

The speech was ? and is ? significant. It suggested that world peace and security were inextricably tied to the protection of fundamental rights of all. In protecting these rights, it also went beyond familiar American Constitutional liberties (freedom of speech; freedom of religion) to include positive rights. Freedom from want implied that all people had a right to secure basic necessities. Freedom from fear implied all people held a right to live in a safe world.

Roosevelt?s Four Freedoms became a blueprint for a post-war international order concerned not just about nations, but also about individuals. This emphasis on the dignity of every human being was, perhaps, unsurprising in light of the atrocities perpetrated during the war. Shortly after Germany?s surrender and Roosevelt?s death, delegates from the Allied nations met in San Francisco in the summer of 1945 to establish the United Nations, whose purposed included reaffirmation of ?faith in fundamental human rights.? To that end, the U.N. General Assembly promptly created a Commission on Human Rights to define, promote, and protect human rights.

The Commission, chaired by Eleanor Roosevelt, widow of the late President, worked to craft a statement of fundamental rights. On December 10, 1948, the U.N. General Assembly unanimously adopted the Universal Declaration of Human Rights, generally considered to be the foundation of the modern human rights system. Both the Declaration and the system that grew out of it were strongly influenced by Roosevelt?s Four Freedoms. The Declaration?s preamble reveals this, proclaiming that ?the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.?

Of course, these four essential freedoms have not existed in reality for many of people around the globe in the post-war years. Perhaps for this very reason, it is valuable for us to remind ourselves of their roots in the dark days of early 1941 as ideals for a secure and peaceful future.

Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa.

Ntina Tzouvala - Mon Feb 08, 2016 13:03
Dr Alan Greene  (http://i.imgur.com/jiRNdIf.jpg) General Election 2016 has, unsurprisingly, been dominated by the economy. However, an unlikely high-profile issue is that of the existence of the Special Criminal Court. Sinn Féin has thrust this issue into the lime-light with a pledge to repeal it in its manifesto. This has promptly led to attacks from other […]

Dr Alan Greene Four Courts

(http://i.imgur.com/jiRNdIf.jpg)?utm_source=rss&utm_medium=rss

General Election 2016 has, unsurprisingly, been dominated by the economy. However, an unlikely high-profile issue is that of the existence of the Special Criminal Court. Sinn Féin has thrust this issue into the lime-light with a pledge to repeal it in its manifesto. This has promptly led to attacks from other political parties, drawing attention to Sinn Féin?s connections with the IRA, and particularly the recent high-profile conviction of Thomas Murphy in the Special Criminal Court for tax-evasion. The level of this debate from both sides so far has, however, been wholly unsatisfactory from a human rights perspective. Gerry Adams? suggestion that the existence of gangland murders shows that the Special Criminal Court does not work is as equally frustrating as Brian Hayes asking Mary Lou Mc Donald as to whether she thinks that Thomas Murphy is a good republican.

The relevance of this debate is not, however, limited to Ireland. Parallels can be drawn between Ireland?s experience of the Special Criminal Court and French Constitutional amendments currently being debated by its parliament. In turn, this can illuminate the key human rights issues at the heart of both states? emergency responses.

France?s State of Emergency

Less than 72 hours after the attacks on Paris, French President François Hollande  declared that France was at war and stresed the need for sweeping new laws to confront the terrorist threat. Hollande followed this up with the declaration of a state of emergency which was subsequently extended by parliament for a further 3 months. The emergency powers triggered by this declaration date back to 1955 and France?s last declaration of a state of emergency to deal with Algeria?s struggle for independence. These powers ? outlined in legislation, not the French constitution ? give French police the power to search homes without a warrant, ban protests and other public gatherings, and can potentially ensure control of the press and radio; although these latter provisions have not yet been triggered.

Hollande has also signalled his intention to effect permanent constitutional changes. The motivation for this is to place France?s emergency powers on a constitutional footing, insulating them from the possibility of a successful legal challenge. While France already has a number of constitutional emergency powers in its constitution ? for example the militaristic state of siege ? these powers are extremely draconian. By placing the existing legislative powers on a constitutional foothold, Hollande is seeking to enable ?exceptional security measures without having to resort to the most drastic options currently in the Constitution.?

In principle this sounds like a positive development for human rights and the rule of law. The potential for the most draconian of measures that encroach severely on human rights is avoided while at the same time, the state?s response to terrorist threats can be beefed up.

 

Exceptional but not Drastic: The Special Criminal Court

This idea of having ?exceptional security measures without having resort to the most drastic options currently in the Constitution, is strikingly similar to what the drafters of the Irish Constitution had in mind when constructing the emergency powers system in this state. Ireland?s principal emergency powers contained in Article 28.3.3° of the Constitution essentially allow for the suspension of every article of the constitution in a ?time of war or armed rebellion?. The only restriction on this power is that the death penalty may not be re-introduced. Ireland was under a perpetual state of emergency from the outbreak of World War II in September 1939 until February 1995 following an IRA ceasefire.

The 1935 Constitution Review Committee upon whose recommendations the Constitution?s emergency powers are based upon also suggested a procedure for less serious emergencies to be included in the draft constitution. Such crises would be when ?the ordinary courts are inadequate to secure the effective administration of justice, and the preservation of public peace and order? and would permit the establishment of non-jury special courts. In this manner the need to declare a state of emergency and the extreme powers that would flow from this would be avoided.

While Ireland?s state of emergency remained in force from 1939-1995, in practice, no emergency legislation was actually on the statute books for much of this time. In contrast, the special courts clause contained in Article 38.3.1° of the Irish Constitution has resulted in the Special Criminal Court becoming a permanent feature on the Irish legal landscape. Indeed, its role has expanded to not only deal with terrorism-related offences but with organised crime. Minister for Justice Frances Fitzgerald also recently agreed to establish a new Special Criminal Court in order to alleviate the backlog in the existing system. In a similar pattern of normalising exceptional powers, the French authorities have already used their new emergency powers, not in the fight against suspected ISIS terrorists, but to place climate change protestors under house arrest during the Paris Climate Summit in December.

A declaration of a state of emergency and the requisite powers that flow from this are serious and present a profound challenge for human rights and the rule of law. Emergencies, however, may also protect human rights by quarantining exceptional powers to exceptional times; thus preventing them from seeping into the ordinary, everyday legal system. Divorcing ?less-exceptional? measures from the more extreme measures dilutes the stigma attached to them and increases the propensity for these ?less-exceptional? measures to become normalised and permanent. The permanent nature of the Special Criminal Court in Ireland is a testament to this. The current debate as to the continued existence of the Special Criminal Court has, however, been frustrating, ignoring these key concerns and instead focusing on cheap attacks or questionable reasoning.

The Challenge of Terrorism

It is not hard to imagine that a similar situation to Ireland?s Special Criminal Court will arise in France. Hollande has labelled the existing constitutional regime for a state of emergency and state of siege unsuitable for the fight against ISIS. They were designed for a different time and a different type of enemy. Thus while Hollande may have declared ?war? on ISIS and subsequently ordered airstrikes on the Islamic state and sought a UN Security Council resolution authorising ?all necessary measures in compliance with international law? to tackle ISIS in Syria and Iraq, he nevertheless views this war as qualitatively different from those France has waged in the past.

Declaring war on something implies that the solution is military. It also implies that it is temporary. The constitutional changes proposed by Hollande are, however, to the criminal justice sphere and police powers. Terrorism thus blurs the lines between war and crime. Crime, unlike war, is viewed as a permanent threat that we must live with every day. Counter-terrorist laws therefore are framed as being necessary in order to confront a threat of great magnitude, akin to war; however, they are also framed as being a necessarily permanent change to confront a permanent threat akin to criminality. It is because of this that many of the counter-terrorist measures we?ve seen enacted around the world in the aftermath of 9/11, and indeed the Irish Special Criminal Court are permanent.

A rush to draft laws in the aftermath of a serious crisis, where emotions run high, when people are afraid, and when the temptation to over-react is at its greatest must be resisted. This danger becomes even more heightened when the legal changes are to the permanent constitution of a state. France would do well to heed the lessons from Ireland.

Dr Alan Greene is a Lecturer in Law at Durham Law School and Co-Convenor of the Durham Human Rights Centre. His research focuses on states of emergency, counter-terrorism, and human rights. He tweets @DrAlanGreene

Sinead Ring - Thu Feb 04, 2016 06:00
We are delighted to welcome this guest post from Deirdre Malone, Director of the Irish Penal Reform Trust. The Trust recently launched a report on the experiences of LGBT people in prison in Ireland.  On 22 May 2015 I stood in the yard of Dublin Castle with my own brand new husband and watched the whooping […]

We are delighted to welcome this guest post from Deirdre Malone, Director of the Irish Penal Reform Trust. The Trust recently launched a report on the experiences of LGBT people in prison in Ireland. 

IPRT

On 22 May 2015 I stood in the yard of Dublin Castle with my own brand new husband and watched the whooping victory of equality over discrimination. As happy newlyweds ourselves, we felt the profound importance of the occasion deeply. We saw Ireland shedding her old identity, becoming something new and brave and proud. On that day, victory felt swift and definitive. In reality it was the culmination of a decade of tenacious work and thousands of brave conversations. It was a challenge to a social system that once felt monolithic, intractable and inevitable. It represented a final blow of years of steady chipping at the hard crust of institutionalized inequality. But I wondered, were LGBT people in prison celebrating too on that day? Would they feel safe to do so?

While for those who work in the NGO sector, 22nd May 2015 was a jolting, joyful reminder that monumental change is indeed possible, the 33rd Amendment did not mark the end of homophobia, harassment or discrimination of LGBT people. That is doubly true for lesbian, gay, bisexual and transgender people who are in prison. LGBT prisoners form a ?twice marginalized? population, falling outside of the ?mainstream? of LGBT community organizing and support services but also hidden and largely overlooked in terms of current prison policy.

International research reveals that homophobia is often amplified in male prisons as a result of a culture of ?hyper-masculinity? and the traditional hierarchical structure which prevails. Transgender prisoners, particularly women, face disproportionately high instances and severity of violence and discrimination, both in and out of prison. They are not easily accommodated within the strict male/female structure of most prisons and may also experience violence and voyeurism in the context of prison showers or toilets ? a particular concern in Ireland where 45% of prisoners are still required to use the toilet in the presence of another.

LGBT prisoners are also particularly at risk of experiences of discrimination, violence, sexual coercion and verbal harassment. Putting up a front, threatening or even engaging in violence in order to avoid being a victim of abuse is seen as something necessary within the prison environment

Of course, issues of homophobia, transphobia and the wider culture of heteronormativity also affect LGBT prison staff who also have experiences of homophobia, including being the targets of abuse by prisoners. The Irish Prison Service currently participates in the GLEN Diversity Champions programme through the ?Inside Out? network for LGBT prison staff but to date there has been no research or policy response addressing the specific needs and experiences of LGBT prisoners.

General good practice measures for safer prisons such as single cell accommodation as standard would help. It is common in many jurisdictions for ?at risk prisoners? and LGBT prisoners especially, to be placed in protective custody to safeguard them from victimisation. However in practice conditions in protective segregation are often identical to conditions for prisoners placed in segregation for disciplinary reasons thus breaching fundamental rights principles. This can lead to longer term issues including mental health difficulties caused by the effects of isolation and more limited access to services. It is vital therefore that violent cultures and opportunities for abuse are targeted through the education of prison populations, training of staff, and effective independent complaints procedures. Further research is also needed in the areas of sexual health and behaviours in prison, the experiences of young LGBT people in prison and on the issue of sexual violence and coercion and their prevalence within the prison context.

For many years now, the Irish Penal Reform Trust have been examining and listening to the experiences of diverse vulnerable groups in prison, including Travellers, women, children and young people, and immigration detainees. The recent passage of the Irish Human Rights and Equality Commission Act 2014 sets out the positive duties of public bodies to eliminate discrimination, promote equality and protect human rights, and should act as a catalyst to address this area which has been neglected to date. We also hope that the result of the recent same-sex marriage referendum and the passage of the Gender Recognition Act 2015 will provide further impetus for reform to ensure that no LGBT person, wherever they might be, is left behind.

All of this must be understood in the wider context of overuse of imprisonment generally, and the ineffectiveness of the idea of retribution in challenging the conditions which are at the root of most punished crime ? poverty, unemployment, homelessness, mental illness, addiction, desperation. The reality is that prison warehouses human misery, and by doing so, compounds it. It takes courage to challenge the status quo, but in every generation it is those that do who will also see the rewards of that courage. A challenge to the overuse of prison would lead to a more progressive, more effective, more humane, evidence-led criminal justice system ? something which ultimately benefits us all.

Deirdre Malone is Executive Director of the Irish Penal Reform Trust www.iprt.ie?utm_source=rss&utm_medium=rss

The IPRT report ?Out on the Inside? was launched on 2 February 2016 at Wood Quay Venue, Dublin on 2 February 2016. It is available to download here

Think this work is important? Join or donate to IPRT here

 

 

Liam Thornton - Wed Jan 27, 2016 08:46
The A&L Goodbody and Irish Refugee Council Asylum Law Award 2016 provides UCD students with the opportunity to gain invaluable legal expertise before applying for a career in law. Put your legal drafting and advocacy skills to use in our case study and gain an opportunity to work with the Irish Refugee Council and assist […]

Asylum2016header1The A&L Goodbody and Irish Refugee Council Asylum Law Award 2016 provides UCD students with the opportunity to gain invaluable legal expertise before applying for a career in law. Put your legal drafting and advocacy skills to use in our case study and gain an opportunity to work with the Irish Refugee Council and assist individuals who are seeking refugee status.

The Task

Your task is to review a case study and draft a written legal submission of no more than 2,500 words to the Office of the Refugee Applications Commissioner in support of your client’s application for refugee status pursuant to the Refugee Act, 1996 (as amended). You can download the entry pack, which includes the assigned problem question here.

The Prize

An internship: A four-week internship with the Irish Refugee Council, giving you exposure to real life cases and a first step in your legal career.

?2,000 in cash: Towards your educational fees – or that college loan!

The Judging Panel

Your entry will be reviewed by a judging panel made up of the following industry professionals:

Brian Collins, Senior Solicitor, Irish Refugee Council

Liam Thornton, Human Rights Lecturer, University College Dublin

Eamonn Conlon, Partner and Head of Corporate Responsibility, A&L Goodbody

To enter the competition, please send your submission to UCDLawAward@algoodbody.com by midnight on Friday, 18th March 2016.

Special UCD lecture to help write your entry!

An Introduction to Irish Asylum Law” will take place on Tuesday 16th February from 6pm to 8pm in the William Fry Theatre, UCD Sutherland School of Law.

This introductory seminar on Irish asylum law may be of use to those interested in submitting an entry to the Asylum Law Award 2016. It may be helpful in relation to constructing a response to the case study as posed. This seminar, delivered by Dr Liam Thornton, UCD Sutherland School of Law, will explore:

The legal definition of refugee, including:

  1. What is a ?well-founded fear??;
  2. What is meant by the phrase ?persecution??;
  3. Exploration of the nexus grounds of particular relevance to the problem question; and
  4. Exclusion from refugee status.

All UCD students (law and non-law students) considering applying for the Asylum Law Award 2016 are welcome to attend this seminar.

Ntina Tzouvala - Fri Jan 15, 2016 11:43
Dr. Tomaso Ferrando This is the second post of the online symposium on the Paris Climate Agreement co-hosted by Law and Global Justice at Durham and Human Rights in Ireland. The first contribution by Julia Dehm can be found here: http://humanrights.ie/economic-rights/reflections-on-climate-action-in-...  .  December 12, 2015 will be remembered as the date when the Paris Agreement under […]

Dr. Tomaso Ferrando

This is the second post of the online symposium on the Paris Climate Agreement co-hosted by Law and Global Justice at Durham and Human Rights in Ireland. The first contribution by Julia Dehm can be found here: http://humanrights.ie/economic-rights/reflections-on-climate-action-in-...  . 

December 12, 2015 will be remembered as the date when the Paris Agreement under the United Nations Framework Convention on Climate Change (the Agreement) was adopted. However, the fact of identifying the Agreement with one date and of attributing it to one specific city are processes of intellectual simplification that overlook two of the most relevant aspects of COP21. On the one side, they divert the attention both from the ten days of diplomacy and blackmails that preceded the final euphoria and from the months of corporate and civil society lobbying governments on the draft text. On the other side, the idea of the Paris Agreement hides the territorial fragmentation of what could be called the Climate Change Complex (CCC) into multiple spaces across the metropolitan area, spanning from the entrenched pavilion of the negotiations to the open air gatherings that occurred in the streets and squares of the French capital.

Among the most interesting pieces of this multi-territorial complex there was the ?Espaces Generation Climat? (Climate Generation Areas -CGA), a 27,000m² collection of conference rooms, exhibitions areas, restaurants and relax areas that the UN erected in the immediate proximity to the United Nations conference center in Le Bourget. In the words of the UN, the CGA represented the first institutionalized attempt in the history of climate conference organization to provide an area for public gatherings, discussions and education.1 Moreover, its program and content were defined taking into consideration the comments and requests advanced by the 117 organizations that responded to a public consultation launched by the UN General Secretariat in December 2014 and closed on January 2015. Finally, the CGA was widely publicized as ?an international space for debates and exchanges linked to the ecological transition on the one hand and the discovery of solutions to address climate disruptions, provided by civil society, on the other.?2

This short comment is a reaction to my experience in the CGA and to my perceiving it as a moment of false inclusion that, like the final agreement concluded in Paris, noticed the existence of alternative paradigms but was fully embedded in and constructed around the reproduction of the dominant rhetoric about climate change.

A space (nominally) open to all

?Since they investigate the commitment of all generations,? it was claimed by the presentation of the CGA, ?these areas will be the part of the 2015 Paris Climate Conference site that is open to all. They seek to encourage debate on solutions to climate change.?3 However, anyone who tried to reach the venue would have immediately noticed the ?open to all? slogan being inaccurate.

First of all, it appears paradoxical to consider the space as ?open to all? interested in discussing climate change, if this space is located in the heart of the Global North, thousands of kilometers away from most of the people who are engage in a daily fight against climate change and whose participation would have been ? to say the least ? essential. And this is also true for the whole negotiations. I am sure the whole process would have looked very different, if the COP had been organized on the Kiribati Island, in Darfur or Chennai. Moreover, it is even harder to define ‘open’ a pavilion that was built within a closed and patrolled gated area, secured by fully geared military police and with x-ray and access gates controlled by airport security.4

Secondly, even those privileged ones who had the opportunity to be in Paris would have questioned openness and accessibility of the space, in particular if they did not have a car (and you would not believe how many people drove a car to reach a climate change forum) and had to spend more than one hour to reach the city of Le Bourget. As a consequence, the gas-alimented shuttle buses from the metro to the conference center (in some cases a hybrid bus in some cases not even so) were mainly filled with European and American climate change habitués, that is representatives of corporations and NGOs, journalists and a small niche of interested individuals who had the time and money to attend the events.

Finally, it would have been hard to meet inside the CGA the most committed environmental activists. In the days before the COP, in fact, the extension of the state of emergency and the assimilation of some environmental movements to terrorist groups ? at least in the way in which the police acted and the authority that it retained ? had led to the issuance of numerous measures that reduced the freedom of movement of those individuals who had been most involved in the organization of grass-roots movements and bottom-up realities in Paris and surroundings.5

However, the most troublesome problem with the CGA as a first historical attempt to open climate negotiations to the community was not represented by its being geographically and logistically distant from the most affected and the local citizenship. What was really interesting ? as I discuss in the next section- was to see how the form and content of the ?space for international debates and exchanges? reflected the final agreement in its being almost entirely co-opted by the interests of capital and powerful states, funded on the paradigm of technological solution and carbon sequestration, and open to some expressions of alternative visions only to the extent they did not exaggerate and could be easily silenced.

Islands of diversity in a sea of ?business as usual?

Since its adoption, the ‘Paris’ agreement has been the object of several critiques. People living on the islands and coasts that are mostly affected by climate change, indigenous communities who are in the at the forefront of climate devastation, and progressive civil society have underlined the non-binding nature of the text, the insufficiency of the intended nationally determined contributions, its pro-corporate orientation and its blind commitment to the false solutions of carbon trading and technological innovation. According to them, negotiators should have been more ambitious, respond to the needs of the most marginalized and vulnerable people, tackle the systemic roots of climate change and introduce a new global paradigm based on the needs of people (rather than those of countries) and on the idea of climate justice.

However, the shortcomings of the agreement should not come as a surprise. It would have been enough to spend few hours inside the Espaces Generation Climat and to skim through the almost three-hundred conferences and the names of their organizers to understand that the UN Climate Change Complex was not structured around the needs of the weakest and most affected. In particular, the way in which the public space of the CGA was organized and its intellectual content clearly revealed that the objective was to utilize the rhetoric of inclusion to legitimize the reproduction of the status quo. Some islands of paradigmatic diversity were allowed, but they were surrounded by a sea of intellectual homogeneity and market-based trajectories.

?Climate justice? appeared in the title of four conferences; the role of workers and just transition were discussed in five panels; two panels touched upon the link between meat production and greenhouse gases; indigenous people could be spot walking across the alleys in their traditional dresses and had two permanent gazebos; moreover, some NGOs organized pro-people and anti-corporate interests protests almost every day in ways that were visible to the press but never disruptive of whole Climate Change Complex. Around these few pockets of alternative, the ten days of CGA were occupied by the vision of transnational corporate groups (like Veolia and Suez talking about the future of water), the privatizing dreams of the International Chamber of Commerce (engaging with ’emerging solutions to drive private investments in climate resilience’), and the homogenizing vision of corporate social responsibility (Rainforest Alliance, Global Compact, and Marine Stewardship Council), reforestation, carbon sequestration, green growth and financialization of the environment (EcoVadis, OroVerde, Climate Economics, Proyecto GuateCarbon, Brazilian Institute of Research and Carbon Management, Carbon Tracker Initiative).

As if this was a ?climate change fair?, hostesses and stewards welcomed the visitors with fliers, articles on sale and gadgets, including a corporate-branded notebook made with 91% renewable paper (i.e. 9% not renewable and who knows how energy-intensive), the Paris COP21 Michelin guide (where the tires producer underlines the link between mobility and human development and indicates a ?36 euro meal a good value opportunity) and bars of ?The change chocolate?, a ?sweet reminder to support Climate Neutral Now and the biggest afforestation project ever? (as climate change had nothing to do with worldwide shipping and value chains ? including of cocoa -, reforestation was not infringing upon the rights of local communities, and planting trees was by its nature a good action). And for those who felt a little hungry or thirsty (but not environmentally concerned) non-certified and non-geographically identified meat-based meals were available in the Place de La Republique restaurant or at the hamburgers truck, together with Coca Cola cans and bottled water. A little worried about the negative implications of livestock production and commodified water, the Marine Stewardship Council (MSC) logo would be there to get rid of your guilty feelings, while you eat fish and chips right next to a stand that is denouncing the depletion of seas and of marine resources,6 and it would only cost you one Euro to borrow a COP21 cup and drink from the few public fountains disseminated in the pavilion. ?The first institutionalized attempt in the history of climate conference organization to provide an area for public gatherings, discussions and education? was, therefore, an attempt to impose and legitimize the same paradigmatic framework that would characterize the final agreement.

Noticed?but irrelevant

Reading the 131 pages of the draft decision, preamble and text adopted by the COP21, the term climate justice is mentioned only once, and towards the end of the preamble. There, the 196 countries agreed to notice ?the importance for some of the concept of ?climate justice.?7 A couple of paragraphs later, the preamble concludes with the recognition ?that sustainable lifestyles and sustainable patterns of consumption and production, with developed country Parties taking the lead, play an important role in addressing climate change.?8

The negotiators that concluded the ?world’s greatest diplomatic success? – according to The Guardian-9 acknowledged the anti-redistributive implications of climate change, the intrinsic connection between global capitalism and global warming and the need for a radical change of the worldwide economic structure, but considered them irrelevant in defining the way forward. Similarly, the ‘open to all’ space of the CGA recognized the existence of promoters and supporters of climate justice and alternative visions, but embedded them in a context that was based on opposite premises and objectives. Dissent and alternative visions were not ignored, but noticed and absorbed, both in the text adopted by 196 countries and in the space provided for public engagement with the roots and solutions for climate change.

However, the lack of ambition and the impasse that characterized both the COP21 and the Espaces Generation Climat were transformed into energy and motivation by the thousands of people who crowded the streets and squares of Paris. In particular on December 12th, the day when the agreement was concluded, peasants, indigenous communities, anti-colonial movements, large NGOs and common citizens defied the state of emergency to manifest their dissent and claim for respect, dignity and a binding commitment to the 1.5 degrees threshold. They recognized the urgency and the irreversible pattern of climate change and challenged governments to keep fossil fuels in the ground, decarbonize, abandon nuclear energy, support agroecology, assume responsibilities for the loss and damages of the past and do everything possible to undertake a just transition and create a better future.

Both the agreement and the Espaces Generation Climate reveal the monolithic, inadequate, and homogenizing nature of institutionalized spaces of engagement with climate change. However, their limits and shortcomings provided the energy and the disillusion required to build new spaces for dialog, alternative platforms for participation, and think of more effective forms of resistance. The hope is that, from now on, global action for climate change will not be defined by the voices coming from above, but by those coming from below. As a matter of fact, a systemic and real transformation will only happen when justice, dignity, equality and the lives of marginalized and excluded will not be treated as trivialized tokens anymore, but the founding pillars of the new global agenda.

Dr Tomaso Ferrando , Warwick Law School

1 UN Conference on Climate Change ?Climate Generations Areas?, available at <http://www.cop21.gouv.fr/en/les-espaces-generations-climat/>.?utm_sour...

2Ibid.

3 Ibid.

4 The attacks that took place in Paris on November 13th, 2015 may explain part of the security measures adopted. However, the decision to hold the meeting outside the city center and within a gated perimeter was taken long before those events.

5 See e.g. Aurelien Bouayad, L?écologisme est-il un terrorisme?, Le Huffington Post, January 12, 2015, available at <http://www.huffingtonpost.fr/aurelien-bouayad/lecologisme-estil-un-terror... Umberto Bacchi, COP21: France uses Paris attacks? state of emergency to detain environmental protesters, International Business Time,

6MSC was funded in 1996 by the WWF and Unilever and became independent in 1999. In the last years, the program has been widely criticized by Greenpeace and other environmental groups for its low standards, its governance structure and the certification criteria. See Greenpeace, Assessment of the Marine Stewardship Council (MSC) Fisheries Certification Programme , available at http://www.greenpeace.org/international/Global/international/planet-2/report/...

7See the preamble of the United Nations Framework Convention on Climate Change (United Nations, Conference of the Parties, Twenty-first session, Adoption of the Agreement, Annex I, United Nations Framework Convention on Climate Change, Preamble, FCCC/CP/2015/L.9/Rev.1, Paris, November 30 to 11 December 2015).

8Ibid.

9Fiona Harvey, Paris climate change agreement: the world?s greatest diplomatic success, The Guardian, December 14, 2015, available at http://www.theguardian.com/environment/2015/dec/13/paris-climate-deal-cop-dip... (last visited 19 December 2015).

Ntina Tzouvala - Tue Jan 12, 2016 13:17
Julia Dehm This is the first contribution of an online symposium co-hosted by Law and Global Justice at Durham and Human Rights in Ireland on the Paris Climate Agreement. The call for contributions is still open, and inquiries should be addressed to Ms Ntina Tzouvala (konstantina.tzouvala@dur.ac.uk). #COP21 in Paris has produced a global legal agreement […]coal killsAustralian climate activist theatre troupe, ClimActs, as “climate guardians” in Paris

Julia Dehm

This is the first contribution of an online symposium co-hosted by Law and Global Justice at Durham and Human Rights in Ireland on the Paris Climate Agreement. The call for contributions is still open, and inquiries should be addressed to Ms Ntina Tzouvala (konstantina.tzouvala@dur.ac.uk).

#COP21 in Paris has produced a global legal agreement to address climate change which allows governments and world leaders to celebrate their “historic” and “landmark” commitments, all while delaying the action that is necessary to address climate change. The Agreement, although framed in terms of “high ambition”, provides only a slight moderation of ?business as usual?. The Paris Agreement fails to meet all the elements of the “Peoples’ Test“, the criteria that social movements, trade unions and environmental groups agreed would need to be meet for a fair and effective agreement. It fails to catalyze an immediate, urgent and drastic emission reductions; provide adequate support for transformation; deliver justice for impacted people; or focus on genuine effective action rather than false solutions. It thus, breaches multiple climate justice “redlines”. The Paris outcome has been called a “fraud”, “fake” and “bullshit” by eminent climate scientist James Hanson and was described by Global Justice as a text that “undermines the rights of the world’s most vulnerable communities and has almost nothing binding to ensure a safe a livable future for future generations”. Others pronounced that the talks had “failed humanity” with negotiations focused more on “commercialization of nature” than “saving Mother Earth”.

These scathing assessments however sit uneasily with the celebratory tone of the mainstream press, political leaders and large environmental NGOs who have heralded the deal as “landmark”. The UNFCCC proclaimed it a “historic agreement to combat climate change and unleash action and investment towards a low carbon, resilient and sustainable future.” International lawyers have been more measured in their reactions, but prominent commentators have assessed the Paris Agreement as a “triumph” that “strikes a fine balance between ambition, differentiation and finance”, while another international lawyer described it as “potentially pivotal”, a “solid outcome” that satisfied a modest criteria of success. In this context it is critically important to interrogate both the substance of the Paris Agreement, but also its reception, given it is, as the Director of Global Justice writes, “outrageous that a deal is being spun as a success”. The disjuncture between these highly divergent perspectives can perhaps be explained by George Monbiot’s pertinent assessment that “by comparison to what it could have been, it’s a miracle. By comparison to what it should have been, it’s a disaster”. In a similar vein, other NGOs have welcomed the Paris Agreement, while acknowledging its very real shortcomings as “a hook on which people can hang their demands” and a “new tool to work with” as they continue to mobilize to build the peoples’ power that will be necessary to hold world leaders to the commitments they have publically made.

The highly divergent and irreconcilable responses to the Paris Agreement however are primarily reflective of the differently situated standpoint of those assessing it. It is the people who are on the frontlines of climate change who have been the loudest in condemning the agreement whilst it is those who have the most to lose by the radical transformation of the status quo that climate change demands, that have been most vocal in its praise. Further, the contradictory assessments of the Paris Agreement reflect different understandings and framings of the “problem” of climate change and nature of the social, economic, cultural and political change addressing it demands. The voices who have praised the Agreement are primarily those who conceptualize climate more narrowly as a technical and regulatory challenge that can be addressed within existing capitalist social and economic relations, in many case through an expansion of “green capitalism”, markets for environmental services and pollution trading. In contrast those most critical of the Paris Agreement are groups and individuals with a climate justice analysis that see climate change as embedded within and both reflecting and reproducing global structural inequalities. A media briefing put out by Oxfam during the Paris talks highlights “extreme carbon inequality”.[1] Their analysis suggests that the poorest half of the global population, approximately 3.5 billion people are responsible only for 10% of global emissions from individual consumption, 50% of emissions can be attributed to the richest ten percent, yet, cruelly, it is those who have least caused the problem who are most vulnerable to its effects.

From a perspective attentive to the global distribution of responsibilities and vulnerabilities produced by climate change the Paris Agreement is not only inadequate in its ambitions but further accentuating of these inequalities. It puts in place a “bottom-up” voluntarist framework for climate governance that allows for the abrogation of responsibilities for mitigation and financial support for mitigation, adaptation and addressing already exiting climate change by the most polluting countries. Moreover, the Agreement is structurally unable to contest the logic of economic growth and persistent accumulation driving the crisis given the continual reliance upon and expansion of market-mechanisms and the commodification of the atmosphere as central to its mitigation methods.

Gap between rhetoric and commitments

A key failure of the Paris Agreement is the gap between the stated objectives of “holding the increase in the global average temperature well below 2°C above pre-industrial levels and to pursue effects to limit the temperature increase to 1.5°C above pre-industrial levels” and the actual emission reduction pledges made by countries. While the inclusion of the 1.5°C was a major symbolic victory pushed for by the most vulnerable countries, given that exceeding 1.5°C warming entails unacceptable impacts for billions and people and risk exceeding irreversible tipping points, the actual pledges submitted by 187 countries (called “intended nationally determined contributions” (INDCs) in UNFCCC-speak) have been assessed by independent monitors and the UNFCCC to put the world on track to 2.7 – 3.4°C warming. The INDCs of key polluting countries propose only minimal reductions of 1% per year, while others propose reductions compared to “business as usual” and thereby lock in actual increases in emissions. This graph, from a UNFCCC report shows how the properly implemented INDCs will still see a steady growth of aggregate global emissions to 2030. Overall emissions are expected to continue to increase for the next 15 years by significant amounts: an estimated 8-18% increase from 2010 levels by 2025 and a 11-22% increase from 2010 levels by 2030.

Given that the actual pledges made by Parties effectively lock in a catastrophic future, there has been significant focus on the provisions in the Agreement for a “global stocktake” (Article 14) to “racket up” ambition. The first such review is scheduled for 2023 (and every five years thereafter). However at current rates of emissions we could blow the global “carbon budget” we must stay within in order to have a reasonable chance of limiting warming to 1.5°C in six years. That is, by the time the emissions reductions commitments in the Paris Agreement are revisited the window on limiting warming to 1.5°C could already be slammed closed. As such, the lofty language of “ambition” and laudable objectives and promises of future action has operated as dangerous panacea at Paris masking delays with some commentators suggesting that optimism could be call the “new denialism”.

Paradigm shift to a new voluntarist architecture for climate governance

This gap between intention and action is however not the most problematic aspect of the Paris Agreement, rather it is the inequitable framework for action and the sidelining of climate justice demands that are of key concern. The Paris Agreement “completes a paradigm shift” from the top-down model of the Kyoto Protocol, structured around the differentiated obligations of nations based on the developed/developing bifurcations, to the more voluntarist “bottom-up”, “pledge and review” approach of the controversial Copenhagen Accord (2009). This shift has several consequences. Firstly, there is no mechanism beyond peer pressure in the review process to ensure that the voluntary emission reduction commitments made by countries match what the levels of action the science tells us is necessary. Secondly, this voluntarist framework imposed no obligation that countries accept responsibility for meeting at least their “fair share” of the global mitigation effort. Countries, due to their differential wealth and income levels have differentiated capacity to take mitigation action, while the differentiated levels of continued per capita and historical emissions imposes differentiated moral responsibilities to take mitigation action. A recent civil society assessment of the INDCs stressed that “the operationalization of equity and fair shares must focus on historical responsibility and capacity, which directly corresponds with the core principle of the UN climate convention of “common but differentiated responsibilities – with respective capabilities”. The assessment found that “all major developed countries fell well short of their fair shares” while the “majority of developing countries have made mitigation pledges that exceed or broadly meet their fair share”. As such, a third consequence of this “paradigm shift” is that while the principle “common but differentiated responsibilities and respective capabilities” is articulated in the Paris Agreement (Article 2(2)), there is much less scope for its operationalization in a meaningful way.

The issue of climate finance was controversial at the Paris summit, with the US angering developing countries by proposing that the costs of climate finance should be equally born by developed and developing countries. The Paris Agreement states that “(d)eveloped country Parties shall provide financial resources to assist developing country parties with respect to both mitigation and adaptation” (Article 9(1)) but fails to specify amounts or impose obligations on specific states. (Developing countries are “encouraged” to provide such support voluntarily (Article 9(2)). The related COP decision reiterates an intention to continue the existing mobilization goal of USD 100 billion annually by 2020 (first articulated in the Copenhagen Accord) until 2025. To date, much of this promised climate finance has failed to materialize. Although a recent OECD report argued two-thirds of this has been transferred, developing countries accused its methodology as being “deeply flawed” raising concerns this money is neither new nor additional. Given that the United Nations Environment Program has estimated that the cost of climate adaptation could reach $210-300 billion annually by 2050, even if temperature rise was limited to 2°C, these pledges, even if delivered fall horrifically short of what is necessary.

The Paris Agreement further restricts rights of those who are most vulnerable to the effects of climate change in another critical way. The question of compensation for the impacts of climate change has been pushed by small island states since a Convention was first envisioned in 1990. The Paris Agreement included provisions for “loss and damage” (Article 8) for already occurring climate change impacts, however, the COP decision accompanying the decision specifically

Agrees that Article 8 of the Agreement does not involve or provide any basis for any liability or compensation (Decision -/CP.21, para 52).

Reports have claimed that the discussion of compensation for loss and damager were shut down by the US through a mixture of bullying and bribery, which these discussions considered “off limits” as the US “categorically refused to consider any proposal for reparations for the damage rich countries’ emissions have already caused”. The impact of already happening climate disasters is enormous, both the human and economic costs, as demonstrates by the devastation of deadly floods in Chennai, the devastation of Typhoon Haiyan in the Philippines and Tropical Cyclone Pam in Vanuatu. A 2013 World Bank report found that natural disasters cost $200 billion annually, three-quarters of these costs from extreme weather. The issue of compensation for already existing climate impacts is not a question of charity or aid, rather it is accepting the legal and moral obligations of the rich world to repay debts accrued due polluting activities that have caused the climate crisis which is disproportionately devastating those already impoverished by historical and ongoing relations of colonial plunder. Even as climate change disproportionately and devastatingly hits those least responsible for causing the problem and who are already impoverished the hardest, the Paris Agreement fails to impose responsibilities upon those who have transformed the climate to repay their “climate debts” and establish proper mechanisms of international co-operation and support.

Failing to drive necessary structural transformations

Although major newspapers have reported that “200 nations sign in the end of fossil fuel era,” the Paris Agreement does not mention the words “fossil fuels”, “coal” or “oil”. It contains no commitments to leave fossil fuels in the ground, despite the fact that over 80% of proven fossil fuel reserves must remain underground extracted to have reasonable chance of restricting warming to 2°C. Nor does it contain any commitment to remove the over US$500 billion annually in subsidies for fossil fuels (a figure that dwarfs what governments give in climate finance or support for renewable energy technologies). In the immediate aftermath of the Paris Agreement, Australia’s environmental minister approved the controversial Abbott Point coal port, which if built would be one of the world’s largest coal export terminals while the US repealed its crude oil exports restrictions. The same leaders who made speeches about “ambition” at Paris in domestic policy decisions continue to lock-in a fossil fuel intensive future that will fry the world. It is clear that the Paris Agreement, in itself, will not mobilize and galvanize the structural transformation away from fossil fuel that is urgently necessary, instead pressure to keep coal and gas in the ground is coming from increasingly transnationally organized grassroots climate justice movements and frontline communities fighting for land, water, clean air and a habitable future.

Further, rather than addressing a key root cause of climate change, namely fossil fuel extraction, the Paris Agreement aims “to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century” (Article 4(1)). This language of “zero net emissions” has been described as a “dirty secret” of this deal by the ETC Group. The climate emergency requires urgent action be taken to “keep oil in the ground” but also to draw down carbon from the atmosphere through agro-ecology and reforestation. The danger of “net zero” approaches is that they “may prove to be a trap that delays real climate action” and “could allow for business-as-usual greenhouse gas emissions, offset by massive-scale mitigation through the land sector”.

Reliance on neoliberal market-based approaches

The Paris Agreement represents a further consolidation of the deeply neoliberal market-driven approach towards climate mitigation that has proven to be so problematic in the Kyoto Protocol. The Agreement envisions the use of carbon trading as a key means by which mitigation is achieved. Although these words “carbon”, “trading” or “markets” do not directly appear in the text, Article 6 recognizes “voluntary cooperation in the implementation of their intended nationally determined contributions” and the use of “internationally transferred mitigation outcomes” and establishes a mechanisms to support such approaches. Over half the international nationally determined contributions put forward by countries state that intend to use carbon markets to achieve their mitigation promises. The Agreement has been welcomed by Carbon Pulse as “ring(ing) in a new era of international carbon trading”, and similarly celebrated by the International Emissions Trading Association as having a “clear role for markets“. The World Bank response to the Paris Agreement promise to “explor(e) ways to create incentives for large scale cuts in emissions by widening and deepening carbon markets“. These highly neoliberal responses of the climate crisis operate to further commodify and financialize the atmosphere and create a “spatial fix” whereby the emission reduction obligations of the rich world can be displaced through a form of post-modern environmental indulgences. The Kyoto Protocol’s market-mechanisms and the European Union Emission Trading Scheme (ETS) have been heavily criticized for creating perverse incentives and providing a dangerous distraction from the social transformations that are urgently necessary. The Paris Agreement fails to learn from the many flaws of market-based approaches and instead envisions an expansion of these highly problematic mechanisms.

Further, Article 5 of the Paris Agreement provides for “action to conserve and enhance, as appropriate, sinks and reservoirs of greenhouse gases” through the controversial Reducing Emissions from Deforestation and forest Degradation (REDD+) mechanism. Although many of the details of the REDD+ framework have yet to be finalized, it envisions allowing “offsets” produced from “additional” forest protection in the global South to be used towards achieving the emission reduction targets by countries in the global North. These schemes have been criticized as a “false solution“, that fails to reduce aggregate global emissions, that could promote a new “landgrab” over forest areas and violate the rights of the 1.6 billion people, many of whom identify as indigenous, that live in and around forested areas. Indigenous activists have argued that REDD+ promotes new forms of “carbon colonialism” or CO2lonialism. Indigenous groups, social movements have vocally opposed the “false solutions” such as carbon trading that are part of the Agreement and “called on movements to continue to build their own, just alternatives to the political and economic systems that have caused the climate crisis”. In response to the Paris Agreement, Tom Goodtooth, Director of the Indigenous Environment Network said:

Instead of cutting CO2 and greenhouse gas emissions, the UN, the US, the EU, China, Norway and climate criminals like BP, Total, Shell, Chevron, Air France and BHP Billiton are pushing a false solution to climate change called REDD (Reducing Emissions from Deforestation and Degradation). REDD is a carbon offset mechanism which privatizes the air that we breathe and uses forests, agriculture and water ecosystems in the Global South as sponges for industrialized countries pollution, instead of cutting emissions at source. REDD brings trees, soil, and nature into a commodity trading system that may result in the largest land grab in history. It steals your future, lets polluters off the hook and is a new form of colonialism. NO to Privatization of Nature!?

The promotion of these carbon offset schemes was a key reason why indigenous rights activists were so concerned about the removal of any reference to human rights and indigenous peoples rights from the final agreement. Bracketed text that addressed human rights, indigenous rights and gender equity was removed from the Agreement’s objectives and included only in the Preamble, after pressure from Britain, Norway and the US. In response Indigenous “kayactivists” paddled down the Seine River to protest this exclusion, continuing the struggle activists have fought since 2007 to ensure UN climate projects respect indigenous rights.

Where to now?

The failure of the Paris Agreement come as no surprise to climate justice social movement groups, many of whom were highly skeptical of the talks and the hope that was being invested in them. The UNFCCC Conference of the Parties have in recent years quite literally become Conference of the Polluters “serving as exhibitions and promotional fairs for the world?s biggest environmental criminals.” In Paris activists targeted the corporate capture of the talks, by staging protests at the “Solutions COP21” side event where companies such as Engie (formerly GDF Suez), Carrefour, Veolia, Sofiprotéol and Schneider Electric promoted corporate responses to climate change, where they were dragged out by police.

There are however, as Jess Worth and Danny Chivers write, reasons to feel positive about Paris, not because of the Summit or its outcomes, but because of the organizing and vibrant protests of social movements in the streets outside. Despite the repressive conditions state of emergency imposed by the French state, grassroots groups affirmed they would take to the streets despite the ban, many facing violent repression from French police who attacked, tear gassed and arrested hundreds of protestors. On the 12th of December people took to the streets, depicting visually the “redlines” that the Agreement crossed, thousands marched condemning the failures of the Agreement. A Declaration put out by the group It Takes Roots reads:

We leave Paris only more aligned, and more committed than ever that our collective power and growing movement is what is forcing the question of extraction into the global arena. We will continue to fight at every level to defend our communities, the earth and future generations.

It is this spirit of defiance and dedication to disrupting that status quo that holds the best hope for still minimizing the devastating impacts of climate change. After the Copenhagen climate summit ended disastrously in December 2009 with global leaders failing to reach a legally binding climate agreement climate activists in Newcastle, Australia took action into their own hands, stopping a coal train headed to the largest coal export terminal in the Southern hemisphere and unfurled a banner: “Greed wreaked Copenhagen. Now its up to us”. Six years later, global leaders are celebrating a “landmark” agreement that nonetheless fails people and the planet.  Substitute “Copenhagen” for “Paris” and the message is the same, and the same spirit of continuous struggle will be necessary to contest the vested interests and the drive for accumulation that has brought us to the brink of planetary disaster.

 

Julia Dehm (Postdoctoral Fellow, Rapoport Center for Human Rights and Justice) jdehm@law.utexas.edu

 

[1] See also Lucas Chancel and Thomas Piketty, “Carbon and Inequality: from Kyoto to Paris” (3 November 2015, Paris School of Economics) <http://piketty.pse.ens.fr/files/ChancelPiketty2015.pdf>.?utm_source=rs...

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