Birth citizenship & Ireland

(Delighted to welcome back alumna Siobhán Mullaly, who contributes this guest post)

The primacy given the protection of the family in Irish constitutional law has frequently been invoked as a marker of Ireland’s distinct national identity, most recently in debates on the ratification of the Lisbon Treaty and constitutional reform in the European Union. Despite the apparent strength of these protections, however, migrant families, including those with Irish citizen children, have found themselves repeatedly denied the core protections of private and family life, including the right to remain in the State. In a series of cases in the Irish courts (right), the limits of citizenship in securing the right to be ‘part of the Irish nation’ (Article 2 of the Constitution) have been revealed.
The rapid increase in inward migration to Ireland at the start of the new millennium (now sadly reversed), led to increasing controversy surrounding the right to citizenship by birth. As the numbers of families claiming residence rights on the basis of having Irish citizen children increased, political pressure to deny these claims grew. In 2003, the Supreme Court, in the L. and O. cases, dismissed an appeal from the third country national parents of Irish citizen children, who were challenging their pending deportation from the State. Distinguishing earlier case-law, the Court concluded that requirements of the common good, including the need to preserve the integrity of the asylum and immigration process, could justify justify the deportation of a parent of a citizen child and a denial of the child’s right to the care and company of their parents in the State. At the time, more than 11,500 applications for residence were pending from third country national parents, with Irish citizen children.
The Supreme Court judgment, however, did not stem the tide of inward migration. And so, just one year later, the L. and O. cases were followed by a divisive constitutional referendum, which led to the imposition of restrictions on the right to citizenship by birth. Questions remained, however, as to how to address the position of the many Irish citizen children who might now face ‘de facto’ deportation along with their third country national parents. In January ’05, the Government introduced the Irish Born Child (IBC ’05) scheme, to assess applications for residence from third country national parents of Irish citizen children, born prior to Jan ’05. The majority of the applications under the IBC ’05 scheme were granted. A small minority, however, led to refusals and to a series of cases challenging the scheme’s compliance with article 8 of the ECHR, with EU law and with Irish constitutional law.
In Bode v Minister for Justice Equality and Law Reform (2007), the Supreme Court controversially concluded that ECHR and constitutional rights claims did not have to be considered when assessing applications under the IBC’05 scheme, and would only arise in the context of deportation proceedings. The Court found that a decision to grant residency within Ireland on the basis of the IBC ‘05 Scheme was a mere ‘gift,’ extended by virtue of the benevolent and ‘generous’ exercise of executive power. The Supreme Court reversed the earlier findings of the High Court, where Justice Mary Finlay Geoghegan found that the failure to consider the citizen child’s personal rights and right to private life was a breach, both of the constitutional protection of personal rights and article 8 ECHR. Citing Sisojeva v Latvia (Eur. Ct. H. Rts. 2007) , she concluded that the right to private life gave rise to positive obligations on the part of the State to ensure the effective exercise of the child’s rights. The rights guaranteed by article 8, she said, must be ‘practical and effective.’ Given the tender age of the children in the test cases before the Court, she concluded that the State had a positive obligation to grant permission to the parent to remain in the State.
The relational understanding of rights implicit in Finlay Geoghan’s judgment did not, however, find support in the Supreme Court. Neither has it, until now, found support in subsequent case-law. An ‘insurmountable obstacles’ test continues to be relied upon by the Irish courts, to determine whether or not the parent of an Irish citizen can be lawfully deported. Currently there are several cases pending before the High Court involving deportation proceedings against third country nationals, who are parents of Irish citizen children. Two recent judgments are likely to have a significant impact on these proceedings:
► The first is ZH (Tanzania) v the Secretary of State for the Home Department, an 11 February 2011 judgment of the UK Supreme Court (left), in which Lady Brenda Hale, giving the lead judgment in the case, found that in making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This, she said, ‘means that they must be considered first.’ Notably Lady Hale cited directly from Jacqueline Bhabha’s essay, 'The "Mere Fortuity of Birth"? Children, Mothers, Borders and the Meaning of Citizenship,’ to support her conclusion: ‘the fact of belonging to a country fundamentally affects the manner of exercise of a child's family and private life, during childhood and well beyond.’ In contrast to the Irish courts, Lady Hale emphasised the intrinsic importance of citizenship, including the value of ‘growing up and being educated’ in one’s own country, and pointed to the increasing emphasis on the child’s best interests in the Strasbourg case law, including in Uner v Netherlands (2006), Maslov v Austria (2007), and da Silva, Hoogkamer v Netherlands (2006). She also noted that in the context of immigration, the requirements of the ECHR must be interpreted in harmony with the general principles of international law, including those set out in the UN Convention on the Rights of the Child.
► The second significant development is the Zambrano judgment handed down by the European Court of Justice (right) on March 8 of this year. The Zambrano judgment has direct and immediate implications for Ireland’s practice to date in allowing de facto deportations of citizen children. What is notable about the Zambrano judgment is the willingness of the ECJ to go beyond the protections of family life afforded by the Irish courts. The Zambrano judgment did not, in fact, engage with arguments concerning family life or family unity. The judgment of the Court, instead, focuses on the ‘cardinal value of citizenship’ – the right to live and remain in the State of which one is a national. As in the 2004 Zhu and Chen judgment, the ECJ recognizes the network of relationships into which a child is born, and the dependency and vulnerability of a child. Going substantially beyond the Irish courts, the ECJ in both Chen and Zambrano recognizes that a child’s state of dependency requires the presence of his or her parents, so as to ensure the effective enjoyment of the rights associated with citizenship of the Union, as protected by Article 20 of the Treaty on the Functioning of the European Union. Questions remain as to how dependency will be interpreted, and of course, what will be the ‘push back’ from Member States of the EU, many of whom, including Ireland were watching these proceedings closely.
Predictably, the Zambrano judgment has given rise to much commentary in Ireland. It is to be hoped, at least for now, that it will finally bring home to Irish courts, the significance and meaning of a child’s citizenship and attachment to the State.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[T]he Grand Chamber's judgment exposes flaws in the current European asylum regime. ... [E]stablished to reduce 'asylum shopping' and ensure minimum standards of protection to asylum seekers across the European Union, [it] is based on a presumption of equality and cooperation among safe countries. For geopolitical reasons, [there is] an unbalanced burden-sharing among the various European countries.
The judgment acknowledges those challenges, yet underlines that neither uneven burden-distribution (Greece) nor a state's minimalist reaading of the Dublin Regulation (Belgium) absolves Member States of their responsibilities vis-à-vis the Convention or other applicable international treaties ....

-- Tom Syring, co-chair of the International Refugee Law Interest Group of the American Society of International Law and member of Norway's Immigration Appeals Board, in an ASIL Insight written in his personal capacity. Syring analyzed the judgment that the European Court of Human Rights (right) issued this January in M.S.S. v. Belgium & Greece. An asylum case, M.S.S. unfolded within the framework of the Common European Asylum System -- launched in 1999 and better known as CEAS -- as well as the 2003 Dublin Regulation that implements CEAS. A 17-member Grand Chamber of the Court ruled that both respondent countries had violated rights of the asylee-applicant under Article 3 (banning inhuman and degrading treatment) and Article 13 (guaranteeing an effective remedy) of the 1950 European Convention on Human Rights. Belgium was faulted for having returned the applicant to his 1st state of entry -- Greece -- without considering that there he might endure the poor living conditions and risk of refoulement to his native Afghanistan. Greece, meanwhile, was held to account for the possibility of such risks and for the delays in providing the remedy of asylum. By Syring's telling, the judgment appears to place a significant, affirmative responsibility on member states -- and thus is well worth a read for international lawyers in many fields beyond that of asylum law.

Intimate Violence, Victim Autonomy & State Due Diligence

Recently, I had occasion to re-read the momentous case of Opuz v. Turkey before the European Court of Human Rights (a case we've discussed on a number of occasions). (The photo at left shows some students and I visiting the Court several years ago). In Opuz, the Court ruled that Turkey’s failure to respond to twelve years of domestic violence against a woman and her mother (who was ultimately killed by the perpetrator) amounted to a violation of the right to life (set forth in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms); a violation of the right to be free from torture and ill-treatment (Article 3); and a violation of the right to non-discrimination on the basis of sex (Article 14).
In so ruling, the Court determined that laws on Turkey's books addressed to protecting victims of intimate violence were not fully implemented:

• Protective orders took weeks to be issued and then courts failed to enforce them;
• Police either attempted to convince the (usually female) victim to drop her complaint or interjected themselves into the relationship in an effort to arbitrate a resolution of the dispute;
• Prosecutors refused to pursue cases;
• Courts entertained "provocation" and "defense of honor" excuses and issued sentences that are more lenient than those awarded for comparable crimes committed outside domestic context; and
• knowledge of the laws was low within the populace.

Acknowledging that it cannot place an "unreasonable or disproportionate" burden on the State vis-a-vis the State's positive obligations to prevent violations, the Court held nonetheless that the State's duty to intervene is triggered as soon as the State's agents know (or should know) that there is a real and immediate threat to an individual. (Para. 129). In light of the escalating violence against the applicant and her mother, the Court held that the responsibility for the effective prevention and prosecution of acts of intimate violence fell squarely on the State.

One aspect of the case on which we've not heretofore focused involves the fact that several times over the period in question, the applicant (at left, photo credit) and her mother filed, but then withdrew, criminal petitions against the abusive husband. The Court thus had to consider whether the authorities were nonetheless obliged under the circumstances to pursue the criminal proceedings against the husband.

The Court noted that a number of states require the authorities to continue criminal proceedings even when the victim withdraws a complaint in cases of domestic violence. In other states, the authorities may continue such proceedings in the public interest in light of several factors, including:

• the severity of the offense and whether it was premeditated,
• the use of a weapon and the issuance of threats,
• the presence of children or other at-risk individuals in or around the household,
• the current state of the relationship of the victim and the perpetrator,
• the perpetrator's criminal history,
• perceptions about the existence of a continuing threat, and
• the history of the relationship between the victim and the perpetrator.

Some states make the further distinction between crimes that are privately prosecutable and require the victim's complaint, and other--usually more serious--offenses that are prosecutable in the public interest in the absence of the victim's complaint and even without the victim's support. (See paras. 87-89).

In Turkey, it is only where the crime in question resulted in unfitness to work for ten days or more that the authorities were required to pursue criminal proceedings even absent a complaint lodged by the victim. (Para. 123). Indeed, Turkey argued that it would have violated the applicant's right to privacy and family life, set forth in Article 8 of the Convention, were the police to have separated the husband from the family.

The Court noted that a balance must be struck between the right of every person to be protected from intimate violence and the parallel rights to privacy and the family. (Para. 138). Here, the Court determined that Turkey had not struck the right balance in light of the factors listed above. Rather, the Turkish legislative framework set too high a bar to allow a prosecution to go forward absent a complaint from the victim. In addition, the authorities, although not entirely passive, failed to display the necessary due diligence to protect the rights at issue in light of those protective measures that were available to them and the severity of the harm. Bearing in mind the many reasons a victim might withdraw her complaint (including threats, "false consciousness," an apparent reconciliation, and a faith in the perpetrator's willingness and ability to reform), the rights to privacy and the family cannot be applied in such a way that they effectively override those rights addressed to the very safety of the private realm in the first place.

Interights intervened in the case (their case file is here) and provided an excellent brief on the emerging due diligence standard in human rights law. The brief traces trends in domestic law away from requiring victim participation in such cases towards placing authority for effective prosecution on the State. In addition, the brief noted that other persons and entities (such as medical personnel, family members, and neighbors) can increasingly report cases of domestic violence.

The petitioner, Nahilde Opuz, is reportedly in hiding, concerned that her ex-husband will retaliate against her for pursuing her case.

Some Thoughts on Securing the Future of the European Court of Human Rights

It is cliché at this point to say that the European Court of Human Rights (left) is in crisis: we all know that it faces an enormous backlog of applications and that, in spite of the new arrangements introduced by Protocol 14 (once Russia finally ratified it…), these problems are persistent and serious.
Last year there was a meeting in Interlaken to try to come up with some solutions to these difficulties and, in particular, to try to design and envision mechanisms by which the future of the Court could be secured. I blogged about that conference and the Declaration that emerged briefly at the time, and indeed Alistair Mowbray has produced a really excellent overview of both for the Human Rights Law Review which people with access to Oxford Journals can download here.
However, in my view the Interlaken process and the declaration that followed it singularly failed to come properly to grips with what I think is a fundamental element of the challenge faced by the Court: the expectation (quite widespread) that the Court can continue to function as both a constitutionalist court and an adjudicatory court where individuals are at the blunt end of actions that have been clearly—and often repeatedly—found to violate the Convention in Strasbourg jurisprudence. In a paper that I’ve posted as a working paper on SSRN (download free here) and which will appear in final form in the Irish Human Rights Law Review, I argue that persisting with this ‘dual functionality’ poses a serious difficulty for securing the Court and that, in fact, its constitutionalist function ought to be privileged over the adjudicatory one. I want to outline a few of the reasons for this here.
At bottom my argument is that the Court continuing with this dual functionality and especially with having to deal with repetitive applications (which is widely recognised as being problematic) is damaging it, not just because it means there is a huge volume of applications with attendant delay and cost, but primarily because it means that the Council of Europe, domestic political systems and domestic courts can continue to use the Court as a kind of an ‘escape hatch’ from having to properly internalise and apply the principles and judgments of the Convention and Court.
► First of all expecting the Court to continue to deal in some way with non-constitutionalist repetitive applications absolves the Council of Europe from really placing firm political pressure on states that are engaging in activity and behaviour that clearly violates the Convention. It means, in essence, that rather than using international political processes to reinforce and make effective the principles of international law, the Council can (and does) marginalise human rights enforcement by its member states in the comfortable knowledge that the Court will adjudicate on potential violations following which the Committee of Ministers will supervise execution of the judgments. In the article I put it thus:

As we know, the judgments of the Court are binding only on the states that are party to them but of course the principles outlined therein (especially in constitutionalist cases) have implications beyond those state parties. The only way in which the importance of those principles can be fully appreciated by member states within the Council of Europe is through an appropriate level of inter-state interaction, encouragement, reputational trading, and other typical international relations processes. It is incumbent upon states to ensure that compliance with the judgments of the Court and the principles of the Convention is an expected course of behaviour from all member states and, almost more importantly, that failure to do this is subject to political sanction quite apart from the juridical processes of the Court.

► Secondly I say that the adjudicatory function of the Court allows for national political systems—especially but not limited to parliaments—to sideline Convention issues if they wish to. This is especially the case, I think, where a state has a law or norm that is analogous (or, indeed, sometimes identical) to one in operation in another state and that other state had been censured by the Strasbourg Court in relation to the law or norm in question. In those situations one would expect that a state would try to remedy the situation before a case comes before the Court, especially where it a near certainty that if the State does appear before the Court in relation to same it will be found to be in breach of the Convention. This is something we are all too familiar with in Ireland, where we have failed to take action in response to cases against other states when our own law is clearly analogous to the one impugned: one need only think of Norris v Ireland (ECHR 1988) for an example from our past. In the piece I try to foresee what impact refocusing on constitutionalism would have on situations like this:

So what would happen if the European Court of Human Rights were to refocus its efforts on constitutionalist cases so that these repetitious applications would be greatly reduced? In the first place we might expect a greater degree of inter-state political pressure for change within the Council of Europe as considered above; secondly we might see the energies of NGOs that currently apply substantial amounts of energy (and, indeed, resources) to supporting litigants in taking cases ‘to Europe’ could redirect those efforts and resources towards the domestic political processes (which is, after all, where substantive legal change ultimately takes place); thirdly we might see the development of a further and more mature relationship with the Convention within legislative processes. I have written before, with Cliona Kelly, of the failure of the Irish legislative processes to internalise the Convention in an effective manner. Would removing the ‘security blanket’ of the Court’s adjudicatory function (that allows domestic politico-legal processes to abdicate the responsibility to take the Convention and the decisions of the Court into full and appropriate account), combined with real inter-state rights-based scrutiny within the Council of Europe and potentially more well-resourced NGOs putting pressure on the domestic systems, in fact improve the Convention’s effectiveness? I think that is at least a likely outcome.

► And finally I argue—along somewhat the same lines—that reducing or removing the adjudicatory function might invigorate judicial engagement with the Convention, and especially the process of developing autonomous understandings thereof:

[R]ather than considering themselves incapable of developing the Convention beyond the standards outlined by the Strasbourg Court…and being able to rely on the European court of Human Rights to ‘nudge’ them step-by-step along the way…domestic courts would be incentivised to develop their own autonomous understandings of the Convention. Those understandings would, of course, be framed within the constitutionalist principles laid down by the Strasbourg Court, but they would truly entrench the Convention within the domestic legal system.

The Interlaken Declaration did not, I think, engage seriously enough with the problematic nature of the dual functionality of the Court to be able to set in motion a process that would really secure the future of the Court.
A shift away from adjudicatory function (especially in repetitious cases) and refocusing towards constitutionalism would not be easy. Certainly there is a huge pressure from many, including the NGO community, to maintain individual adjudication as central to the Court and I can entirely see the motivation for this. But I think it’s a little bit like a negative circle: we need an adjudicatory court because states won’t embed the constitutionalist principles it espouses but maintaining adjudicatory functions takes away many of the incentives that are required to ensure full internalisation of the Convention in domestic legal and political systems. This is absolutely a quandary, and one that I think is very difficult to emerge from. My piece is trying, at least, to think through some of the elements of that quandary.
There is still time to make changes to the paper before publication and any comments are most welcome!

(Cross-posted at Human Rights in Ireland)

Disappointing decision on abortion in Ireland

(Delighted to welcome back alumna Máiréad Enright, who contributes this guest post)

Over at the Human Rights in Ireland I have assembled a series of 'rapid responses' by five Irish feminist scholars to the recent judgment in A, B & C v. Ireland (December 2010), in which the European Court of Human Rights (right) ruled that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. IntLawGrrls Fiona de Londras discussed the judgment as soon as it was issued, on this blog here. The responses that I have compiled critique the judgment and aim to place it in its broader legal context.
► Dr. Lisa Smyth, a sociologist at Queen's University Belfast, argues that the judgment in A, B & C signals a 'downgrading' of the abortion issue in Ireland: the shift from widespread moral to detailed legal argument signals the changed significance of this issue, once imagined to capture the essence of Irishness in the face of a history of colonisation and an imagined future of increasing European liberalisation.'
► Dr. Brenda Daly of the School of Law and Government at Dublin City University explains why the judgment will almost certainly drive the Irish government to legislate to regulate access to life-saving abortions.
► Dr. Mary Gilmartin (below left), at the Department of Geography, National University of Ireland-Maynooth, notes that the judgment leaves the status quo untouched as it concerns women whose lives are not placed at risk by pregnancy. She writes that

'the Court is following decades of practice in Ireland – from the forced emigration of pregnant women in the mid twentieth century to the ‘right to travel’ of the 1990s – where mobility has become an expedient way of addressing the vexed question of women’s sexuality. That mobility is still a ‘solution’ means that the broader issue of access to abortion services continues to be displaced across international borders.'

► Dr. Ruth Fletcher of the School of Law at Keele University in Staffordshire, England, sets the judgment in the context of ECHR jurisprudence and criticises it on four grounds:
►► It overstates the respect due to 'profound moral values' as a ground for limiting individual rights;
►► It simultaneously limited the capacity of consensus among contracting states to restrict the scope of the individual state’s discretion to protect morals;
►► It did not take adequate account of health and well-being as important individual interests; and
►► The state is allowed to claim that it is meeting negative obligations to protect women’s health and well-being, by relying both on women’s resourcefulness to exit the jurisdiction and on the availability of independent, charitable services in other jurisdictions. (On this aspect of the decisions, see too the recent New York Times op-ed by American legal expert Linda Greenhouse (above right).
► Finally, Dr. Sandra McAvoy (left) of Women's Studies at University College Cork interrogates the dubious basis upon which the Court established the 'profound moral values' to which Ruth refers.
Together these pieces provide a rich introduction to the issues raised by this important, if ultimately disappointing, judgment.

2 tacks to combat piracy

Year's end finds 2 countries setting different courses to combat the recent spate of pirate attacks in the Gulf of Aden off the coast of Somalia.
In the United States, just before Thanksgiving, a federal jury in Virginia returned convictions for piracy and other offenses against 4 Somali defendants. (credit for detail from 2010 courtroom sketch by Alba Bragoli/AP) The verdict came one month after the judge in the case, United States v. Hasan, sustained a charge brought under 18 U.S.C. § 1651. The statute provides, in language dating to 1819:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

Yet in the same courthouse a few months earlier, a different federal judge, in the case of United States v. Said, had dismissed a piracy charge brought against 6 other Somali men. Tripping the latter judge up was Congress' reference in § 1651 to "the law of nations."

The opposite rulings reflect uncertainties about whether an old legal framework presents the proper way to proceed against 21st C. pirates. It's a puzzle addressed in this discussion by our OJ colleagues, and in many IntLawGrrls posts available here.

In the United States, the discrepancy next awaits consideration by the Virginia-based Court of Appeals for the 4th Circuit.

France, meanwhile, has taken another tack.

France also has been involved in policing piracy in the Gulf of Aden. (credit for March 2010 of French naval vessel, with "Somali pirate skiffs" in foreground) France also has found that its old laws fell short -- and so it's opted for a legislative fix.

Shortly before Christmas, the Sénat voted unanimously in favor of the Loi de lutte contre la piraterie et d'exercice des pouvoirs de police de l'Etat en mer -- a bill to ease the pursuit and punishment of pirates that the legislature's lower house already had approved.

Key components:

► An 1825 French antipiracy law having been abrogated in 2007, the newly adopted law reintroduces into the penal code the crime of piracy -- a crime may be pursued via universal jurisdiction. The new law applies to acts of piracy "within the meaning of" the 1982 U.N. Convention on the Law of the Sea, "committed ... on the high seas," "in maritime spaces outside any state's jurisdiction," and "when international law permits, in a state's territorial waters." That Convention is an artifact of the law of nations to which France has been a state party since 1996, but to which, as posted, the United States does not belong.

► The new statute further establishes a legal regime for detaining suspects onboard French naval vessels while they are being transported to judicial authorities. These Mesures prises à l'encontre des personnes à bord des navires respond to a March 2010 judgment, Affaire Medvedyev et Autres c. France, in which the European Court of Human Rights held that France had violated the guarantee of liberty and security of person in Article 5 of Europe's human rights convention by its high-seas detention in 2002 of members of a ship's crew who were suspected of trafficking in drugs.

(Deep thanks for invaluable assistance with this post to University of California-Davis LL.M. student Johann Morri, on leave this year from his post as a French administrative law judge.)

The European Court of Human Rights on Abortion in Ireland

This morning in A, B & C v Ireland the European Court of Human Rights held that Ireland’s failure to regulate how women can exercise the limited constitutional right to an abortion violates the European Convention. The Court did not extend the right to an abortion any further than the Irish Supreme Court itself had done in 1992 but the release of the judgment has created renewed momentum around the issue. As a general matter, abortion is illegal in Ireland and Article 40.3.3 of the Constitution provides “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right”. That opens up limited exceptions allowing for abortion, the extent of which was decided by the Supreme Court in the tragic circumstances of Attorney General v X in 1992.
X—a teenage girl—had become pregnant as a result of rape and was suicidal. It was decided that she would travel to England for an abortion. Attempts to prevent this culminated in a Supreme Court case. The Court held that the Constitution allows for abortion where there is a “real and substantial risk” to the life (although not the health) of a pregnant woman, including from suicide. Some 18 years later there has been no regulation of this right and we still have no system of determining whether abortion is lawful in particular cases.
The decision handed down today in A, B & C is really quite limited. Unless there is a risk to the life of a pregnant woman there is no right to an abortion in Ireland; rather being permitted to travel for an abortion is enough to satisfy the Convention. However, where there is such a risk to life (and, as a result, there is a constitutional entitlement to an abortion), there must be a coherent legal framework in which entitlement to an abortion can be determined.
Thus, the Court does not extend the right to abortion beyond what had already been recognised within the Irish Constitution itself; neither does it say there is a “human right to abortion”. That should immediately put any claims of ‘European interference’ to bed. In fact, the judgment is extremely respectful of the Irish position and recognises that the extent to which any country allows for an abortion is a matter in which that country is entitled to a significant degree of discretion. That does not mean, however, that the case will not result in controversy in Ireland.
Abortion remains a deeply contentious social issue here. With a general election forthcoming, the case has already reignited the national debate and the question of what any new government might do to respond to it may well become a dominant theme in the campaign. This is especially so because, if Ireland is to comply with the Convention, we now have two choices: either have a constitutional referendum to remove this limited right (or, although unlikely, to extend it) or regulate the right as recognised in the X Case. Either choice will cause social division, although a referendum would in all likelihood create a greater social rupture.
What is abundantly clear now is that the situation cannot reasonably remain as it is. Since 1992 doctors have operated under what the Court called the “chilling effect” of the regulatory vacuum and women whose lives are at risk have found it practically impossible to exercise their constitutional right to elect for a termination. That this situation has persisted for 18 years is an abject failure of Irish politics; if it continues following the General Election it will further reinforce the unwillingness of Irish politicians to finally confront one of Ireland’s most persistent social and legal controversies.

There is more commentary, including from IntLawGrrls alum Máiréad Enright, on Human Rights in Ireland.

On October 8

On this day in ...
... 1600 (410 years ago today), what is now the world's oldest written Constitution was adopted in San Marino, a mountainous country that now takes up territory about half the size of Washington, D.C., and that is fully surrounded by Italy. San Marino's Executive Branch comprises 2 co-chiefs of state, a cabinet head of government -- currently, Secretary of State for Foreign and Political Affairs Antonella Mularoni (left), a University of Bologna-trained attorney who has served as a Judge on the European Court of Human Rights. Forming other branches of government are a unicameral parliament and and judicial Council of 12.

(Prior October 8 posts are here, here, and here.)

The Application of International Law to Systemic Intimate Violence

I am very grateful to IntLawGrrls for the opportunity and space to contribute this guest post discussing my work on systemic intimate violence and international law. The following discussion is based on my book, Domestic Violence and International Law, and the international law dialogue held yesterday at Chatham House on this subject.

The application of international law to domestic violence raises both intuitive and intellectual questions. Is there a right to be free from domestic violence in international law? If there is such a right, what is its substance? And wherever there is a right, of course, we search for the corresponding legal obligation. How do we categorise that obligation in international law and to whom does this obligation apply? Finally, the most intuitive and human of all questions, how can the broad – and by definition – global network of international law possibly assist people in the most intimate and private contexts of their lives?
I address these problems in the book Domestic Violence and International Law. The book emanates from the tragic uniformity of domestic violence stories by women around the world. Equally disquieting is the uniformity of the state’s non-response. In the face of severe acts of domestic violence, including battering, breaking, burning, raping, hacking forced sexual encounters with third parties, threats of harm, verbal denigration and murder, the state is silent. The remedies that exist in the public world simply fail to permeate into the private sphere to attenuate intimate harm.
In this discussion, I will consider firstly whether there is an authoritative right in international law to be free from domestic violence and, if so, what the substance of that right should be. I then consider the corresponding state obligation. And finally I address the most intuitive question, namely, how can international law benefit victims and survivors of systemic intimate violence?
Assessing the existence of a right in international law is difficult. There is no central law-making authority. According to the statute of the International Court of Justice (art 38), there are four sources of international law, namely, treaties, customary international law, the law of (so-called) civilised nations and finally, the jurisprudence of courts and tribunals and the writings of respected scholars. In the book I analyse these sources of law and conclude that, on a strict, black letter legal analysis, it is not clear that there is an authoritative principle in international law that states have an obligation to prevent domestic violence; however, I argue that we are in the amorphous process of norm crystallisation. We are on an irreversible trajectory towards an obligation in international law on states to protect victims and survivors of domestic violence.
This is evident from the following developments in international law. The first is the work of the special rapporteur on torture, who categorises domestic violence as a form of torture, prohibited under the Torture Convention. The second is the landmark ruling by the Inter-American Court of Human Rights in the ‘Cotton Field’ case, in which the Court held that Mexico was in breach of the Inter-American Convention on Human Rights and the Convention of Belem do Para for failing to investigate the disappearance and murder of women over a period of 15 years. Many of these deaths and mutilations were linked to domestic violence. There are also intense developments in Europe. In 2005 the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) was established. This has led to developments regarding the adoption of a Europe-wide treaty regarding violence against women and domestic violence (the second draft of a CoE convention against violence against women has been distributed). The final important development is the decision of the European Court of Human Rights in the case of Opuz v Turkey (which has previously been discussed on this blog here), where the Court held that Turkey’s failure to respond to twelve years of domestic violence amounted to a violation of the right to life (art 2 of the European Convention); a violation of the right to be free from torture and ill-treatment (art 3 of the European Convention); and a violation of the right to non-discrimination on the basis of sex (art 14).
If we are to take steps to formalise an authoritative international law obligation on states to prevent and respond to domestic violence, it is important to specify the details of the right and the corresponding duty. As regards the right, I propose that not all forms of domestic violence should trigger the provisions of international law. Rather, it is a specific type of violence, what I refer to as systemic intimate violence, which warrants the application of international law. Systemic intimate violence consists of five co-existing elements. The first element is severity – the harm must be severe and can consist of both physical and non-physical violence. There are two important points to make here. I am not suggesting that severity of harm is a test for all forms of domestic violence. Rather it is severity of harm that is an element for systemic intimate violence under international law. This is uncomfortable but necessary. International law regularly distinguishes between degrees of harm (torture v ill-treatment; genocide v murder; mass rape v rape) and it is a form of prolonged, severe harm that triggers in global network of law. If domestic violence is attended to by the state, then in essence the right to protection has been fulfilled. What we examine in international law is where prolonged, severe harm is unaddressed. The test for severity in international law is an objective one (A v United Kingdom) and we ask whether the humiliation to the victim is so intense that a reasonable person would be outraged (Prosecutor v Aleksovski). The following stories of torture, compared to stories of domestic violence, are informative:

I was lying on the floor, two guards held my legs while another kicked me in the testicles. I would lose consciousness and come to, I lost consciousness four times. They hit me around the head, there was blood. They would beat me unconscious and wait until I came round: ‘He’s woken up, and they would come in and beat me [again].

-- Chechnyan survivor of torture by the Russian Army

From the moment Rodi Adalí Alvarado Peña married a Guatemalan army officer at the age of 16, she was subjected to intensive abuse, and all her efforts to get help were unsuccessful. Her husband raped her repeatedly, attempted to abort their second child by kicking her in the spine, dislocated her jaw, tried to cut off her hands with a machete, kicked her in the vagina and used her head to break windows.

-- Guatemalan Woman

[F]irst they would beat you and then you would have to lie down on the floor and crawl to them. You would have to say, “Request permission to crawl.” Me personally, they beat me on the knees, with clubs, and on the kidneys.

-- Chechnyan survivor of torture by the Russian Army

He was sittin’ on the bed. Had his .357 Magnum. He said, ‘June, you get down on this floor right now. You crawl to me.’ And when I got to his feet he took that pistol and hit me right alongside of the head. I thought I was gonna die. I still got the knot from it. He said, ‘if you even act like you’re gonna run I’ll blow your brains all over this wall.’

-- American Woman

The theme of severity of harm that is so intense that it would outrage the reasonable person, is evident.
The second element is that the violence usually operates on a continuum. The exigency of harm may not be in individual incident but in prolonged frequency of events. This is particularly important in domestic violence where violence is cyclical and individual acts seem benign but actually occur along a continuum of control and impotence. The notion of a continuum of harmful incidences was confirmed by the ICTY, noting that it was “sufficient to show that an act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity”(Prosecutor v Kunarac). This element also featured in the Opuz decision: “Although there were intervals between the impugned events… the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.”
The third element of systemic intimate violence is that intimacy. This is an important element for several reasons. The intimacy of helps to ‘disappear’ the violence, preventing the abused from reporting it and the authorities from recognising it. The reality, however, is that the highest rate of violence against women occurs in private relationships. Privacy presents an additional problem: the constitutional right to privacy traditionally is understood as a negative obligation to refrain from interfering with one’s private affairs. However, the ECtHR (Bevacqua and S v Bulgaria and Opuz v Turkey) and the CEDAW Committee (Yildirim v Austria; Goekce v Austria) have recognised that the right to privacy is also a positive obligation to secure the private realm so that individuals may flourish. Privacy cannot be understood merely as a right to be left alone; it is linked affirmatively to the right to liberty, the right to autonomy and self-determination.
The fourth element is group vulnerability. This is not to say that women have some essentialized element of vulnerability and weakness but rather that the legal system, to which women look for assistance, often is inert. Women as a group are affected by domestic violence more than any other group (such as children, the elderly, the disabled, men and non-human animals) and the greatest cause of death and disability among women aged 15-44 worldwide – more than HIV, TB and malaria – is domestic violence.
The final element is that of state failure. In the face of extreme or continued violence, in the private realm, occurring repeatedly against a particular social group, the state is unable or unwilling to respond. This is evidenced by the sad cases of Kontrova v Slovakia and Opuz v Turkey, where the claimants in both cases suffered years of severe physical and non-physical violence, resulting in the death of their children and mother, respectively.
These are the elements of systemic intimate violence.
The next step is to identify the principles of state responsibility in international law and how they might apply in the context of systemic intimate violence. The principles of state responsibility are codified in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In order to determine whether a state has committed an international wrongful act, there must be (i) conduct and (ii) wrongfulness. A state can be responsible for both positive acts and for omissions or a failure to act. In the Corfu Channel case, the ICJ held that Albania had known that there were mines in its territorial waters and had failed to notify third parties about this danger. As a result, Albania had committed an internationally wrong act, not because it had laid the mines but because it has failed to warn third parties about their presence.
If the state fails to act where it has an international legal obligation to do so, the wrongfulness test asks us to consider what steps a state ought to have taken to fulfill this legal duty. The approach adopted in international law is the so-called due diligence standard. The principle, originally enunciated in the case of Velasquez Rodriguez v Honduras and fortified by the UN special rapporteur on violence against women, holds that an illegal act, committed by a private person, can lead to international responsibility of a state, not because of the act itself, but because of the lack of due diligence to prevent the violation or respond to the harm.
How does this apply to cases of systemic intimate violence? The test can be summarised as follows: (i) did the authorities know, or ought they to have known, at the time of the existence of a real and immediate risk to the life or well-being of an identified individual from the criminal acts of a third party; and, if so (ii) did the state fail to take measures within the scope of its powers, which, judged reasonably, might have been expected to avoid that risk. This test can be answered in the affirmative in the Kontrova case, where the state knew about the history of violence against the complainant when the complainant reported that her estranged husband had taken their children. The state refused to act until the passage of 48 hours. During this time the complainant’s estranged husband shot and killed their two children and then himself.
The final question is how there can be any benefit in international law for people who experience systemic intimate violence. I propose a theory of non-coercive compliance, which, based on the work of Professors Koh and Reisman, focuses on the impact of international law through norm infiltration. International law is a standard-setting spectrum, to which states can aspire and on which individuals can rely. Fuelled by international actors, NGOs, international bodies and trans-national organisations, international law can effect global change in intimate settings. Specifically, international law human rights law has two functions. The first is an expressive value: international law gives a name to harm that previously fell outside established legal principles and draws a conceptual boundary around such conduct, prohibiting it. Secondly, international law has an implementing capacity, compelling state to modify their laws in accordance with the international standards.
These values of international law are best evidenced in respect of enforced disappearances. Traditionally, the legal remedies of habeas corpus and extra-judicial killings were not available to the families of the kidnapped political dissidents because the state denied involvement. It was only with the development of the concept of enforced disappearances and the lobbying at the international level, that the nuanced nature of this harm was properly understood and an appropriate legal response fashioned. Today the UN working group on enforced disappearances has clarified roughly 1,763 cases.
These benefits are also evident in respect of systemic intimate violence. An analysis of the CEDAW Committee’s reports from 1984 to present day reveals an interesting pattern. Prior to 1992 domestic violence is rarely mentioned in states’ reports to CEDAW or in the CEDAW committee’s responses. After 1992, however, domestic violence becomes the key feature of states’ reports and of the committee’s response. What happened in 1992? This period saw the greatest global call at the time regarding violence against women and the responsibility of states to prevent domestic violence. It culminated in the General Assembly Declaration on the Elimination of Violence against Women.
I analysed three states’ reports to CEDAW before and after 1992, namely, Nicaragua, Sweden and Mexico. In respect of each state the same pattern applies. Prior to 1992 there is no mention of domestic violence. After 1992 the states begin the process of describing law reform, policy creation and the allocation of funding to the problem of domestic violence. So international law not only facilitated a dialogue regarding domestic violence against women at international law but it led to significant legal changes at the national and municipal level.
This is not to overstate international law. Rather it demonstrates that international law works best when viewed as a forum for the creation of norms and standards that, through a process of norm creation and infiltration, can alleviate harm in the most intimate part of one’s life.

Domestic violence as torture

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14 of the European Convention.

For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, the Opuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

As a result, state failures to prevent and redress domestic violence can now be understood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

The Opuz holding is an important milestone in this regard.

The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.

More Torture Files: The United Kingdom Releases Its Own "Torture Papers"

We've blogged on the infamous "torture memo" written by legal advisers telling President George W. Bush that the Torture Convention did not apply to interrogations of Guantánamo detainees. Now the United Kingdom has released 900 papers (so far) revealing Britain's support for and participation in extraordinary renditions and torture.

One of the most startling documents is chapter 32 of MI6's general procedural manual, entitled "Detainees and Detention Operations", which advises officers that among the "particular sensitivities" they need to consider before becoming directly involved in an operation to detain a terrorism suspect is the question of whether "detention, rather than killing, is the objective of the operation".

Reminds me of the McCann v United Kingdom (2005) case before the European Court of Human Rights, in which 3 Irish Republic Army members were summarily shot at point-blank range to make sure there was no possibility they could set off a car bomb. In fact, the UK's struggle against terrorism since 2001 has involved activities that have already been judged to violate the European Convention on Human Rights, in particular the prohibition on torture (see, for example, Chahal v. United Kingdom (1996) on "diplomatic assurances" and torture, and the more recent Saadi v. Italy (2008) decision (prior post); but see, in the UK's favor, its prevention of deportation based on Saadi).
More than just a memo, the torture files come in 4 chapters:
► M16 legal advice;
► Downing Street's role;
► The Whitehall row; and
► The interrogations.
Bonne lecture!

Steps forward for Irish same-sex couples

(Delighted to welcome back alumna Siobhán Mullally, who contributes this guest post)

The Dáil (left), the lower house of Parliament in Ireland, has passed legislation giving formal legal recognition to same-sex relationships for the first time.
The Civil Partnership Bill 2010 passed last Thursday evening without a vote, support coming from all (or most) parts of the political spectrum. It now must be considered by the Seanad.
Under the terms of the Bill, marriage-like benefits will be extended to gay and lesbian couples across a range of areas including property, succession, maintenance, pensions. Further legislation is due to extend benefits in the fields of social welfare and tax.
The status of civil partnership will not provide rights and privileges equivalent to marriage, which remains open only to different sex couples. This distinction has remained because it is deemed necessary to safeguard the protection given to marriage in Article 41(3) of the Irish Constitution (right), which states in part:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The constitutional text does not, however, make any reference to marriage as being exclusively open to different sex couples. Rather, it is legislative and judicial interpretation of the constitutional text that has presumed this exclusionary stance. Much of the debate on the Civil Partnership bill has touched upon the inequalities that will persist on introduction of this new status, and upon the failure to provide for the rights of children within such partnerships.
Despite these shortcomings, the Civil Partnership Bill has been heralded by many as a mark of progress, a contribution to what Minister for Justice, Mr Dermot Ahern, describes as a ‘modern code,’ that marks a break from a past in which sexual orientation discrimination was commonplace. Included within that modern code are the:
► Employment Equality and Equal Status Acts 2000-2004, which prohibit discrimination on grounds of sexual orientation; and
► Prohibition on Incitement to Hatred Act, 1989, which includes homophobic incitement within its scope.
Introducing the Bill, the Minister for Justice noted that it was now time to add to the legal protections in place against discrimination and exclusion, and to officially recognize and affirm same-sex relationships so as to bring to an end the legacy of prejudice and inequality.
Granting official recognition and affirmation brings with it the question of whether a ‘conscientious exemption’ clause should be granted to those whose religious belief and affiliations do not allow for affirmation or even tolerance of same sex relationships.
A proposed legislative amendment, allowing for such an exemption clause, was dismissed, despite last minute interventions by the Irish Bishops’ conference, who argued that the failure to provide for such a clause was unconstitutional, given the limits imposed on freedom of conscience and on social and civil freedom in religious matters. In response, John Gormley, the Minister for Environment and Green Party representative, criticized the Church’s attempt to exert influence on the legislative process, which he noted was reminiscent of earlier eras of ‘church interference’. The debate on conscience exemption, and its swift dismissal, reflects the changing relationship between Church and State in Ireland, and the waning influence of religion in matters of gender, sexuality and family.
The passing of the Civil Partnership Bill follows on from the judgment that a Chamber of the European Court of Human Rights (left) rendered on June 24th in Schalk and Kopf v Austria.
The applicants had complained that the absence of same-sex marriage in Austria violated their European Convention rights, both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). They appealed to the Court to interpret the Convention (below right) in light of present-day conditions, and not to restrict the application of Article 12 to different-sex couples. The Court rejected their argument, noting the absence of a European consensus on same-sex marriage. Importantly, however, drawing on Article 9 of the European Union Charter of Fundamental Rights, the Court took the view that the right to marry was not necessarily confined to marriage between different-sex couples. It nonetheless concluded that:
► The question of whether or not to allow same-sex marriage fell to be determined by national law; and
► States continued to enjoy a wide margin of appreciation on this question.
The Court’s judgment left open the question of whether the absence of any form of relationship recognition for same-sex couples might be a violation of the European Convention.
Significantly, the Court’s judgment extends the scope of Article 8. At paragraph 94, it finds for the first time that same-sex couples enjoy not only a right to ‘private life’, but also ‘family life’:

[T]he Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

Strong dissenting judgments were entered specifically on the Court’s finding of no violation of Article 14 (non-discrimination), suggesting the possibility of change in the future.
For the moment, the Court’s judgment is unlikely to assist the campaign for marriage equality in Ireland. However, it does challenge existing Irish case-law, including the October 2009 judgment in McD v L, in which the Irish Supreme Court found that ‘de facto’ same-sex couples did not enjoy family life within the meaning of Article 8 of the Convention.
Small steps forward!