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.
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
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 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 Act2014 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 theGender 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
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
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 individuals who are seeking refugee status.
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:
What is a ‘well-founded fear’?;
What is meant by the phrase ‘persecution’?;
Exploration of the nexus grounds of particular relevance to the problem question; and
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.
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-the-aftermath-of-paris/ .
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, journalistsand 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.
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/>.
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-terrorisme_b_8824742.html>; 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/2009/6/marine-stewardship-council-MSC.pdf
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).
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-diplomacy-developing-united-nations (last visited 19 December 2015).
#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”. 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) firstname.lastname@example.org
 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>.
Human Rights in Ireland welcomes this guest post from Darragh Coffey. Darragh is a PhD Candidate in the Faculty of Law, Darwin College, University of Cambridge.
The Court of Appeal is currently hearing arguments as to whether a man alleged to have links to the so-called Islamic State (IS) should be deported. While many of the facts of the current case, including the state to which the man is to be deported, remain subject to reporting restrictions, a number of issues are clear: The Government allege that the man in question poses a threat to national security and on that basis seek his deportation. For his part, the man claims that he has previously been tortured in the country to which he is to be sent and that if he is deported he will face a real risk of being ill-treated again due to the allegations of his links to IS, which he denies. Such challenges to deportation orders are not uncommon in European states; a notable example was the United Kingdom’s embattled attempt to deport Abu Qatada to Jordan which was finally successful in 2012.
Like the United Kingdom and all other EU member states, Ireland is a signatory of the European Convention on Human Rights (ECHR). The central legal issue in cases such as this stems from Article 3 of that Convention and the 1989 decision of the European Court of Human Rights in Soering v UK. Article 3 States that ‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ The Soering case established that if an ECHR contracting state expels an individual to another state where substantial grounds exist for believing that he or she would face a real risk of suffering treatment proscribed by Article 3, then the ECHR contracting state would violate that provision by so doing.
The European Court of Human Rights has therefore read an implicit prohibition of return to a risk of torture or inhuman or degrading treatment or punishment into the text of Article 3. Furthermore in 1996 and again in 2008 the Strasbourg Court held that this implicit ban on sending individuals to states where they may be ill treated is absolute. In other words the behaviour of the individual or the threat that he or she poses to the host state, no matter how serious, cannot be taken into account to justify the deportation if there is a real risk that he or she will be ill treated. Article 3 therefore enshrines a very robust and not uncontroversial protection against return to ill treatment.
This means that if, in the case currently before the Court of Appeal, the applicant’s legal team can show substantial grounds for believing that he will be at real risk of torture or inhuman or degrading treatment following deportation, then according to long standing jurisprudence of the European Court of Human Rights –and contrary to the High Court’s finding on Monday– the threat that he poses to Irish national security cannot be taken into account when deciding whether or not he should be deported. If the existence of such a real risk is established the Irish Government simply cannot deport him to the proposed receiving state without violating Ireland’s human rights obligations under the European Convention on Human Rights. On Wednesday, 30 December, the European Court of Human Rights indicated a rule 39 interim measure to the Irish Government, which means that even if the injunction is lifted by the Court of Appeal the Government cannot, without violating the European Convention, deport the man until his case has been fully heard.
This case provides an example of the friction that can often arise between national security and the protection of individual human rights. In many ECHR contracting states deportation is often the preferred option in national security cases. This is because information indicating that the person is a threat may be inadmissible as evidence in a criminal trial or because such a trial may require the disclosure of information that could jeopardise on-going security operations. Because of these sensitivities some governments feel it vital to maintain the ability to deport individuals identified as threats to national security. The restraint of deportations under the ECHR has therefore long caused consternation among some ECHR contracting states where deportation plays a significant role in counterterrorism policy. This has seen the advent of the negotiation of diplomatic agreements with potential receiving states and the use of special closed-evidence tribunals such as the Special Immigration Appeals Commission in the UK. The outcome of the current case may raise important questions about how the Irish legal system is equipped to handle such challenges.
We are pleased to welcome this guest post from Dr Aoife Duffy, Lecturer in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway
On 10 November 2015, a 66-year-old ex Lance Corporal of the British Army’s Parachute Regiment was arrested in relation to the killing of three individuals who died during Bloody Sunday, which resulted in the deaths of 14 civilians following an anti-internment march in Derry on 30 January 1972. Accounting for conflict related violence and killings committed by the security forces in Northern Ireland has been problematic due to the hegemonic position of official discoures related to conflict, underpinned by various denial strategies, as outlined by Stanley Cohen in his seminal work, States of Denial: Knowing About Atrocities and Suffering. In Northern Ireland, a structure of denial was sustained at various points throughout the UK administration and the military-security establishment, including through close cooperation between between senior officers in the British army and the Attorney General regarding the prosecution of soldiers on serious criminal charges. The General Officer Commanding (GOC) the British Army in Northern Ireland, Sir Frank King, met with the Attorney General on 8 January 1974 and subsequently wrote to one of the most senior officers in the British Army, the Adjutant General Sir Cecil Blacker, based at Ministry of Defence offices in Whitehall, about the meeting. In short, General King was reassured by the position taken by the Attorney General, who informed him in no uncertain terms that ‘not only he himself but also the DPP and senior members of his staff, having been army officers themselves, having seen active service and knowing at first-hand about the difficulties and dangers faced by soldiers, were by no means unsympathetic or lacking in understanding in their approach to soldier prosecutions in Northern Ireland.’ Approximately 350 deaths were caused by state security forces between 1969 and 1994, and the army were responsible for 90% of these killings between 1969 and 1974. 54.1% of those killed by the security forces in Northern Ireland were civilians and 84% of these victims were Catholic. General King was informed that only 10% of the cases submitted to the DPP were prosecuted; that borderline cases (he cited the shooting of Joseph McCann) were routinely dropped, ‘unless there was evidence of brutality or callousness on the part of that soldier or evidence that the soldier had clearly, unjustifiably and substantially overstepped the mark in the use of force.’ Continue reading “Penetrating States of Denial: Accounting for Conflict Related Violence in Northern Ireland”→
This weekend (12-13 December) was marked by the conclusion of the much-awaited Paris Climate Agreement. The Agreement has been celebrated as ‘historic’ and as a decisive step in committing all states in the fight against climate change. On the other hand, criticisms against its ‘soft’ legal character and unsatisfactory targets have already been voiced.
Law and Global Justice at Durham and Human Rights in Ireland are co-hosting an interdisciplinary online symposium on the Climate Agreement. We are seeking contributions that address questions including (but not limited to) climate change and human rights, the legal character of the Agreement, international law and scientific evidence, the relationship between the Global North and the Global South in the light of historic wrongs, climate change and the question of refugees. We welcome contributions from law, but also from political science, international relations, geography, climate science, sociology, and other disciplines. We would particularly welcome contributions from the perspective of the Global South and of indigenous communities.
Contributions should generally not exceed 1,500 words and should be sent to Ms Ntina Tzouvala (email@example.com) by Monday 21st of December. Later contributions will also be considered.
We are pleased to welcome this guest post from Thamil Ananthavinayagan, a PhD researcher at the Irish Centre for Human Rights, Galway
“(…) Iuris consultus factus causam
suorum ita dixit ut accusator fieret ipse dominorum (…)“
– Anthony Bowen, in his oration on the occasion of the conferring of honorary doctarate to Nelson Mandela at the University of Cambridge
On the 10th of December 1948 the United Nations (hereafter: UN) General Assembly adopted the Universal Declaration of Human Rights (hereafter: UDHR), the first codified document setting out the universal principles of human rights and the foundational document for the United Nations human rights system. It is the birthday of human rights.
Two years later, in 1950, the United Nations General Assembly declared this December 10th as Human Rights Day, while the world was still recovering from years of war that devastated the landscapes of our cities and our souls. The UN put forth this declaration that recognized the ramifications of human suffering and injustice, and called for December 10th to be a day to celebrate the inherent rights of every person, everywhere. While the UDHR is a non-binding document, its adoption marked the advent of human rights treaties to follow, launching human rights dialogue and sustained efforts to implement human rights worldwide. It was, is and will be a document for: progress.
Dr. Fiona Morrissey completed a PhD in mental health law at NUI Galway in 2014. She is a member of a number of expert panels on mental health and capacity law reform and acts as a reviewer for a number of international journals and the World Health Organisation (WHO). Fiona sits on the National Advisory Committee (Research, Impact and Evaluation workgroup) for Sage (Support & Advocacy Service for Older People). Her national study on advance healthcare directives can be accessed at http://www.sciencedirect.com/science/article/pii/S2352552515001048
Assisted Decision-Making (Capacity) Bill: Why Equality is needed in the Proposed Laws on Advance Healthcare Directives. Some decisions are less equal than others
The Assisted Decision-Making (Capacity) Bill 2013 is due before the Seanad on the 9th of December and is scheduled to be enacted into law this year. This is an important piece of legislation, which may apply to any one of us now or in the future. The Bill aims to secure supports and safeguards for any person who may have difficulty making a decision due to a disability, Alzheimer’s disease, a road traffic accident or a period of ‘mental distress’. The legislation includes provisions for advance healthcare directives, which will allow us to specify future treatment or other life choices in a legal document and/or to appoint a trusted decision-maker, in the event we have difficulty communicating or making a decision for ourselves in the future. In these circumstances, the advance healthcare directive will help your doctor or a family member understand your wishes regarding medical treatment or other life choices and specify who you trust to communicate these wishes or to make decisions in accordance with your beliefs and values. Continue reading “Morrissey on the Assisted Decision-Making (Capacity) Bill and Advance Directives”→