Call for Contributions: Paris Climate Agreement

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 (konstantina.tzouvala@dur.ac.uk) by Monday 21st of December. Later contributions will also be considered.

Call for Contributions: Paris Climate Agreement

Hungary’s Border Control Actions: Past the Borderline of International Law

 

Bríd Ní Ghráinne is a lecturer in International and Refugee Law at the University of Sheffield. She holds a DPhil from the University of Oxford and an LLM for Universiteit Leiden. She can be contacted at b.a.nighrainne@sheffield.ac.uk. A shorter version of this article is available at the Oxford Human Rights Hub blog.

 As the European refugee ‘crisis’ worsens, the Hungarian government is resorting to more extreme border control measures that test the parameters of international law. The Guardian reported on 17 September that Hungary had fired gas canisters and sprayed water at crowds of frustrated refugees who had briefly broken through the fence that separates Hungary and Serbia. It was also reported that asylum-seekers’ claims were being assessed and rejected ‘within minutes’. These reports have ‘shocked’ the international community, and the purpose of this brief piece is to give an overview of the legal issues engaged.

There are three separate legal regimes that bind Hungary in respect of these events. International law, and in this case, the 1951 Refugee Convention, takes primacy for reasons that will not be discussed in detail here. European Union Law as well as the 1950 European Convention of Human Rights are also relevant as Hungary is party to the EU and the Convention.

Regretfully, history has shown us that rejection at the frontier is not an uncommon response in cases of mass influx of refugees, such as in April 1999, when Macedonia closed its border to Kosovar refugees at the Blace border crossing. Article 33(1) of the 1951 Refugee Convention, to which Hungary became a party in 1989, provides that no-one shall be expelled ‘in any manner whatsoever’ to the frontiers of territories where their lives or freedoms may be in danger. This provision applies to recognised refugees as well as asylum-seekers, and there is strong academic consensus that this provision applies to those presenting themselves at the border, as is the case in Hungary. However, whether the lives of the refugees who have been pushed away from the border with Serbia are now in danger is difficult to tell and therefore it is unclear if Article 33(1) has been engaged on this occasion. If they eventually have to return to Syria (if that is where they came from), then there has certainly been a breach.

A stronger argument can be made that Hungary’s ‘pushback’ actions are in breach of EU and European Human Rights Law. The Dublin III Regulation, which provides that the first EU country in which an asylum seeker arrives has responsibility for determining that asylum seeker’s status, does not render Hungary’s actions legal. Thus if another EU country has been entered prior to arriving at the Hungarian border, Hungary does not necessarily have the right to refuse asylum. Under international law (as opposed to EU law), there is no obligation incumbent upon a refugee to make an asylum claim in the first country of arrival. Further, many of the asylum-seekers trying to cross the Hungarian border would have first arrived in Greece, which does not have a functioning asylum processing regime. Thus Hungary would be responsible for deciding the claim, as set out in the Dublin III regulation. Moreover, the European Court of Human Rights found in the case of MSS v Belgium and Greece [2011] that sending an asylum seeker from Belgium to Greece (in the application of the Dublin Regulation) was in breach of the European Convention on Human Rights. This was because the conditions in Greece violated Article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment

Hungary’s argument that Serbia is a ‘safe third country’ also fails upon scrutiny. The safe third country concept provides that asylum need not be granted in the state in which the application was made, provided an alternative state is willing to accept the refugee. Whether sending refugees to a third country is a breach of international law depends on whether effective protection is available in that country. A report by Amnesty International from July 2015 indicates that this is not the case in Serbia, where amongst other factors, refugee recognition rates are extremely low.

The reports of asylum claims being dealt with within ‘minutes’ as reported by the Guardian are also worrying, particularly because there seems to be no effective appeals system and refugees are given information only in the Hungarian language. These actions are arguably a breach of both the 1951 Refugee Convention and the EU Asylum Procedures Directive (Council Directive 2005/85/EC). Although the 1951 Refugee Convention does not formally set out the procedures involved in the determination of refugee status, Goodwin Gill and McAdam in their text The Refugee in International Law (OUP, 2011) argue that the Refugee Convention’s object and purpose of protection and assurance of human rights strongly support an obligation to adopt of effective internal measures. This was the position of the Executive Committee (ExCom) of the United Nations Refugee Agency (UNHCR), which in its Executive Conclusion No. 8 (XXVIII) (1977) set out a range of procedural guarantees to be followed in the determination of asylum proceedings; including that (i) Applicants should receive the necessary guidance as to the procedure to be followed; (ii) Applicants should be given the necessary facilities, including interpreters and contact with the UNHCR, to submit their case; (iii) failed asylum-seekers should be given a reasonable time to appeal and they should be allowed to remain in the country while appeal is pending.

Similarly, the Asylum Procedures Directive guarantees access to a fair and efficient asylum decision and it explicitly applies to applications made at the border. It mirrors the standards set out by the ExCom above, and goes into significant detail regarding the content of the rights granted, such as the conditions under which an interview must take place and the scope of legal assistance and protection. If the allegations of asylum applications being rejected ‘within minutes’ are true, it is highly likely that Hungarian authorities have not complied with these EU and international legal standards.

Finally, it is necessary to examine the legality of the use of tear gas as reported by the Guardian to force migrants back from Hungary’s border. According to the European Court of Human Rights case of Abdullah Yaşa and Others v. Turkey [2013], the use of tear gas in itself is not necessarily a violation of the Convention where a gathering is not peaceful. In the Yaşa case, the gathering was deemed to be ‘not peaceful’ as the demonstrators were throwing stones, as was reportedly the case with the migrants at the Hungarian border. However, the European Court of Human Rights also found that the use of tear gas can be a violation of Article 3 of the Convention where excessive force is used, for example, where tear-gas grenades are launched (Yaşa), or where tear gas is used on someone deprived of their liberty (Güneş v. Turkey [2012]). As the exact circumstances surrounding the use of the tear gas at the Hungarian border is not clear, it seems difficult to come to a conclusion whether the Hungarian authorities’ actions in this respect were unlawful.

In sum, the actions of the Hungarian authorities in allegedly dismissing asylum applications ‘within minutes’ and in rejecting refugees at the frontier are appropriately condemned as a violation of International, EU, and European Rights Law.

 

 

 

Hungary’s Border Control Actions: Past the Borderline of International Law

Hearing with the Delegation for Women’s Rights of the French Senate and National Assembly on Ireland’s Abortion Legislation

We are pleased to welcome this guest post from Claire Nevin.

On the 17th January, 1975, France decriminalised abortion with the passing of the Loi Simone Veil. Forty years later, and in stark contrast to a much more liberal European consensus on abortion and international human rights norms, Ireland remains one of a small minority of countries, including Malta and Poland, which stubbornly cling to oppressive abortion legislation. In the case of Ireland, a woman is liable for a fourteen year prison sentence if she aborts in Ireland.

On the 7th September 2015, the Senator for French Expatriates, Olivier Cadic, was in Dublin on a constituency visit. As Senator for French Expatriates, his mandate requires him to visit specifically allocated countries in order to keep up-to-date with matters relating to the French community abroad. The recent forty year anniversary of the passing of the Loi Simone Veil caused him to take an active interest in the continuing criminalisation of abortion in Ireland and he requested to meet with someone who could inform him about the consequences of Irish abortion legislation during his visit to Dublin. 

Having recently graduated with a master’s degree in human rights and democratisation from the European Inter-University Centre for Human Rights and Democratisation, where I wrote my master’s thesis on Irish abortion discourse, and having previously met the Senator in 2012 while I was a history student in a Parisian university, he was pointed in my direction. During our meeting, he was shocked to discover the oppressive nature of Ireland’s abortion legislation. He was particularly horrified to hear of tragic cases such as Savita, Ms. Y and PP v. HSE, stating that he was not aware of the full extent of the harm inflicted on women’s lives and wellbeing by the 8th amendment.

Senator Cadic expressed the belief that increased pressure from fellow EU member states could play a positive role in pushing for a change in Ireland’s abortion legislation, as so far, EU member states and the European Court of Human Rights have taken a conservative approach to this issue, based on the argument that Ireland’s exceptionalism regarding abortion falls within its ‘margin of appreciation.’ Senator Cadic wants to play a role in attempting to reverse this trend and promote greater consciousness-raising amongst EU member states that Ireland’s abortion legislation and its resulting consequences constitute an urgent human rights issue that deserves due attention at European level.

Senator Cadic and I decided that appealing to EU member states’ vested interest in protecting the rights of their expatriates was an angle that could convince fellow member states that the continuing criminalisation of abortion in Ireland also affects them and their citizens. In order to achieve this and promote greater awareness of and concern for this issue at European level, we decided to stress that freedom of movement within the European Union and the popularity of university exchanges such as the Erasmus programme, result in women who choose to come to Ireland having less rights than in their home countries.

Following on from our meeting in Dublin, Senator Cadic invited me and elected representative for French Expatriates in Ireland, Laurence Helaili, to Paris to speak at the French Senate in front of Senators and the French Delegation of Women’s Rights about Ireland’s abortion legislation. The aim of the visit would be to establish the role that France could play in promoting greater dialogue between Ireland and fellow EU member states on aligning Ireland’s abortion legislation with European consensus and international reproductive rights norms. The 28th October was chosen for the hearing at the Senate; the 28th October 2015 being the third anniversary of the death of Savita Halappanavar, who died as a result of the ‘chilling effect’ of the 8th amendment on Savita’s doctors ability to intervene and provide her with a medically necessary and potentially life-saving abortion.

The meeting with the Delegation for Women’s Rights, presided over by former Minister for the Environment, Senator Chantal Jouanno, was an extremely productive one. Having listened to my presentation on Ireland’s abortion legislation and specific examples from recent years which demonstrate it to be an inherently flawed and harmful piece of legislation, Senator Jouanno did not hesitate to tell me that she feels ‘very afraid for French women living in Ireland.’ By the end of the day, I was starting to get used to being met with disbelief and indignation as I described and answered questions about Ireland’s approach to abortion. This initially surprised me as I had taken for granted that members of another EU member state’s Delegation for Women’s Rights would have been aware of such a glaring example of exceptionalism on a human rights issue within the European Union.

The Delegation for Women’s Rights were of the opinion that more information and greater consciousness-raising within the European Union would be necessary in order to establish dialogue between Ireland and other member states on the need to repeal the 8th amendment and replace it with medically sound and accessible abortion legislation that coheres with human rights standards in the area of sexual and reproductive health. To that end, the Delegation decided to inform French citizens intending to move to Ireland of the rights that they would no longer have regarding their lives, health and choices, upon arrival in Ireland. This will be done by including a section detailing Ireland’s abortion legislation on the information page for expatriates of the French Ministry for Foreign Affair’s website. Senator Jouanno will also write to the French Ambassador to Ireland so that women already in Ireland can be informed and know that their embassy will support them if they need any information.

The day after my visit to the French Senate, I was invited to visit Amnesty International France’s headquarters to discuss the events in the Senate, along with Amnesty’s ongoing My Body My Rights Campaign. Yves Prigent, who is responsible for Amnesty France’s involvement in this campaign, stated that the approach undertaken at the Senate in order to lobby for greater awareness of and pressure to change Ireland’s abortion legislation at European level by appealing to member states’ mutual interest in protecting the lives and health of their expatriates in Ireland, was an ‘ingenious approach.’

Based on such positive feedback and on the receptiveness of the French Senators and Women’s Rights Delegation, I decided that this work should be expanded and built upon by liaising with the embassies of other EU member states in Ireland, with the aim of establishing cooperation along the lines of that which resulted from my meeting at the French Senate. To that end, I am currently in talks with Irish pro-choice organisations about co-signing a letter with that will be send to embassies in Ireland, encouraging other EU member states to take similar interest in the lives and health of their female expatriates. In the letter, I will request to meet with ambassadors and encourage them to take similar steps to France in ensuring that their expatriates are informed of the risks they run in Ireland as a result of the 8th amendment.

Finally, a more political approach would also be advantageous to ensure that the visit to the Senate will resonate with Irish political parties in the run up to the General Election. The letter to the ambassadors will therefore be followed by another letter, also co-signed by pro-choice organisations, which will be sent to all of the Irish political parties to inform them of the steps taken at the French Senate and of the follow on work being done to encourage other member states to take a similar approach. We will highlight the potentially harmful repercussions of such negative perceptions of Ireland abroad, particularly in light of Senator Jouanno’s comment about being ‘afraid’ for French women in Ireland. We will seek responses that clearly outline how parties plan to approach the abortion issue and what steps they will take to align Ireland’s abortion legislation with international human rights standards.

 

Hearing with the Delegation for Women’s Rights of the French Senate and National Assembly on Ireland’s Abortion Legislation