The IMF's strange role as the voice of moderation

Part-PAR-Par8194627-1-1-0When I began teaching International Economic Law in 2007 one of the thematic issues that ran through the course was the relevancy of global economic institutions and in particular the IMF. The question of its continued relevancy emerged from two ongoing critiques. First, there was a downward trend in the use of the Fund’s resources and following from that, its traditional funders sensing a lack of significance incremently reduced the funds available to it. This resulted in the IMF holding sums available to it which were relatively low in comparison to its hey day in the post World War II era. Second, and more significantly, it had developed an extremely bad reputation amongst debtor states which meant that they were loath to approach it for funds. Thus in 2007, the IMF seemed doomed to irrelevancy meaning that its historic role from rescuing economies like the UK in the late 1970s to managing global currencies pegged to the dollar seemed all but over and the influence of its broadcasts on the global economy entirely absent.

Of course much has changed since then, if only from a European perspective, the Organisation has found a purpose, increased resources and, as has been demonstrated by its announcement about the Greek Bailout deal, its opinion and forecasts considered very relevant. But its turnaround from relic of the post-WWII settlement to erstwhile hero of the absurd nature of the Greek bailout deal seems bizarre given the reasons it fell from grace in the early years of the 2000s.

The IMF’s poor reputation stems from two factors, its adoption of the Washington Consensus and its handling of the Asian Financial Crisis and Mexican currency crisis of the 1990s and its interactions with Argentina. The Washington Consensus (which seems to be the basis on which the EU has operated since the start of the financial crisis in Europe) formed a core element of the IMF’s conditionality whenever a state was forced to go to it for funds. Whilst the IMF was at the forefront of its adoption, the World Bank and bilateral donors such as the US also consistently applied its terms. It is fundamentally a neo-liberal approach and its terms include:

  • Fiscal discipline – strict criteria for limiting budget deficits
  • Public expenditure priorities – moving them away from subsidies and administration towards previously neglected fields with high economic returns
  • Tax reform – broadening the tax base and cutting marginal tax rates
  • Financial liberalization – interest rates should ideally be market-determined
  • Exchange rates – should be managed to induce rapid growth in non-traditional exports
  • Trade liberalization
  • Increasing foreign direct investment – by reducing barriers
  • Privatization – state enterprises should be privatized
  • Deregulation – abolition of regulations that impede the entry of new firms or restrict competition (except in the areas of safety, environment and finance)
  • Secure intellectual property rights – without excessive costs and available to the informal sector
  • Reduced role for the state. (from the WHO)

These policies were and continue to be extremely controversial and for many commentators were the cause of economic stagnation in the economies that the IMF (and World Bank) imposed their conditions upon. They were also the reason why states were very reluctant to approach the IMF for funds. Whilst the IMF and World Bank have now moved to the ‘post’ Washington consensus and have accepted that these policies were unsuccessful in returning economies to health – though it must be said that neither organisation has moved tremendously far from these either and their conditionality remains problematic – what seems remarkable is that it is exactly the form of conditionality which the EU is now imposing. Conditions which have been widely accepted, even by conservative commentators, as ineffective.

The curious picture of the IMF questioning the Greek bailout and appearing to be ‘looking out’ for the Greek future whilst the EU is being punitive and stuck in a 1980/90s vision of conditionality ought to raise alarm bells in Brussels. Why an organisation famed for its harsh terms has felt the need to so starkly reprimand the EU needs to be considered by Governments across Europe. The IMF is correct when it says the terms of the bailout will completely fail to benefit the Greek economy and its people, it learned that the hard way by continully failing to produce positive results in economies across the globe by imposing such conditions. Besides the many difficult questions as to democratic legitimacy and control of fiscal policy the blinkered use of a style of economic rescue long considered outmoded suggests that the terms doled out to Greece have little to do with ensuring economic growth but rather a form of punitive action for not unquestioningly following conditions. The EU ought to listen to the IMF’s cautionary tale or perhaps it too risks becoming a point of debate in an international economic law class as to its continued relevancy.

The Embodied Subject: Northern/Irish Feminist Judgments Project

WHB6t5xX_400x400This report of the fourth workshop of the Northern/Irish Feminist Judgments Project is by Sandra Duffy, an LL.M. student in International Human Rights Law & Public Policy at University College Cork.

‘The Embodied Subject’

The fourth workshop of the Northern/Irish Feminist Judgments Project was held in Griffith College Dublin on the 13th and 14th of April 2015. The Project, headed by Aoife O’Donoghue (Durham), Julie McCandless (LSE) and Máiréad Enright (Kent), seeks to add an oft-missed perspective in Northern/Irish jurisprudence by inserting a feminist judge on the bench of the Court in question in each case, and having them write the judgment addressing the issues overlooked or under-considered by the judgments handed down in the case itself.

The theme of the Dublin workshop was ‘the embodied subject’. As with most feminist consideration of the state of embodiment – especially that of women – there is often as much to be found in the silences as in the words. What does the law make of women’s bodies? Where are the gaps in consideration? How does the law address, or not address, the experiences of transgender and queer women – both in legislation, and in judicial opinion? Laws regulating the body, the physical self, can be blind to the social and psychological consequences they carry for the person thus regulated. If the law – as in most of the cases covered during the weekend – operates on a strict sex binary, where those female-assigned at birth are de jure considered female and those deemed male cannot be seen to be de facto female later in life, then the gendered experience of being a woman and experiencing one’s body is the square peg in the law’s round hole. Indeed, as Tanya Ní Mhuirthuile and Ivana Bacik ask in their judgment on Foy v An t-Ard Chláiritheoir, must sex assignation at birth be considered a statement of fact, or a rebuttable presumption?

The female sexed and gendered body forms an object for the law more often than its owner is deemed to be a subject and a participant in those laws. The selection of cases presented in this weekend displayed the judicial attitude to womanhood in all its forms, ranging from reproductive rights to gender recognition to adoption and ownership of one’s identity. The workshop also included cross-disciplinary talks from social scientists and activists which sought to place the question of law and the embodied subject into its fuller social context. The cases under consideration were McGee v Attorney General[1], McKinley v Minister for Defence[2], BJM v CM[3], Foy v An t-Ard Chláiritheoir[4], Barnes v Belfast City Council[5], Zappone and Gilligan v Revenue Commissioners[6], DPP v Tiernan[7], DPP v C[8], CC v Ireland[9], P.M.  v.  St. Vincent’s Hospital[10], and IOT v B[11].

These cases cover a broad spectrum of issues: the directly corporeal (BJM v CM, where the woman in question was treated as a body and nothing more by her ex-husband and the original judge) to the adminstrative (Zappone and Gilligan, two female spouses challenging an inequality in recognition and tax law) to the intersection of the civil right to privacy and the practical impact on health and family from denial of that right (Mc Gee v Attorney General). At times, the original judgments were considered to be broadly fair in their scope, in particular that of McKechnie J in Foy, where the rewriters found themselves in the curious position of being almost satisfied with the original opinion and looking for things to render it complete! Other cases, however, required fundamental change from the ground up. In Máiréad Enright’s opinion in McGee, she found herself breaking down the facts and circumstances of both the plaintifs, the McGee family, and the societal context in which the case took place. Máiréad questioned whether the right to use contraception was correctly identified as a right of the family unit, preferring to see it as a matter of individual privacy. The freedom to regulate one’s family planning could be considered to be a right of ’embodied conscience’ – living one’s civil and political rights through bodily experience.

One particularly egregious original judgment was that in BJM v CM. After having married, BJM was shocked to discover his wife had seriously physical scarring from a bad accident. He claimed that this scarring was physically repulsive enough that he had been tricked into the marriage and that his consent could not be considered informed; therefore, he sought a decree of nullity. Appallingly, this opinion was carried and the Ms’ marriage was annulled. This left CM in a position where she and her family found their lives in upheaval and their seventeen-year household suddenly without legal rights. The feminist judges remarked in particular on the voicelessness of CM throughout the case. The whole proceedings centres around BJM: his feelings and his experiences. CM is reduced to an object over which men are arguing. Indeed, the original judge goes so far as to state that concealing her scarring was to conceal something of ‘the fundamental nature of the person’ akin to a psychiatric illness. CM did not, however, suffer any such irregularity in personality or emotions – but due to her husband’s claimed lack of attraction to her, she was deemed defective enough that BJM could not have given informed consent to marrying her. She is regarded as her body and nothing more. The commentators also spoke about the lack of sexual identity of women before the Irish courts. The Madonna/whore dichotomy is very evident here; CM is either properly modest for not sleeping with BJM before marriage, or she is a dishonest fraud who sought to entrap a man before revealing her ‘dysfunctional’ self. Possibly she is both at once, but we cannot know what she herself was thinking because all the commentary on her life is coming from men – male husband, male doctors, male judge. If the embodied female subject in Irish law has a nadir in terms of respect, BJM v CM may possibly be it.

The interdisciplinary panels interspersed through the delivery of judgments covered issues of women in Irish society ranging from the history of the women politically active around the 1920s in Ireland, to the struggle for women’s right to sit on a jury. They included stories of front-line activism, such as that of front-line campaigner Ailbhe Smyth, and a powerful story from leader of the Survivors of Symphysiotomy support group Mary O’Connor. Most unexpectedly enthralling was the presentation of social geographer Mary Gilmartin, who spoke on ‘Bodies, Borders, and Scales’. She spoke of how the way in which we organise and conceptualise our physical space in society is one of the instruments through which we experience our lives within that society. The hierarchy of our esteem for space, placing cities as centres of power, alienates those without access to such power; similarly, when we consider the world as a collection of ‘more important’ versus ‘less important’ areas, we assign identity to people based on the physical space which they occupy and weigh their existence as more or less relevant than our own. In this way the symbolic value of that person’s physical existence is linked to their assigned place in the world – in Mary’s words, “the body, in effect, becomes the carrier of the border.”

Considering the physical self to own within it the borders of one’s assigned societal identity brings with it another way to understand the experiences of LGBTQ subjects in law. Whether it be a challenge to the legitimacy of one’s marriage or the ability to live without constant worry of being revealed to be transgender, the lives of the queer and trans* community in Ireland have never been easy. The brave women at the centre of the Foy and Zappone and Gilligan cases know that they carry with them the borders imposed on them by society, and in challenging those borders in the courts they opened their lives up to scrutiny and invalidation. The LGBTQ rights campaigns have always involved the assertion of both physical and psychological identity by those involved: the law addresses them solely as the product of their physical bodies in deciding who they are and with whom they may form a family. From a feminist viewpoint, the right to be considered a person in possession of full and equal human rights is essential. The feminist and LGBTQ struggle overlap and intersect, and it is right that we should deconstruct thinking around queer bodies as we do around female-sexed bodies more generally.

In thinking about bodies and their effects and uses, the questions of sexual activity, reproduction, and sexual violence arise. While the third IFJP workshop, in University College Cork, had centred on ‘the mothering subject’, this workshop looked at the effects of sexual regulation in Ireland on the woman as an individual as opposed to the carrier/mother of a child. Contraception was spoken of in the McGee judgment, and Máiréad also gave a colourful account of the condom-smuggling trade over the border in the 1970s. Caroline Fennell and Louise Kennefick had written their opinion on the DPP v Tiernan case, in which a sentence for rape was challenged and questions related to the law of sentencing overall arose. The feminist judges took issue with the views of Finlay CJ in the case, noting that his judgment contained stereotyped views of women and drew distinctions between different circumstances in which rapes occur. They wished to focus more on the role and experience of the victim-witness as an autonomous actor in the trial process (leading them to consider, also, the propriety of using feminist principles to argue for retributive justice for a victim). Eilinóir Flynn and Sinéad Ring looked at another case involving sexual autonomy, that of DPP v C. This case was based on the law around consent to sexual acts. The judges gave a thoughtful, complex look at the idea of consent both per se and as it can be regulated/proven in court. Foremost, again, were the ideas of autonomy and agency of the consenting party. They also noted that discussions of consent, as in this case, can be very heteronormative – just another way in which the embodied self finds itself playing a pre-determined role before the law.

The issue of corporeality is inseparable from the experience of being a woman in a sociolegal context. On a personal level, I took from this workshop a broader understanding of my existence before the law, along with the challenges of viewing the consequences of my own embodiment and that of others with a critical eye. From a wider perspective, being able to read a case with an eye to how the biological sex and true gender of the participants is an exercise which illuminates some repeating themes in Irish law: the body, the mother, the sexuality, the autonomy of choice.

[1]    [1973] IESC 2 (Máiréad Enright (Judge) & Emily Cloatre (Commentator))

[2]    [1992] 2 IR 333 (Joanne Conaghan (Judge) & Fergus Ryan (Commentator))

[3]    [1996] 2 IR 547 (Aideen Ryan & Katie Dawson (Judge) & Christine Ryan (Commentator))

[4]    [2007] IEHC. 116 (Tanya ní Mhuirthile (Judge) & Ivana Bacik (Commentator))

[5]    [2012] NICA 19 (Marie Fox (Judge) & Fiona Cooke (Commentator))

[6]    [2006] IEHC 404 (Fiona de Londras (Judge) & Siobhán Wills (Commentator))

[7]    [1988] 1 I.R. 250 (Louise Kennefick & Caroline Fennell (Judge) & Liz Campbell (Commentator))

[8]    [2001] 3 IR 345 (Eilionóir Flynn &  Sinéad Ring (Judge) & Anna Arstein-Kerslake (Commentator))

[9]    [2006] IESC 33 (David Prendergast (Judge) Cian O’Concubhair (Commentator))

[10]  [2003] IR 321 (Mary Donnelly (Judge) & Claire Murray (Commentator))

[11]  [1998] 2 IR 321 (Katherine O’Donnell & Claire McGettrick (Judges), James Smith (Commentator))

20 Years after Beijing: Taking a few steps back?

UNwomen-Logo-Blue-TransparentBackground-enUN Commission on the Status of Women (CSW) is set to be the biggest conference yet solely dedicated to women’s issues. With 900 participants it has set itself as both a celebration of the 20th Anniversary of the Beijing Declaration and Platform for Action, which is celebrated as a pivotal moment in the progression of women’s rights but also a point of rejuvenation as the process of ensuring gender equality moves forward. Yet, the fault-lines and alliances that have appeared in the run-up to the Conference as well as the potential of push-back against what has stood for 20 years raises a serious points of concern. Could the CSW actually be a moment of regression rather than forward momentum?

The Beijing Declaration and Platform for Action focused on, amongst other elements, Women and PovertyEducation and Training of Women, Women and HealthViolence against WomenWomen and Armed ConflictWomen and the EconomyWomen in Power and Decision-making, Institutional Mechanism for the Advancement of WomenHuman Rights of WomenWomen and the MediaWomen and the Environment and The Girl-child. It also explicitly recognised the role that women’s advocates and feminists had done to bring these issues to the fore, this acknowledgement was key in understanding the role that women had played in attempting realise their own equality and the price that some advocates paid in doing so.

The growing strength of the non-governmental sector, particularly women’s organizations and feminist groups, has become a driving force for change. Non-governmental organizations have played an important advocacy role in advancing legislation or mechanisms to ensure the promotion of women. They have also become catalysts for new approaches to development.

Together with the Millennium Development Goals, (MDG) which, amongst others, aimed to eliminate gender disparity in primary and secondary education…no later than 2015 and to improve maternal health as well as reducing child mortality, these two platforms were considered concrete steps forward. Whilst the implementation of both the Beijing Platform and the MDGs has left a tremendous amount to be desired, for example if we look here in Ireland we can see serious problems with achieving what was set out in both these documents, the presence of such aims gave advocates a strong grounding on which to base their claims against governments and other organisations.

What has struck many as problematic in the run-up to Beijing is the pre-ordained settlements that appear to have been made prior to the CSW itself as well as the roll back that some are calling for. The Women’s Rights Caucus is reporting that the Holy See (which is a non-member permanent observer state), Indonesia, Nicaragua, Russia and the Africa group of countries are attempting to limit references to human rights in the final text and critically to remove mention of the role feminist groups play in advancing gender equality from the DeclarationThe Holy See is also advocating the removal of the standalone gender equality target proposed in the Millennium Development Goals from the declaration. The Women’s Rights Caucus and have asked organisations to support its call to stop the Declaration from being watered down.

These are serious attempts to undermine the achievements of Beijing and the MDGs. Removing references to feminist groups is a clear assertion that feminism lack legitimacy in advocating gender equality, that less radical voices are required and that ignoring feminist voices is an acceptable stance for a government to take. Such a retrograde step against one doctrine which has been so fundamental in achieving what has been gained by women is astonishing. Failing to acknowledge past achievements and a future role is a clear attempt to re-write the history of women and to prevent feminism from taking a lead in the future. Whilst women are used to being written out of history, such a blatant attempt to do so within a history about women seem preposterous.

The advocacy of the Holy See, itself a form of doctrine, and the significant role it has a religious group above all other religions, who must rely on states to make their cases, ought to be seriously questioned. Allowing one religion to have such a powerful voice against women’s substantive equality when it is completely dominated by one sex and one view of the role of women should be a serious issue for the UN. The Holy See’s alliance against feminism, the use of human rights and gender equality as fundamental part of development needs also to be queried by those within the Church. The World Bank and IMF, which are currently leading a campaign against the gender pay gap, have repeatedly stated that women’s substantive equality within the workforce will be a strong driver of economic development. Whilst we can question what the World Bank and the IMF regard as development and their past roles regarding gender, their acknowledgement that restricting women’s choices in the workforce has a negative impact on a whole country ought to be a stronger voice than the Holy See.

Whilst the final outcome of the CSW remains open it is frustrating that 20 years after Beijing women must again fight to have their history, rights and development acknowledged, a step we perhaps had thought had already been taken.

Irish Journal of European Law: Call for Papers

IJELThe Irish Society for European Law recently re-launched the Irish Journal of European Law as an e-journal. The Journal, which has been published since 1992, is a leading international journal on European law edited by Irish scholars and practitioners. The 2014 volume is now available on the Society’s website here.

The Journal – which is blind peer-reviewed – is now issuing a call for original papers for its 2015 volume.

Long articles (indicative length 8,000 – 12,000 words) and shorter articles (3,000-4,000 words), and analyses of any length of recent developments are invited.  While submissions on Irish-European legal issues are of special interest, the Journal welcomes submissions on all areas of European law. In addition to the more traditional form of academic article, comment and opinion pieces on European-Irish affairs with a legal dimension, are also welcomed.

Submissions are to be sent to by Friday 15th May 2015 in WORD format, size 12 font, single-spaced. The referencing style guide is OSCOLA Ireland, which is available online here.

A new Constitutional Settlement for Northern Ireland: Queries from International Law

287px-Uk_map_home_nations (1)This post was jointly written by regular contributor Aoife O’Donoghue and Ben Warwick. Ben is a Graduate Teaching Assistant and PhD candidate at Durham Law School. His research centres on resource constraints and the implementation of economic and social rights. 

The starting gun has been fired on constitutional debate in the UK. The prospect of Scottish independence, potentially increased powers for devolved governments, a new English Assembly, a re-formed relationship with human rights and a reformulation of the relationship with the EU, are all being more or less vigorously discussed. Whilst there has been some public debate about the constitutional issues facing the UK, there remain a number of covert agendas. Each of these agendas represents both threats and opportunities for Northern Ireland. The tendency to define constitutional changes by reference to internal factors is a misguided one. Such an approach neglects the significant external implications of internal debates. Rather, changes to the UK’s constitutional settlement must be situated in the broader regional and international political and economic context. The realities of modern globalisation and commerce, mean that external bodies and countries are both influenced by, and influencers of, ‘internal’ debates and thus cannot be ignored.

For England, and the UK, the electoral fortunes of the Conservative party lurk beneath the surface. Under threat from UKIP, and in arguably long-term decline, the Tories have sought to both capitalise and stave off threats from the Right. The party have undoubtedly seen an opportunity to separate unpopularity in Scotland (the party has just one MP out of 59 potential seats and in contrast to Labour), from relative success in England. Significant devolution to an English Assembly would likely leave the Conservatives (or at least the right of British politics) with a majority. This opportunism can explain changes of heart on devolution.

In Scotland, the covert agendas belong(ed) to the markets. Dominant economic actors vocally campaign(ed) against independence on the basis that it would harm jobs and the prosperity of Scots. This was an important consideration for many, but for the Boards of Directors and CEOs making the threats it was not the primary motivation. Rather, the continued profitability and favourable tax regime for corporations were the unspoken motivation for such a fight against Scottish independence. Companies were concerned, not with the general welfare of the Scots, but with the potential disruption to their healthy profits.

As ever for Northern Ireland, much remains unsaid. There is fear of covert and/or incremental changes that erode cultural identities and (Unionist/Nationalist) identity politics remain an on-going and dominating factor in debates. Besides the internal ‘blockages’, there are also external implications including repercussions for Northern Ireland’s voice in debates on human rights, economic powers, and the division of power in the UK. This is crucial, as a strong voice within the UK affects the province’s capacity to deal with the issues of austerity, social security, rural and urban poverty, policing and employment.

At the Conservative Party Conference in October there was a clearly voiced intention to introduce changes to the UK Human Rights Act (HRA) and the relationship with the European Convention on Human Rights and the associated European Court of Human Rights. It was stated that if changes to that relationship could not be made, a Conservative Government would withdraw from the Convention. As has been noted elsewhere this is a particularly pertinent issue for Northern Ireland as the Good Friday Agreement places the introduction of the HRA as central to its settlement.  Under the settlement the UK agreed to:

complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention,  including power for the courts to overrule Assembly legislation on grounds of inconsistency.

The Irish Government, in return, agreed to incorporate the ECHR into its law and there is no suggestion of a change. The Good Friday Agreement is partially a bilateral agreement between the UK and Ireland, the Conservative proposals would, if enacted, violate international law. Besides legality, courtesy would require the UK to consult with Ireland about such changes, perhaps with a view to releasing Ireland from its obligations. Given that there was a vote in both the Republic and Northern Ireland on the Good Friday Agreement, it is perhaps democratically questionable to change its terms without consulting both constituencies again.

Bordering on the EU

Of further consideration is the potential of the UK leaving the EU and its impact. As the Republic is outside Schengen there is little problem with the open status of the Ireland-UK border. Without wishing to ape the rather ridiculous depictions of what a border with an independent Scotland would look like, should the UK leave the EU and Ireland enters Schengen, it would make the open border problematic. In particular with a dominant aim of UK political actors being to stop inward migration, the border could not be as porous.  Whilst the Irish are (legally) not to be treated as ‘foreigners’ under the Ireland Act 1949 other EU citizens entitled to continue to come to Ireland may pose practical and political difficulties. Further, the entitlement of those born in Northern Ireland to dual citizenship is problematic. If an individual chose to register for an Irish passport they would be able to maintain their EU citizenship even if the UK left. This would be in stark contrast to other UK passport holders in Scotland, England or Wales.

Leaving the EU would also impact upon the Transatlantic Trade and Investment Agreement currently being negotiated with the USA. While there is not space here to discuss the many problematic elements of this trade deal, a UK that sat outside of the EU would leave Northern Ireland without preferential access to the USA. Leaving the EU would also put the UK in an entirely different position within the World Trade Organisation. While currently the UK is an individual member, all of its negotiations are conducted as one EU block. Therefore while the UK would stay as a member of the WTO, it would negotiate as a standalone state rather than part of the world’s biggest market. Again, as the Republic would remain part of the EU’s block in the WTO, it would maintain the many and varied benefits that the EU maintains due to its global economic power.

Goodbye Good Friday

A further indication of the external nuances of the UK’s current constitutional soul-searching lies with border polls. Whilst there has been much talk of a border poll in Northern Ireland, this has largely neglected the voice of the Republic. The Good Friday Agreement mandated a right to self-determination for the people of the Republic in the following terms:

it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland.

It is by no means certain that a vote in the Republic on the matter of unification would bring about a majority of yes voters. No vote took place when East Germany rejoined West Germany, partly because the German Constitution never gave up its claim to all of its territory. The Irish situation differs as a result of the changes to Articles 2 & 3 of the Irish Constitution. Further, it was by no means certain that the West Germans would vote to integrate their East German neighbours. The requirement of self-determination for North and South would mean that even if Northern Ireland voted for a unification of Ireland, there would be no certainty of a united Ireland

There are undoubtedly significant international effects that flow from a renegotiation of the UK’s constitutional position(s). Yet the current internalised approach to considering the constitutional issues is masking the broader effects. From human rights, to the EU, to the TTIP and the Good Friday Agreement, there are significant ramifications that urgently need discussed. Having these debates by reference to the Conservative Party’s self-interest, economic hegemonies, or identity politics can only lead to a transient conclusion to the international issues.

Isis, the Caliphate and new states

 _75935223_iraq_syria_isis_caliphate_20140630_624_v1The rapid advance of Isis, (The Islamic State in Iraq and the Levant/Islamic State in Iraq and Syria or Islamic State in Iraq and al-Sham), its renaming of itself as “Islamic State” combined with the declaration of a Caliphate and added to recent statements made by the regional government of Iraqi Kurdistan around its potential future have brought questions as to the continued existence of Iraq and potentially, Syria, as states to the fore. In their statement declaring a Caliph, Isis have explicitly referred to the Sykes-Picot Pact (the division by the UK and France of former Ottoman Territories during the First World War, for a repudiation of the claim that the colonial period has some role to play, see here) as coming to an end. In doing so, Isis are making use of the coverage of the First World War anniversaries in the West (for example ceremonies this weekend on the 100th anniversary of the assassination of Archduke Franz Ferdinand in Serbia) questioning the aims of that war and the narrative of the so-called “democratic” states standing for freedom against the imperial powers at Europe’s centre but also the legitimacy of the present status of Iraq and Syria from their inception as states following the collapse of the Ottoman Empire. In doing so Isis are attempting to challenge the tenets of legitimacy under which statehood currently operate but perhaps in considering their own claims to statehood ought to consider whether the same tools that brought Syria and Iraq into fruition may be employed again. The broader question for international law is whether this question of statehood ought to rest on apparently ‘objective’ factors that have little to do with internal legitimacy or historical events and ought to be replaced with a normative, perhaps human rights framework, or whether the present state of law is preferable even with its apparent lack of normative code.

Their claim to legitimacy stems quite clearly from an interpretation of Islam that enables Isis to act as they have but within these arguments there is a clear narrative conforming to the traditional claims to statehood and are interesting when set alongside other contemporary debates such as Ukraine and Kosovo. Traditionally international law has not cared as to the internal character of a state and the existence of a theocracy is certainly no bar given the acceptance of the Vatican (Holy See) or Iran as states. Indeed, by the early 1980s most states had stopped recognising governments on the basis that state recognition was what was required for international law and the recognition of governments was a political decision. Recent actions by European states as well as the US and Russia regarding the Arab Spring or the Ukraine does open the possibility that this policy may have changed as the Cold War political exigencies that caused the initial change are no longer relevant. Thus Isis’ character as a government is no bar to statehood. Of course this is not to suggest that other elements of international law such as rights pertaining to women, minorities and freedom of thought or expression would not be violated but rather to clearly argue that this is not related to statehood as generally accepted within international law. EU states did require the former Yugoslav and USSR Republics to conform to human rights protection before recognising them but this has not been replicated with any uniformity since that period. The UN aims at universal membership and thus is highly unlikely it would bar Isis’ Islamic state from membership if it to be recognised as a state.

Statehood as outlined in the Montevideo Convention requires;

(a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states

In their statement today Isis claimed to fill the first and second criteria by making a definite claim to territory and population that runs from ‘northern Syria to the Iraqi province of Diyala north-east of Baghdad.’ Of course a claim does not necessarily reflect reality. Large swathes of these territories have very sparse populations and certainly both Damascus and Baghdad would argue that these borders are contested even if they currently do not exercise firm control over them. While there are no temporal requirements for control of population or territory when these are combined with the other two elements of Montevideo some form of long-term governance does appear necessary. Governments, as already discussed, do not have to conform to any particular form but the normal activities of governance such as control of the use of force or the functioning of utilities combined with some of revenue collection would indicate a government in control. Currently it is unclear as to whether Isis would meet such a standard. The last criteria, the capacity to enter into relations with other states, does not actually require other states to do so just that this is possible. For Isis this criteria does appear lacking if social media is discounted. While of course the entire legitimacy of such criteria as Montevideo could be dismissed by Isis in all probability it is what will be applied by other states. One potential barrier may be the right to self-determination which would require some form of consultation with the populations that are controlled by Isis but in itself self-determination is not a right to statehood. Whether self-determination can put a bar on declaring statehood once the other criteria are satisfied is open to question and has not been resolved by a recent International Court of Justice Advisory Opinion on Kosovo which touched upon this issue.

In contrast to Isis, the Government in Kurdish Iraq appear far better placed to fulfill these criteria though the advance into Kirkuk makes at least some of its border disputable but also gives it a further source of revenue. Their current boundaries are defined, (even if they intend to make further claims in Turkey or Iran), there is a permanent population (albeit with a current influx of refugees), there is a government and this government has representatives in other states, although they are not currently at the status of ambassador. The non-recognition of a new Islamic State or a new Kurdish state does not necessarily mean either the continuation or disappearance of Iraq and Syria. The rump of either can continue, as Ukraine and the former Yugoslav states have clearly demonstrated. While Isis’ claims cause an existential threat to all states in the region the Kurdish question is more problematic for Turkey, Iran and Iraq. The malleability of state definitions leaves open a range of possibilities for those states potentially wishing to recognise the latter over the former but the broader issue of the legitimacy of governments remains a political query where states have to decide whether they are going to claim to have normative values, including human rights particularly with regard to women, or whether statehood will be the de minimus Montevideo requirement only for recognition.

New borders are possible as are new states. The recent up surge of territories claiming statehood (in Ukraine, in Georgia, within Russia, Kosovo, potentially Scotland or the Basque region) may slowly lead to a change in how we go about identifying new states that sets a clear break between the Montevideo criteria and what followed the break-up of the USSR and Yugoslavia, but at present, the law appears devoid of any claim to require a government to be democratically elected, representative or that it grants any form of rights to its citizens.

Crimea, timelines and "Where were you in 1916"

603The variety of timelines available to guide the interested reader through the apparent linear events leading to present problems in Ukraine (similar guides are available for the Arab Uprisings, for example, the Guardian’s interactive timeline) brought to mind a question my father likes to ask when anyone is becoming particularly fervent about politics of any kind ‘Where were you in 1916?’ Asking this question often stops a verbose and highly excited claim about the rights or wrongs of a given political conflict in its tracks. It forces the speaker to check their particular status in proclaiming the absolute correctness of their position. (The actual events surrounding the 1916 Easter Uprising in Ireland being largely irrelevant but being present enabled some to claim their rightness of their perceived truth over others) This very much reminds me of the kinds of statements being made with regard to Ukraine. That it was always part of Russia,  or rather after Catherine the Great took it from the Ottomans under the 1774 Treaty of Küçük Kaynarcathat when it became independent and then, in 1783, part of Russia, it was originally Greek/Viking, that it was a drunken Khrushchev in the 1950s that ‘gave’ Crimea to Ukraine, that we should start with the break-up of the USSR in August 1991 when Ukraine declared independence, the 2004 Orange revolution or, indeed the decision of President Yanukovych in November 2013 to not sign an agreement on trade with the EU.

Picking the starting point matters. From when it is adjudged we should start looking at claims, both legal and political, makes for a variety of arguments more or less worthy of inclusion. The use of history for particular ends or to claim absolute truths is not a new critique but it is time’s use in public international law as part of specific rules which is of import here.

Public international law rules regarding times and lines on maps have some peculiar and longstanding outcomes. For instance, when reading a treaty and deciding on its claims you should look at the law as it stood at the time of its signing. Thus, when looking at the claims to Gibraltar, for example, one ought to examine the  Treaty of Utrecht 1713 in the context of the law as it stood at the time. Even though commentary on that treaty suggests its terms with regard to the status of the various actors were already out of date when it was signed and it seems odd that a war about the Holy Roman Empire ended up trading bits of the Iberian peninsula, it is the law of 1713 that we ought to examine. (Another relevant example is the 1774 Treaty of Küçük Kaynarcathat, between Russia and the Ottoman Empire, where upon Russia rescinding its claims to Crimea it ought to revert to the Ottomans). Another instance is the African Union‘s decision, in its constituent document, to continue with the policy that borders drawn by European colonial powers that characterise African statehood, should stand. No matter that other continents, through war or agreement, largely settled their borders amongst themselves or that examples such as South Sudan or other border disputes, have resulted in mass violence these arbitrary lines stand. Thus, the Congress of Berlin 1884-85 and the period of decolonisation post World War II are the periods from which these borders are settled. 

The one major exception to these rules being Article 103 of the UN Charter, another treaty widely regarded as being out of date upon implementation as it sees inter-state wars as paramount rather than the intra-state wars that followed. The UN Charter puts itself ahead of any treaties signed before or after its creation. So one set of treaty rules looking at a static moment in time with another, namely the Charter, aiming to move both backward and forward through international law’s creation and operation. 

The absurdity of some of these rules is obvious, though their rationale, certainty, is also important to law. Certainty in law, and particularly international law, enables some measure to predict what law entitles, enables, protects, an actor to do or from. Yet, Ukraine epitomises how such claims to absolute truth can be entirely predicated upon choosing one moment. So it is inconvenient to Russia’s claims that its legal assertion to claiming Crimea dates from 1774 and that the USSR’s, a state that no longer exists, internal re-bordering of the 1950s as well as the independence declaration of Ukraine in 1991, suggests that it gave up such a claim. Thus, perhaps Turkey, as the Ottoman successor state, could in fact make some kind of claim to Crimea. Or alternatively, Russia relies on self-determination and replays Catherine the Great’s annexing of Crimea in 1783. Yet, politically, it is perhaps convenient for Putin to claim to be the successor of Catherine the Great as this grants historical lineage to Russian greatness and intervention to protect “Russians” from outside forces.

All of these wranglings largely ignores the individuals throughout Ukraine, including Crimea and relies instead on the form of Great Power brokering that the UN Charter, in its forward and backward temporal claims, was intended to eliminate, though arguable it merely enforced these kinds of structures. Picking one moment as the source of legitimacy and authority is absurd but often it is how international law seeks to settle these claims. Temporal lines and arguments become paramount over any other claims. This is not to suggest that history is not important or worth considering but perhaps that law ought not to be shackled to it.  Perhaps it is time to challenge these temporal claims, to move beyond moments in history that law decides are important, to check the verbosity of claims to legal truth based on a historical issues from which very little actual understanding may be garnered, to maybe to ask Mr Putin where was he in 1783?

Incidentally my father’s own answer to the question as to where was he in 1916 is ‘under the bed.’

UN Commission on human rights in North Korea: A Silent Nation no more?

largestOn February 17th, the UN Commission of Inquiry on human rights in the Democratic People’s Republic of Korea (North Korea) published its Report and it is unequivocal in its account of human suffering. The awful litany of human rights abuse is of such a scale and level that its content and the accounts of the victims harrowing experiences is almost unreadable. Led by Michael Kirby, Sonja Biserko and Marzuki Darusman, the Report left no room for debate as to the extreme character of the North Korean regime and their characteristic exceptionalism that appears to underpin their rationale for treating their citizens in such a horrific fashion. Each of the interviewees gives a harrowing account of their individual stories. The victims of the regime, not frightened in silence, that made it out of North Korea detail the everyday humiliation, deprivation and torture that each, often alongside their family and friends, suffered to a degree which is difficult to entirely comprehend. The numerous abductions of individuals outside of North Korea further illustrates the regime’s disregard for human dignity and the complacency of China, amongst others, regarding both abductions and their record of returning refugees to North Korea. Whilst there always have been reports coming out of North Korea this is first time that a systematic approach has been taken to record and publish a comprehensive account of life within North Korea.

The Human Rights Council mandated Report followed it’s 2013 Special Rapporteur’s report on grave human rights violations in North Korea. The Commission’s  holds North Korea to account based upon the regime’s legally binding obligations as party to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination against Women. The Commission also looked at  the prohibition of refoulement under international refugee law and human rights law. Crimes against humanity were based upon customary international criminal law and the Rome Statute of the International Criminal Court The Commission based its findings on a ‘reasonable grounds’ standard of proof.

Without the co-operation of North Korea, the Report focused on specific rights, paying particular attention to gender-based violations of;

  • Violations of the right to food
  •  The full range of violations associated with prison camps
  •  Torture and inhuman treatment
  • Arbitrary arrest and detention
  • Discrimination, in particular in the systemic denial and violation of basic human rights and fundamental freedoms
  • Violations of the freedom of expression
  • Violations of the right to life
  • Violations of the freedom of movement
  • Enforced disappearances, including in the form of abductions of nationals of other States

The Report had three objectives; investigating and documenting human rights violations; collecting and documenting victim and perpetrator accounts and ensuring accountability. Whilst the degree to which they can ensure accountability is reliant upon a legal and political order beyond its control, enabling a portion of the victims to tell the stories of their own abuses and beginning the process of collecting and documenting the scale and character of the abuse is probably its strongest and most important achievement. According to the Report;

More than 80 witnesses and experts testified publicly (240 confidential interviews undertaken and 80 written submissions received) and provided information of great specificity, detail and relevance, in ways that often required a significant degree of courage.Systematic, widespread and gross human rights violations have been and are being committed by the Democratic People’s Republic of Korea, its institutions and officials. In many instances, the violations of human rights found by the commission constitute crimes against humanity. These are not mere excesses of the State; they are essential components of a political system that has moved far from the ideals on which it claims to be founded. The gravity, scale and nature of these violations reveal a State that does not have any parallel in the contemporary world… a State that does not content itself with ensuring the authoritarian rule of a small group of people, but seeks to dominate every aspect of its citizens’ lives and terrorizes them from within.

The scale and character of the everyday human rights abuses makes the recommendations of the Report unequivocal. While the calls for internal action including acknowledging the scale of the human rights abuse is unlikely to result in any immediate change the other recommendations may bare some fruit. The Commission, for example calls upon China, and other states, to comply with the principle of non-refoulement and international refugee law with regard to North Korean escapees. For many years China has been North Korea’s main supporter but the withholding of an invitation to Kim Jong-un to visit Beijing may lead to a tougher position albeit it will probably block any action by the UN Security Council as recommended by the Report.

The Report recommends that North Korea be referred to the International Criminal Court by the Security Council. (A process which enables the ICC to have jurisdiction even if the state is not part to the Rome Statute e.g. Libya). The fact that the Report specifies the exact bodies, including the Supreme Leader, responsible for violations which include crimes against humanity, would ultimately aid in any prosecutions. Albeit the possibility of this in the immediate future is very low. It also recommends targeted sanctions though due to the dire situation of individual North Koreans’ none which would have any impact on the whole population.

It is easy to be depressed by the Report and the limited character of the immediate outcome. Jonathan Freedland statement that it’s a good time to be a dictator like Kim Jong-un emerges from experience of collective outcry and then inertia. Certainly the fact that both Kim Jong-un’s father and grandfather  died without ever having showing any cognisance, even before we get to being held account for the horrors they inflicted on their people, does not give much hope.  Indeed, Freedland in pointing to Syria or indeed if we look beyond to South Sudan, the Central African Republic, the aftermath of the civil war in Sri Lanka or the lives of individuals in Gaza, a terrible picture of accountability emerges. This is particularly disappointing when action is blocked by one of the Permanent Members of the Security Council. Nonetheless, while Freedland  has an important point, it is not as good a time to be a dictator as it was during the Cold War. The protection of dictators now only goes so far, individuals have been held to account in states and circumstances that would have seemed unimaginable only 20 years ago. Philippe Sands argues that this could be a slow burner, that eventually it is possible that the regime will be held to account but in the mean time I want to suggest that actually the most important aspect of the Report are the stories that the individuals told.

The process of producing this detailed Report gave a space to the hundreds of victims to not only tell their own stories but also those of the individuals who will never be able to testify to their experiences. The people of North Korea have largely been silent for the past fifty years. The character of the regime has meant that almost uniquely in the World there are 24 million voices that are never heard. It is impossible for an event such as the Arab Uprisings to occur. Mass communication, other than the regime’s own does not exist, North Koreans do not travel, their authors do not publish books beyond the state, their intellectuals do not become involved in global debates, young North Koreans have absolutely no access to social media and their limited education means indoctrination to an extent that even understanding how to use such methods does no exist. The picture above of North Korea at night shows a state where 24 million people sit in the dark each night. While some media has been smuggled in from China, children of the elite have been educated elsewhere and escapes have been made, the vast majority of North Koreans remain silent.

Very often, we rush to international criminal law to hold the perpetrators to account without giving space to the victims that get lost in the criminal process. This Report put the victims at the centre of the Report, it has produced a repository of these accounts that is freely accessible, it has allowed people to tell their own stories which may, for some, be more important than seeing Kim Jong-un in the dock at the Hague. This is an immediate success and one which the law is not typically good at achieving. These stories now are not part of some vague statistics of death and inhumanity, instead they are individual records of horrendous atrocity that demand to be heard over the pomposity of the perpetrators and their protectors.

Review of Ireland's Foreign Policy Announced

dfalogoThe Department of Foreign Affairs has announced a full review of Ireland’s Foreign Policy and External Affairs. This review follows the present Government’s statement of strategy 2011-2014 which included developing Ireland’s economic interests, contributing to peace and reconciliation on the island and contributing to peace, security and human rights globally. Each aim had specific performance indicators, many had to measure, though others such as Chairing the OSCE and election to the UN Human Rights Council were more substantive.

This full review tackles a broad range of issues though the public consultation document’s questions does not substantively address the underlying principles of Ireland’s approach to the world outside its borders. Nontheless, it is a key opportunity to question the foundations of Ireland’s traditional foreign policy including ‘military’ neutrality, the triple lock system, approaches to economic organisations as well as economic and social rights particularly post bail-out, political and cultural rights, peacekeeping and Ireland’s role in promoting UN Women as well as security and governance questions in the global political and legal order, if the questions posed by the document are interpreted beyond some of their narrow guidance.

The Public Consultation document is divided into a number of questions tackling individual aspects of foreign policy including: promoting Ireland’s interests and values although it is somewhat unclear how these were originally identified, examining Ireland’s approach to emergent powers, ensuring Ireland’s voice in the EU and promoting its interests, how Ireland contributes to a rule-based system of global governance, within the UN, which makes clear that this is where Ireland will situate itself, how to build bilateral economic links and using the embassy network to do so, Ireland contribution to development particularly with the end of the Millennium Development Goals in 2015, promoting peace and reconciliation in Northern Ireland, engagement with the diaspora and finally, promoting Ireland’s image abroad.

This is a very broad range of issues and while the consultation does not appear to tackle or provide an opportunity to consider the historical and political assumptions evident in the questions that it poses it does provide a potential opportunity to consider Ireland’s role both regionally and globally. If fully considered its outcome maybe and Ireland that is perhaps a little less hesitant to be vocal in issues it claims to hold precious but also take more seriously when Ireland is found not to be following the rule-based order it claims to uphold, even when to do so may be embarrassing.

Full details are available here and the closing date for submissions is February 4th 2014.

The Commonwealth and Sri Lanka: Perils of Joining Global Clubs

imagesThe recent Commonwealth Summit, held in Sri Lanka, attracted a tremendous amount of attention, far more than is normally paid to this organisation. Sri Lanka’s dismal human rights record during and since the final Governmental push against the Tamil Tigers in the north of the country has been well documented by the media, NGOs and the United Nations. While the human rights violations and war crimes committed in 2009 and the continuing humanitarian crisis remain unpunished the recent Heads of Government Summit meeting, chaired by Prince Charles, in the Queen’s absence, as head of the Commonwealth, offered an opportunity to the Commonwealth’s other members to reproach the Sri Lankan Government for its crimes and abuses. Three alternative approaches were taken. On one side India, alongside Canada and Mauritius boycotted the event in some form or altogether. Other states, most particularly the UK and Australia chose to attend but on the proviso that they would both visit the Tamil region and voice their concerns with the Sri Lankan Governments, while other states, perhaps the majority of members, chose to not bring the subject up at all. This raises the question of both membership of international organisations and the treatment of members by such organisations. Ought the organisation take a stand when its purported aims and purposes are clearly violated by a member or should it, like the United Nations, aim for universal membership in order to attain its full purpose.

The Commonwealth, as an international organisation, is in many ways unique. Unlike most other inter-governmental organisations it lacks legal personality and membership is based upon a very fluid idea of conforming with its aims of democracy, human rights and the rule of law as outlined in its Charter. It’s historical link to the British Empire no longer holds traction in its operation. This is reflected both in its name change from the British Commonwealth and the fact that some of its 53 members, for example Rwanda, are neither former colonies of the UK nor, upon membership, English speaking. While the Queen stands as its head, it also has a large number of Republics, for example India, among its members. While its most famous element is probably the Commonwealth Games, to be held next year in Glasgow, it does operate on a much broader platform which, as previously mentioned, aims to uphold democracy, human rights and the rule of law at its core, which might suggest that Sri Lanka may potentially have an issue with its membership. Historically, the Commonwealth has been active with regard to members meeting the these criteria, most particularly for violations of the Harare Declaration. Nigeria was suspended  following its execution of Ken Saro-Wiwa just prior to a Heads of Commonwealth Summit.  Pakistan has been suspended on several occasions, for example, following the military coup by Pervez Musharraf. Fiji have also been suspended several times. This appears to suggest that suspension for violations of the Harare Declaration, of both large and small members, for violations of democracy and human rights, even on the eve of summits, has a precedent for the organisation. It also suggests that holding a summit in the capital of a country that several members have cause to call for suspension from the organisation should raise serious questions for the organisation. Though, the present Director General of the organisation, Kamalesh Sharma appears not to regard it as such a serious issue, indeed it has been alleged that he did not pass legal advice that Sri Lanka had violated the Commonwealth Charter before the Summit;

In the time to come, I trust that people will see… that indeed very significant advances have been made in the interests of the people of Sri Lanka.

Of course the Commonwealth is not the first organisation to face such an issue. The United Nations, after an initial phase of Cold War politics on membership, delaying several states, including Ireland, from joining, has gone for universal membership. This is despite several member having been found to be in violation of the UN Charter under Chapter VII (Security Council binding resolutions) of the Charter. Articles 5 and 6 of the UN Charter allows for suspension or expulsion. There is no provision for leaving the UN in the Charter. Only one state Indonesia has sought to do so, but it sought to rejoin very quickly and was treated by the organisation as if it had not left. Several states have been excluded from UN activities, for example South Africa, under apartheid was excluded from General Assembly activities, while Serbia and Montenegro was prevented from acting as the successor state of Yugoslavia. The Council of Europe has never suspended a member although it has suspended Belarus from its guest status due to its undemocratic character. There is no provision for full suspension from the EU. Under Article 7 of the Treaty of the European Union there may be suspension of certain rights if a member persistently breaches the EU’s founding values (respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities).  This has never been used, though the 2000 election of the far right Freedom Party in Austria, came the closest. Within the African Union Egypt has been suspended since the coup of 2013, Madagascar since 2009, Guinea-Bissau since 2012 and Central African Republic since 2012. This makes the African Union the most active suspender of membership for violations of its Charter. This kind of activity by the African Union also precludes claims that such suspension is only a tool of Western States attempting to impose their standards on other countries.

The UK Government in explaining its rationale for attending the Summit, Prime Minister Cameron stated that:

I will be clear with Sri Lankan President Rajapaksa – it’s time the appalling & chilling events in his country are investigate

This was supplemented by Foreign Secretary William Hague’s argument that engagement is necessary to ensure that Sri Lanka permits an independent investigation (whether international or not appears to be unsettled) does hold some wait. Indeed it could be argued that like the United Nations it is better to have everyone present and debating than outside and not listening. Nonetheless, in an Organisation such as the Commonwealth, that has a history of suspension the lack of suspension in this case looks like a tacit agreement that what has happened does not reach the same standard of violation as committed by Nigeria, Pakistan or Fiji, yet arguably the Government in Sri Lanka’s continued actions are just as, if not more significant than these countries. The evidence produced by the United Nations is just one example of how clear the matter has now become. Further, in holding the summit in Colombo, it certainly seems to put clear water between it and those states previously suspended. This is a great pity as it places the Commonwealth’s recent position as a strong supporter of human rights into disrepute. While organisations can chose their courses of action when it comes to suspension, once a precedent is set, as it was here, to not take action has a much more serious consequence of enabling impunity to continue.