Understanding the Increases in Direct Provision Allowance for Asylum Seekers

END DPFrom August 2017, asylum seekers in Ireland will receive increases to the direct provision allowance payments. For adults, this is the first increase to direct provision allowance in 17 years. For children, this is the second increase in direct provision allowance since 2000. Adult asylum seekers and child asylum seekers will now receive €21.60 per week, an increase of €2.50 for adults, and an increase of €6 for children.

In June 2017, I submitted a Freedom of Information (FOI) request to the Department of Social Protection seeking to understand what the rationale for these small increases were. The Department’s response to the FOI request, provides some further understanding as to why the the child direct provision allowances were equalised, however the documentation received fails to provide a clear rationale for the increases in adult direct provision allowances.

Before getting to the most relevant documents, it is important to note that the McMahon Report on direct provision made very few unqualified recommendations: but did in an unequivocal manner recommend that adult asylum seekers be provided with an allowance of €38.74 per week, and children with an allowance of €29.80 per week in June 2015. The increases in direct provision allowance fall far short of this recommendation. (I should acknowledge my significant concerns regarding the McMahon Report and its recommendations from a human rights perspective. See Subprime for excellent analysis on the McMahon Report and its impact. See also Doras Luimni’s analysis of improvements with the direct provision system). In July 2017, the Department of Justice has claimed in its final progress report on the McMahon Recommendations that 98% of all the recommendations from the McMahon report have been implemented, or are in the process of being implemented. Some questions have been raised by NASC in relation to the Department of Justice claims on their 2nd progress report (which stated 92% of all recommendations implemented). Focusing solely on direct provision payment, calculations by Department of Social Protection on 08 June 2017, noted that the cost of implementing the McMahon direct provision increases would be under €3.7 million per year [See document [1] here]. Continue reading “Understanding the Increases in Direct Provision Allowance for Asylum Seekers”

Understanding the Increases in Direct Provision Allowance for Asylum Seekers

Asylum Seekers and the Right to Work: The Supreme Court Decision

Supreme CourtBy virtue of section 9(4) of the Refugee Act 1996, asylum seekers are absolutely prohibited from seeking or entering employment in Ireland. This provision has now been replaced by section 16(3)(b) of the International Protection Act 2015.  This provides that an asylum seeker,

shall—….

(b) not seek, enter or be in employment or engage for gain in any business, trade or profession…

Is this absolute prohibition on asylum seekers from entering, seeking or being in employment unconstitutional. The Irish High Court said no. The Irish Court of Appeal said no (see Maria Hennessy’s analysis of these decisions here).  The Irish Supreme Court has answered yes. Continue reading “Asylum Seekers and the Right to Work: The Supreme Court Decision”

Asylum Seekers and the Right to Work: The Supreme Court Decision

Human Rights-Based Integration Policy and the New “Migrant Integration Strategy”

We are delighted to welcome this guest post from Leanne Caulfield, research assistant at Maynooth University on the IHREC-funded project “Integration Policy in Ireland Through the Lens of Human Rights and Equality”.

In January, Professor Mary Gilmartin and Dr. Clíodhna Murphy (Maynooth University) commenced work on an Irish Human Rights and Equality Commission funded research project which focuses on the development of a human rights-based integration policy framework for public bodies. One aspect of the research involves the collation and analysis of public bodies’ existing policies relating to migrant integration, diversity or interculturalism. In evaluating public bodies’ integration policies, it seems fitting to turn firstly to the Migrant Integration Strategy published by the Office for the Promotion of Migrant Integration in February of this year. Continue reading “Human Rights-Based Integration Policy and the New “Migrant Integration Strategy””

Human Rights-Based Integration Policy and the New “Migrant Integration Strategy”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

imagesThe length of time that asylum seekers reside within direct provision accommodation, continues to cause significant concern, as it has done so for almost seventeen years.  The practical impact of the implementation of the limited recommendations contained within the  McMahon Report still remains to be fully seen. The Minister for Justice and Equality has stated that 80% of all recommendations made by the McMahon Report are implemented or are being implemented. However, this claim has not to date been backed up with comprehensive assessment from the Department of Justice.  The commencement of the International Protection Act 2015 on 31 December 2016, will hopefully ensure that persons in the protection system receive a fair, procedurally proper and clear decisions on whether they qualify for protection in a timely manner. However, as noted by David Costello, Chief International Protection Officer at a seminar last week, there are 4,000 cases to hand in the International Protection Office (IPO) due to the commencement of the International Protection Act. [With thanks to Fiona Finn, CEO of NASC for making me aware of this]. Oldest cases will be decided first. Those already with a negative determination of refugee status by the now abolished Office of the Refugee Applications Commissioner under the old law, will return to the IPO for determination of their subsidiary protection claim. If subsidiary protection is rejected by the IPO decision maker, then both refugee and subsidiary protection appeals will be considered by the International Protection Appeals Tribunal. Whether this impacts slightly or majorly on timely and fair delivery of protection decisions remains to be seen. A case decided last week may have significant impacts on the right to a timely decision on a protection claim. Continue reading “Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times”

Languishing in Direct Provision: Rights in ‘Reasonable’ and ‘Unreasonable’ Times

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

This post is authored by Dr Darren O’Donovan, Senior Lecturer in International Law, Administrative Law and Human Rights, in  LaTrobe Law School, Melbourne. 

A lot of Irish media discussion in the preclearance debate has begun to feature rhetoric such as Ireland can’t “let the United States operate preclearance given the new executive order”, or that “Ireland should make a statement and close preclearance”. Opponents (they would call themselves realists) would argue that as a small country with a small economy this is far too dramatic a foreign policy step. To debate the legality of preclearance fully however, we need to emphasise that United States obliged, under international law, to operate its preclearance in line with the bilateral agreement between Ireland and the United States signed in 2008.

In this post I want to therefore frame questions for the United States government, and for use by United State citizens. The big one is of course simply: Is the United States in breach of its international legal agreements with Ireland by applying the executive order in Irish airports? The key provision of the 2008 Agreement Article II (1) which states that:

“Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland and, where applicable, the United States.”

As we have discussed in an earlier blogpost there are a range of potential, to be explored, arguments as to why the application of the executive order within Ireland’s jurisdiction may be unlawful under Irish law. What is significant however, is that we in Ireland cannot simply say that US law is a matter for US authorities. US law in fact sets the scope of their international legal obligations towards us, and it may even require us to give redress to some individuals (see question 4 below). We need to fold the United States’ bilateral obligations into the debates about preclearance.

Questions for the US Embassy/State Department:

  • As under the Article II of the 2008 Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under Irish law, what steps have you taken to ensure that the application of the executive order does not exceed the terms of the 2008 Agreement?
  • As under Article II of the Agreement, the scope of your authorisation under Article V to carry out preclearance cannot extend to actions which diminish the rights of individuals under United States law, can you confirms what steps you have taken to confirm that the provisions of the executive order are compliant with United States law?
  • In the event you determine the executive order is not compliant with Irish law, are you willing to commit to not applying the executive order in preclearance areas at Dublin and Shannon Airport?
  • Given the close and abiding bilateral ties between the United States and Ireland, is it appropriate for the executive order to be applied in Irish airports while it is currently before the United States courts? We refer you in particular to Article IV(2) which appears to require Ireland to provide a system of redress in event of the “unlawful exercise of powers associated with the administration of preclearance“. This Article is not limited in its express terms to the unlawful administration of Irish law . Can you provide your view of the extent to which the Government of Ireland may be liable to provide redress for the actions of US government officials under this Article?

Ireland: The Supporters of the Preclearance System

What this post attempts to show is that being a supporter of preclearance means actually enforcing the agreement we made in 2008, and exploring potential United States’ breaches of it. It is difficult to imagine Irish parliamentarians not supporting the principle that preclearance only extends to the scope of the 2008 Agreement. Any Irish legislation which implements this principle does not ground any United States entitlement to immediately modify or withdraw from the 2008 Agreement. It would enjoy only its usual right to withdraw after one year. It should, however, be noted that in the event the United States is in material breach of the treaty, Ireland enjoys the right to suspend or withdraw from the 2008 Agreement after a brief period of consultation (as per Article 60 of the Vienna Convention on the Law of Treaties).

Is the United States in Breach of the Air Transport Preclearance Agreement 2008?

Q & A: US Preclearance Procedures in Ireland and the US Presidential Executive Order

This post has had input, or has relied on some ideas, from Fiona de Londras, Mairead Enright, Colm O’Cinneide and Darren O’Donovan.

Q1: What is the effect of the Presidential Executive Order that bars refugees and citizens of certain countries from entering the United States?

A1: The Executive Order generally suspends issuing visas for 90 days for Iranian, Iraqi, Libyan, Somalian, Sudanese, Syrian and Yemeni citizens under the US visa-waiver programme. These are all pre-dominantly Muslim countries. This includes dual-nationals, as with some of these countries you cannot surrender your citizenship. Therefore, an Irish citizen, who was born in Iraq, whether she has Iraqi citizenship or not, will be impacted by the this ban. The Executive Order also suspends the US Refugee Admissions Programme, permanently excluding Syrian refugees, and limiting refugee in-take for 2017 to 50,000 (almost half of what it was supposed to be). As seen from the news over the last number of hours, many people are being caught up in transit from this ban. Dual citizens (who are not US citizens) but who may be lawfully living in the United States, but travelling for work, are caught up in this ban. The Executive Order is nothing more than discrimination based on religion.

Q2: Does the Executive Order apply in preclearance in Irish airports?

A2: Yes, as reported yesterday, the Executive Order applies in Irish airports. The preclearance officers will apply this Executive Order.   US preclearance screening operates in select locations globally (i.e. in Canada (specifically Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, Victoria, Winnipeg), the Caribbean (specifically Freeport, Nassau, Bermuda, Aruba), Ireland (specifically Shannon and Dublin), and the United Arab Emirates (specifically Abu Dhabi International Airport)).The American Civil Liberties Union (ACLU) gained a stay on  deporting persons stopped from entering the United States due to the the executive order. This only impacts those on US territory.

Q3: Does Irish law apply in preclearance areas in Irish airports?

A3: Irish law governs the operation of preclearance areas in Irish airports by the Aviation (Preclearance) Act 2009 and 2011 Regulations. The 2009 Act gives effect to the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (Preclearance Agreement 2008). It is important to note that the Agreement between the US and Ireland cannot be directly relied upon by individuals in Irish courts. While the full text of the agreement is set out in the 2009 Act, this is “for convenience of reference”. Irish courts have previously interpreted “convenience of reference phrases” to mean that the international agreement is NOT part of Irish law. Nevertheless, Article II(1) of the Preclearance  Agreement 2008, provides:

 “Nothing in this Agreement shall be construed as diminishing the rights enjoyed by individuals under the Constitution and laws of Ireland”.

This phrasing is not utilized in the Aviation (Preclearance) Act 2009. However, we would submit that as with any legislation, it must be interpreted considering the State’s obligations to protection human rights, in particular under the Constitution and the ECHR Act 2003.

Q4: What powers do preclearance officers have in Dublin and Shannon Airports?

 A4: Preclearance officers have a significant number of powers set down in section 5 of the 2009 Act. These include search and detention (for a limited period of time) powers.  Preclearance officers can refuse entry onto an aircraft to a person who is “found to be ineligible for entry into the United States.” This includes operating the discriminatory Executive Order.

Q5: Are Irish officials involved in the operation of preclearance areas?

A5: Yes. As provided for under the 2009 Act, Gardaí and members of Customs and Excise may be involved in supporting the exercise of powers and duties of preclearance officers in the preclearance areas.

The Irish Foreign Minister, Charlie Flanaghan, has issued a statement expressing concerns about the changes in US immigration policy. The claim that this is solely an issue of US immigration and refugee policy is wholly incorrect given Ireland’s involvement in pre-clearance procedures in Dublin and Shannon Airports.

Q6: What rights do people have under Irish law if they are refused preclearance in Dublin and Shannon Airports?

A6: Where an individual is refused preclearance and not permitted to fly to the United States, then Irish immigration officials will accompany that person. The person refused is then at the “frontiers of the State”. Therefore, a person refused preclearance due to the US Executive Order then has rights to request entry to Ireland, including (of course depending on the situation) a potential right to claim international protection (refugee or subsidiary protection) in Ireland. Ireland also has an obligation not to return that person to a country (which may or may not be the country they boarded an initial flight to Ireland) where they face a serious chance of being persecuted or tortured. This is known as the duty of non-refoulement.

Q7: Might the application of the Executive Order at preclearance in Dublin and Shannon Airports be unlawful per se?

A7: It is arguable that this is the case.

First, Ireland continues to have international legal obligations in relation to preclearance areas as they are within the jurisdiction and territory of the state. These legal obligations CANNOT be set aside by its Preclearance Agreement with the United States. These obligations may mainly emerge from the equality guarantees in the Irish constitution and Ireland’s obligations under the European Convention on Human Rights.

Second, where the Executive Order impacts on EU citizens (including Irish citizens) with dual citizenship Article 18 TFEU may be engaged. This prohibits discrimination based on nationality for EU citizens, and likely prohibits the facilitation by state officials (including immigration officials) of discriminatory actions of US preclearance officers.

Third, it is arguable that s. 42 of the IHREC Act 2014 applies. This requires a public body “in the performance of its functions” to “have regard to the need to…eliminate discrimination…protect the human rights of its members, staff and the persons to whom it provides services”. The Act defines a public body as (inter alia) “a Department of State…for which a Minister of the Government is responsible” (excluding the Defence Forces). This, thus, includes the Gardaí and Customs and Excise, which as already noted assist in the administration of the preclearance areas and the application of their powers and duties by preclearance officers.

Please write to your local T.D and let the Irish Human Rights and Equality Commission know that you believe they should exercise their powers to investigate preclearance procedures in Dublin and Shannon Airports. 

Q & A: US Preclearance Procedures in Ireland and the US Presidential Executive Order

US Preclearance and the ‘Muslim ban’: Write to the IHREC

Here is a suggested text to the Irish Human Rights Commission for those who would like them to take steps available to them to assess whether the public bodies’ human rights duty under s. 42, IHREC Act 2014 is being complied with. 

Emily Logan, Chief Commissioner

Irish Human Rights & Equality Commission

16-22 Green Street

Dublin 7

D07 CR20

publicinfo@ihrec.ie

Dear Ms. Logan and members of the Irish Human Rights and Equality Commission,

As you will be aware, the US Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” is applicable in US Preclearance areas in Dublin and Shannon Airports.

Both the Agreement between the Government of the United States of America and the Government of Ireland on Air Transport Preclearance (2008) and the Aviation (Preclearance) Act 2009 make clear that an Garda Síochána and Customs and Excise officials of the Revenue Commissioners are involved in the administration of the preclearance arrangements and area.

I am writing to ask you to take the appropriate steps to assess whether all Irish public bodies involved in the administration of the preclearance area and agreement are acting in compliance with their duties under s. 42 of the Irish Human Rights and Equality Commission Act 2014.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to the IHREC

US Preclearance and the ‘Muslim ban’: Write to your TD

We suggest below a draft letter that people concerned with the application of the Executive Order in US pre clearance in Irish airports might find useful should they wish to write to TDs in relation to it. Of course, people should adjust it to reflect their preferred language and approach to the issue, but we hope it might be useful.

Dear

I am writing to you [as a constituent [and] citizen] to express my deep concern about the continued operation of the Aviation (Preclearance) Act 2009 and associated agreements in Irish airports during the administration of President Donald J. Trump.

In the first week and a half of his presidency we have already seen Trump attempt to subvert the Immigration and Nationality Act 1965 in order to apply discrimination in immigration and undermine international refugee law through Executive Order. As a result of the preclearance agreement between Ireland and the USA, this Order is being applied on Irish soil and in Irish airports. As you will be aware, Article II(1) of that agreement makes it clear that Irish law continues to apply in those preclearance areas. The application of this Order may result in, for example, EU Citizens with dual citizenship with a listed country experiencing nationality based discrimination, facilitated by Irish law, in clear contravention of the TFEU. I remind you also that it is not  possible effectively to renounce citizenship in Iran, Syria, Libya and Yemen.

I remind you that under the 2009 Act, those turned away at preclearance are at the frontiers of the state and must be treated in accordance with Irish law. The Irish state also has obligations of non-refoulement which may arise. Furthermore, any Irish officials including Gardaí who may be involved in any way in policing the preclearance area are obliged as always to act in full compliance with the Constitution and with the ECHR.

Even if Congress supports President Trump’s policies through legislation, thus amending the 1965 Act inasmuch as that is constitutionally permissible, Ireland must ensure that rights under the Irish Constitution continue to be protected in these preclearance areas, and that violations of international law are not facilitated through the application of the agreement.

Bearing all of the above in mind, I would be grateful if you could please seek from the Taoiseach and appropriate minister, and provide me with, details of the following:

A. Measures that are being taken to ensure that unlawful discrimination is not being undertaken or facilitated at Irish airports through the application of Trump policy in preclearance areas.
B. Measures that the Irish government is taking to ensure that international refugee law is not subverted through the application of Trump policy in preclearance areas.
C. Mechanisms in place to ensure Ireland’s obligations under the TFEU, the ECHR and other applicable international law are fully complied with in preclearance areas.
D. Procedures for withdrawal from the preclearance agreement and bases upon which withdrawal would be contemplated by the Irish government

All over the United States this weekend lawyers and others have protested against this unlawful, cruel, Islamophobic and xenophobic attempt to undermine the rule of law. I ask the Oireachtas and the Irish government, in my name, to stand with them. I also ask you to ensure that Ireland provides protection to people seeking asylum from Syria, in particular, who President Trump seeks to preclude from receiving refugee status in the United States.

Given the evident urgency of the matter, I look forward to your swift response.

Yours sincerely,

US Preclearance and the ‘Muslim ban’: Write to your TD

Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on…

DirectProvision16Post by, Caroline Reid, Communications Officer with the Irish Refugee Council

#DirectProvision16

On April 10th 2016 the system of Direct Provision will be 16 years in existence. For the last few years this date has been marked by many people contributing to an open call for submissions (see www.humanrightsireland.ie or #DirectProvision15). These submissions have been varied and came from many different people, sectors and angles. They all served to highlight and explore the failings of Direct Provision and the detrimental impact it is having, and has had, on the men, women and children forced to live within it. The date has been marked retrospectively up until now. This year we want to look forward and concentrate on what could be.

The Government say that there is no alternative.

They say that alternatives have never been put forward.

They say if they end Direct Provision it will mean over 4,000 people will become homeless, as if that is what those who campaign for an end to this inhumane system are advocating for.

Alternatives are possible, they are achievable, but unfortunately there has been no political will from our successive governments to address Ireland’s current and ongoing form of institutionalised living.

Last year saw thousands of people across Ireland offer rooms, houses and other practical solutions for the initial reception of refugees.

The principles of initial short term reception for people in need of asylum have been talked about for quite some time. Based on these, and perhaps more focused areas or groups that may be of interest to you, we are this year not focusing on the legacy of Direct Provision. Instead we are looking forward and we are making a public call for submissions on what alternative models could look like.

Your idea may be for a general initial reception system, a community cooperative scheme, housing collectives or for schemes that enable people to live with people in the community. Perhaps you have something in mind for a particular group of people? We are seeing different models being tried out in other European countries, e.g. for the LGBTIQ asylum seeking community; Female only housing; Specialised accommodation for people who have particular vulnerabilities; Family only accommodation; Perhaps you think there should be special provisions for young people who turn 18 and are removed from their foster carers as they are now considered “aged out minors”? The only thing restricting your submissions is your own creativity in developing a humane and open reception system for people.

Submissions can be written, visual, a blueprint, design based, or simply links to other initiatives happening across the world that you believe we can replicate here. The online campaign will hopefully culminate in plenty of food for thought for our soon to be Government. Let’s make #DirectProvison16 something that we can build on and move forward with. Let’s create political will by offering practical solutions that counter the current government line.

Overarching principles:

~ cap on length of time in initial reception

~ embodies the best interests of the child

~ allows for self-determination

~ is based on care, not profit

~ identifies & supports individuals with special needs & vulnerabilities early on

~ makes early legal advice available

~ includes independent complaints (to the national Ombudsmen)

~ includes inspection mechanisms

~ provides the right to work

~ fosters rather than deters social inclusion

  1. If you are interested in contributing you should email your submissions to enddirectprovision@gmail.com
  2. Materials should be forwarded by Wednesday 6th April at 6pm (late arrivals can’t be guaranteed to go live but we will try our best!).  The material must relate to alternatives to the direct provision system, it may simply be your thoughts or reflections.
  3. A number of organisations and individuals have already been invited to contribute; with growing support for an end to Direct Provision this is an excellent opportunity for you to demonstrate your support for this call and to show that you stand in solidarity with the people failed by this inhumane system.

For those not wishing to submit a blog post, but wishing to other wise engage, please let others who may be interested know about this blogathon:

  1. Call your local TD (or their office) and let them know about direct provision; ask your TD what they are doing on your behalf to highlight the failure of the direct provision system. You can find contact details here.
  2. Write or email your local TD on 10th April 2015 asking them to explore and support alternatives to Direct Provision (email addresses available here).
  3. On Twitter, use the hashtag #directprovision16 , please share posts, engage in debate and discussion, raise awareness with friends, family and colleagues.
  4. All of the submissions will be available on www.humanrights.ie or on a Tumblr page set up to mark 16 years of direct provision and what the future could look like if there was political will to change what has become a profiteering system of reception.

Please share this information on your own Facebook/Twitter/Tumblr page and aim for a Twitter storm for the hashtag #directprovision16

Call for Contributions & Engagement #directprovision16: Direct Provision 16 years on, and on, and on…

Reflections on climate action in the aftermath of Paris

coal kills
Australian climate activist theatre troupe, ClimActs, as “climate guardians” in Paris

Julia Dehm

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

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

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

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

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

Gap between rhetoric and commitments

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

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

Paradigm shift to a new voluntarist architecture for climate governance

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

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

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

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

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

Failing to drive necessary structural transformations

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

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

Reliance on neoliberal market-based approaches

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

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

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

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

Where to now?

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

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

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

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

 

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

 

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

Reflections on climate action in the aftermath of Paris