October 16, 2012 § 1 Comment
For my first blog I use the foundational reading I am undertaking at the start of my PhD studies in order to discuss the theories of rights, and more specifically, what these theories mean to children as right-holders. There are two main competing theories as to the nature of rights; interest theory and choice (or will) theory. I will start by trying to briefly explain each, pointing out the fundamental differences which lead to the problematic philosophical question of whether or not children have rights.
Developed from Jeremy Bentham’s benefit theory, Joseph Raz’s interest theory focuses on rights arising from our holding of a sufficient interest. The subsequent right then informs a duty or obligation of others, as Raz explains;
[T]he interests are part of the justification of the rights which are part of the justification of the duties. Rights are intermediate conclusions in arguments from ultimate values to duties. They are, so to speak, points in the argument where many considerations intersect and where their results are summarized to be used with additional premises when need be.
From this it can be seen how we move from an interest to a right, and from the right to a duty. Rights are intermediate conclusions between interests and duties, and as such we also see a key point of interest theory; that rights talk can take place antecedent of duties. This means rights ground and justify duties, or are the ‘reasons for the duties to which they give rise.’
The choice theory of rights was propounded by H.L.A Hart in his 1955 paper ‘Are there any natural rights?’ Hart’s core idea is that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free”. The use of conditional language also shows another important aspect of choice theory; the difference between a right, and the right thing to do. The actions of moral agents may be considered as ‘right’ or ‘wrong’ without reference to the exercise or violation of rights, which will be important later. For now it is enough to assert that possessing a right, on choice theory, is to have a moral justification to determine how someone else should act, whether it be to fulfil a duty owed or to waive the claim. The key to a right on choice theory is control and/or autonomy. Rights serve to protect a certain measure of freedom/control the right-holder enjoys by dint of their capacity as an active manager, a choosing agent, within a realm defined by the right.
What the differences mean
As seen above, choice theorists argue that people are the “active managers of their own lives even when to do so will work to their overall detriment”, thus the upholding of autonomy is central to the theory. Contrastingly it is argued that on interest theory individuals become “passive beneficiaries of the services of others”. Interest theory could place autonomy as an interest, which can then put others under a duty not to interfere, but at the same time it can be argued that autonomy is the core and to have interests that are worthwhile, or ‘sufficient’, one must first be autonomous. Autonomy may therefore seem to supersede all other rights and interests, however there does appear some circularity here and possibly an irresolvable intertwining between interests and autonomy. Do we have an interest in being autonomous because we are autonomous? Or does our autonomous nature now makes us realise that it was because people had a duty to protect our interests in the past, that allowed us to become autonomous beings at all? Choice theorists believe a right comes from having control over someone’s duty. Yet here it can be said that they have an interest in controlling someone’s duty, and so such rights may exist on interest theory, if this interest is seen as sufficient. Rights are more likely to conflict with interest theory, but this also ensures that we consider other’s interests when determining duties.
Another important difference is unwaivable rights. Choice theorists, as ‘active managers’, believe any rights we possess can be waived by us, and that if a ‘right’, such as not to be assaulted, cannot be successfully waived, it is not a right. As such there is no right not to be murdered, or not to be enslaved, but choice theorists do not therefore condone murder or enslavement (the difference between what is right, and a right). They argue the language must be different, and that something not being protected by a right, does not mean others do not have a duty against doing it. If we bring this idea out of moral philosophy and into pragmatic legal thought, then it may seem an idea for we which we have more sympathy. Whilst there is no such thing as legal murder, we have the right to medical treatment, but we also have the right to refuse medical treatment – that is to waive our right to medical care. Thus we can control our rights, or at least certain rights. Whilst appealing, this is not without problems in that in order to be able to control our rights, right-holders must necessarily be fully autonomous persons. Thus we come to the debate of whether children have rights.
The Rights of Children
The bestowing of rights upon children and incompetent adults is one of the major advantages of interest theory. Wenar has suggested that choice theory is ‘implausibly narrow’ because it does not give those groups of individuals rights as they do not have the necessary capacity to exercise their rights. “The appeal of the interest theory emanates from the wide range of rights that it can endorse, and from the evident fact that having rights can make a life go better.” “Few would insist that it is conceptually impossible, for example, for children to have a right against severe abuse.” And Hart, subsequently changed his views on the concept of a right in respect of moral rights, reportedly suggesting rights “may be used to focus upon individuals’ needs rather than upon their possessing choices.” This would suggest that Hart agrees that children therefore have moral and legal rights against their parents, to be fed for example, as this is something ‘focused upon their needs.’
Choice theorists however would rebut that such non-right-holders are still afforded protection by non-correlative obligations, that is, obligations that are not grounded from any right. Every right may inform a corresponding duty, yet not every duty therefore is informed by a right. Such non-correlative obligations are necessarily held by the autonomous right-holders. Sumner incorporates relational duties based on a benefit analysis into his view of choice theory, leaving us with a result he hopes will negate such problems;
[A]lthough a theory of rights which adopts the choice model can make no sense of the rights of animals or foetuses or infants or young children or the severely mentally handicapped, it can accomplish essentially the same objective by making them the beneficiaries of our protective duties.
Such protective duties may seem to make the theory more palatable however there is more to the rights of children than negative duties and obligations by adults not to harm them. For example, protective duties may no room for the right to education or even to be cared for. No positive rights for children can exist, as no rights for children exist, which means our children enter a world where moral thought concerning them is that the superior autonomous human beings merely have an obligation not to harm them. It should perhaps go without saying that we as a society have problems accepting this. Children have rights. They may not have always been recognised in law, such as the Roman Republic, yet as MacCormick states, “that only means that some or perhaps many legal systems have been morally deficient, which is scarcely a startling observation.” Thus he seems to propose a blend of the two theories of rights. Interest theory is not without clear problems such as; unwaivable rights; third party beneficiaries, which show a right can be held by one who will not benefit from the duty; and that what a ‘sufficient’ interest is that will ground and justify a right has not been given any more objective description. Yet protecting sufficient interests is vital for children to have rights, and perhaps equally vital to protecting them in order to allow them to become autonomous moral agents. At this ‘cut-off point’, when this may be is another debate entirely, such moral agents may be considered to know what is in their own interests and as such move into a choice theory conception of rights. Such an idea is worthy of further thought, as it bestows rights upon children, yet has the vital aspect of control and freedom for competent and fully autonomous agents as well.
– Dominic O’Brien
October 9, 2012 § 1 Comment
Historically ‘age’ has struggled for recognition as an equality issue. The emergence of other discrimination legislation emphasised this point. Discrimination on grounds of sex and race has been unlawful in the United Kindgom since 1975 and 1976 respectively. Discrimination on grounds of disability has been unlawful since 1995 and more recently discrimination on grounds of sexual orientation and religion and belief has been unlawful since 2003.
It took the emergence of the Equality Directive 2000/78/EC which gave age its rightful place alongside the other protected grounds. This Directive required Member States to enact specific legislation to combat age discrimination, which the United Kingdom did in the form of the Employment Equality (Age) Regulations 2006. Presently we have the Equality Act 2010, representing years of debate on how to improve equality law, and this consolidated and replaces a number of previous discrimination legislation including the Employment Equality (Age) Regulations 2006.
Differences of treatment between individuals or groups on the grounds of age are often based on generalised assumptions or stereotypes. Ageism allows us to think of others purely in terms of their chronological age or perceived age regardless of how experienced they are or how able they are to perform a task. It is a widespread stereotype that older persons are often assumed to lack flexibility, the ability to absorb new ideas are less motivated, are risk averse and may resist training/are resistant to change. Another stereotype frequently encountered is that the physical and mental abilities decrease with age. The stereotypes that exist are often inaccurate and do not reflect the true diversity of individuals. Age does not automatically mean a diminution of skills or a diminution in cognitive capacity or physical strength and endurance. The concern was that by allowing employers to justify direct age discrimination the defence may give rise to misuse and/or facilitate stereotypical assumption.
A review of the reported case law and observation of age discrimination claims at the local Employment Tribunal reveals the consensus that despite the existence of legislation to combat unlawful age discrimination ageism will inevitably occur at the recruitment stage for older workers and that is a fact of life. However an Employment Tribunal is willing to compensate individuals for the risk of continued discrimination.
In the case of Killa v Electronic Motions Systems Ltd the Claimant had been employed as an electronic engineer for 8 years and was selected for redundancy, with no evidence of any objective criteria being applied. The Employment Tribunal found that the dismissal amounted to age discrimination. In the remedy judgment it was held that ‘it is not, unfortunately, the case that someone aged 59, 60 or over, competes on a level playing with younger people. The reality is that age discrimination exists and is likely to be highly influential in limiting his opportunities.”’ The Employment Tribunal goes onto confirm that ‘not only his age, but also his recent dismissal, in a non voluntary redundancy, is against him. He has already found that that was a factor making obtaining work more difficult’ andgoes as far as to conclude that Mr Killa has realistically ‘no chance of getting work in his own field at his age, and at the level he previously enjoyed. He has no chance of getting equivalent earnings in another field in the years he has left.’
We do not know what evidence the Employment Tribunal had in order to reach these findings, except the unsuccessful efforts of Mr Killa to find alternative work. Therefore we do not know whether the Employment Tribunal is acting on its own view about recruitment or whether there was clear evidence that Mr Killa was unsuccessful in securing alternative employment because of his age.
More recently in an age discrimination/unfair dismissal case that I observed at a local Employment Tribunal there was a common thread throughout the evidence as to how difficult it would be for a 58 year old to find alternative employment. The Claimant himself felt: ‘At 58 I will never get another job… Simple as that.’ One witness for the Respondent, an agent of significant experience in the relevant field of the Claimant’s work, initially commented that the Claimant ‘…would be top of the pile with his experience’ and stated that he would consider the Claimant for a role. However later in the questioning the witness acknowledged that looking purely at the ages without knowing the candidates by recommendation then he would be unlikely to pick the 58 year old. Indeed in her closing submission Claimant’s Counsel hypothetically asked the Employment Tribunal ‘is an employer really going to give the job to a 58 year old man?’
There was no acknowledgement or indication by any of the witnesses that the culture of ageism may have changed as a result of age being a protected characteristic within the Equality Act 2010. However the Employment Tribunals are recognising this struggle to combat age discrimination and are sending a clear message that Claimants will be compensated accordingly.
– Lyndsey Martin
October 1, 2012 § Leave a comment
A fundamental feature of UK and EU anti discrimination law is the distinction between direct and indirect discrimination. For direct discrimination there is usually no justification defence, however for indirect discrimination there is usually a defence. Article 6 of the Equality Directive 2000/78 provides that Member States may provide differences of treatment on grounds of age shall not constitute discrimination if they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives and if the means of achieving that aim are appropriate and necessary. Therefore differences of treatment on grounds of age will not constitute direct discrimination provided they are objectively justified.
The Employment Equality (Age) Regulations 2006, and more recently the Equality Act 2010, took full advantage of the wording of Article 6 and provides a general justification defence in respect of direct age discrimination. In other words we do not have an exhaustive list of accepted grounds as an exception to the prohibition against direct age discrimination. Direct age discrimination is justified if ‘the treatment is a proportionate means of achieving a legitimate aim’ (section 13 Equality Act 2010).The general justification defence leaves the law in a state of uncertainty as to what may or may not constitute a legitimate aim. However there have been a number of decisions by the Court of Justice of the European Union that have considered the justification of direct age discrimination. Having examined these decisions the following points will assist in determining whether there is a legitimate aim in a particular case:
1. The legitimate aim must be linked to a social policy objective, as opposed to a individual reason particular to the employer’s business such as cost reduction or improving competitiveness.
2. What is legitimate will depend upon the context of the measure. For example in the case of Palacios de la Villa v Cortefiel Servicios SA C411/05 the fact that the economic background characterised by high unemployment was relevant to whether the measure in question pursued a legitimate aim.
3. Flexibility for employers is not a legitimate aim but a certain degree of flexibility may be permitted to pursue the social policy objective.
4. The following are examples of potential legitimate aims (some are more controversial than others):
i. The prevention of job blocking ‘the fair innings argument’ /sharing employment opportunities between generations
ii. Promoting access to employment for young people
iii. Enabling older people to remain in the workforce
iv. Ensuring a mix of generations of staff so as to promote the exchange of experience and ideas
v. Encouraging and rewarding loyalty
vi. Providing a target age for succession planning/efficient planning of the departure and recruitment of staff
vii. Encourage employees to save for retirement
viii. Avoiding the need to dismiss employees on the ground that they are no longer capable of doing the job which may be humiliating to the employee concerned
ix. Avoiding disputes as to the employee’s ability to do the work which contributes to a congenial workforce.
x. The avoidance of a windfall to an employee whether that windfall is large or small.
The fact that a particular aim is capable of being a legitimate aim under the Equality Directive (and the Equality Act 2010) is only the first step. There must then be a consideration as to whether it is the aim being pursued and whether it is appropriate and necessary in that particular case. An example provided by Lady Hale in the Supreme Court decision of Seldon v Clarkson Wright and Jakes  EWCA Civ 899 is that avoiding the need to performance manage an individual may be a legitimate aim but if the business in question has a ‘sophisticated management measure in place it may not be legitimate to avoid them for only one section of the workforce.’
The case of Ormerod v Cummins ET case number 2508268/09 is an example of the employer falling at this hurdle. In that case the Claimant brought a claim of direct age discrimination arising from his redundancy payment calculation. He did not receive his full entitlement because he was approaching retirement and thus in the Company’s view would provide him with a windfall. Although the Tribunal recognised that the avoidance of a windfall is a potential legitimate aim, it was not legitimate in this case. The Tribunal placed great reliance on the lack of attempt by the employer to advance a case as to what the windfall was. Furthermore the redundancy package and the early drawing of the pension actually deprived the Claimant of various other benefits including the loss of opportunity to work on and enhance his pension and the loss of potential bonus and overtime. Therefore the Tribunal will not simply accept the fact that it may be a legitimate aim then go straight to determine whether the means of achieving that aim are appropriate and necessary. There must be a consideration of that aim against the facts of the particular case.
– Lyndsey Martin
August 7, 2012 § 1 Comment
By Kevwe M. Omoragbon, Northumbria University, UK.
It has been ten years of the introduction of clinical legal education in Nigeria. It can be said that the country has benefitted from the tidal flow of the global clinical movement. There has been a steady growth in the number of law clinics bringing it to fourteen law clinics which are situated within the universities and some campuses of the Nigerian Law Schools. The main goals of the clinics are to train law students in the practice of law as well as provide free legal aid to less advantaged citizens. A recent legislative change to the Legal Aid Act now legally recognizes law clinics as being engaged in the provision of legal aid.
Despite the gains of CLE, several challenges are still being faced by the law clinics. The focus of this paper will be to address the legal impediment which prohibits anyone who has not yet been called to bar from appearing in any court of law, this out rightly excludes law students. This paper argues that the practical training of law students is incomplete without a measure of appearance in some courts and/or tribunals.
The methodology of the presentation will involve the use of an ethnographic case study to highlight these challenges, and then go on to discuss what can be done to address these problems especially through law reform as well as identify who the actors and stakeholders are in the drive towards the reform.
Clamour for reform of legal education in Nigeria began after the return to democratic rule in 1999. Consequently, the Nigerian Institute of Advanced Legal studies organized an all-stakeholders conference to discuss the fundamental issues concerned in legal education in Nigeria. The conference resolved on the need to refocus legal education for the Nigeria of the twenty-first century. After the conference, the Nigerian Bar Association set up a committee on legal education to liaise with all legal education institutions with a view to improving legal training. Moreover, the Nigerian Bar Association Summit on legal education held in May 2006 passed a resolution calling for the adoption of clinical legal education for all law programmes in Nigeria.
In a bid to develop and institutionalize clinical legal education in Nigeria, the Network of University Legal Aid Institutions, Nigeria (hereinafter referred to as NULAI) was established in 2003 as a not for profit organization. Its membership is open to legal clinics/Legal Aid Institution of Nigerian Universities and Law schools. Its activities include, promoting clinical legal education, reforms of legal education, access to justice and legal aid by organizing colloquiums, training workshops and giving grants for the provision of financial and material resources to law clinics.
At the time of this presentation, there are fourteen law clinics located in Faculties of law of Nigerian Universities as well as campuses of the Nigerian Law School. Most of the law clinics started as general interest law clinics with the exception of the Women’s Law Clinic, University of Ibadan. Over time, they have become more specialist focused especially in the area of prison decongestion. For example, the ABSU Law Clinic, Maiduguri Law Clinic, Akungba Law Clinic, EBSU Law Clinic and UNIUYO Law Clinic who started by providing legal advice, ADR and human rights education, commenced a prison service in 2009 and presently are working to assist over 550 pre-trial detainees. The Women’s Law Clinic from inception started out as a specialist law clinic and deals with cases of domestic violence, matrimonial issues including divorce and child custody, succession, employee-employer as well as tenancy disputes. It has handled over one hundred cases out of which seventy-four were successfully concluded. All law clinics also benefit from grants, several capacity building workshops and participate in an annual client counseling skills competition.
The country has also seen a law reform which now legally recognizes law clinics as providers of legal aid. The Amended legal Aid Act (attached) recognizes law clinics. The Legal Aid Act, 2011 (Part IV Section 17) provides that “The Council shall maintain a register of non-governmental organizations and law clinics that are engaged in the provision of legal aid or assistance to persons who are entitled to legal aid under this Act”.
Despite this feat, the clinics cannot rest on their oars as there are challenges militating against the access to justice which need to be urgently addressed. The following case study brings to light some of these challenges which hamper the provision of legal aid by law clinics.
This case study is an example of the type of case the law clinics will deal with and the common problems they encounter. Yetunde is a mother of four children ages 11, 8, 5 and 8mths. The first three children are female while the last baby is a male child. Her marital problems started after the birth of her third female child. Cultural values are attached to male children as an average Nigerian man wants an heir who will bear his name and take over his inheritance after his demise. Yetunde was sent out of her husband’s house shortly after the birth of the last child having being accused of adultery and witchcraft which is a clog in his progress. Her husband also denies the paternity of the last child and won dissolution of their marriage from a customary court who awarded custody of the first three children to her husband and a monthly maintenance allowance of N1,500 (which is equivalently £6) for the last child. This dissolution was done in a customary court despite being married under statutory law after traditional marriage. In Nigeria, there are three legally recognized types of marriages- the statutory marriage or marriage under the Act, the marriage under native law and customs or the traditional marriage and the Islamic marriage. Many couple combine at least two of these types of marriages creating the practice of ‘double deck’ marriages. Double deck marriage is rife but so long as there is a statutory marriage after the celebration of a traditional marriage, the statutory marriage takes precedence and can only be dissolved in a High Court and not a customary court. A customary court only has jurisdiction over marriages which are solely conducted under local native law and customs.
Yetunde had to rent a studio apartment with her savings as a yearly tenant but just six months into her tenancy, she was issued a notice to quit the property within six months. She was informed by reliable sources that her husband had mounted pressure on the landlord to evict her whilst also accusing the landlord of committing adultery with his wife. Yetunde then approached the law clinic for legal aid in respect of two main issues:
- Custody and maintenance of her first three children which she claimed are being maltreated by her husband’s new wife.
- Reversal of the notice to quit given by her landlord as she is of good character and has paid her rent in full for one calendar year.
The clinic immediately swung into action by conducting further investigation which showed that as regards the first issue of divorce and custody, Yetunde was statutorily married under the Marriage Act and therefore only the High Court had jurisdiction to dissolve the marriage. The clinic gathered that Yetunde did receive the court summons but due to fear of being arrested and detained, she did not attend. However, the customary court went ahead to issue a verdict in her absence and a copy of the judgment was sent to her by post which stated that her husband will have custody of the first three children while she takes care of the baby until his 6th birthday, she is not allowed any access to her daughters and is also barred from going to their school or the locality where they reside. The allegation of adultery was not proven beyond reasonable doubt and a monthly maintenance award of N1,500 (which is equivalently £6) was insufficient to meet the baby’s needs, neither had she received any in the last three months.
The clinic first attempted to mediate between Yetunde and her husband although this proved problematic. Though he ignored the letter of invitation twice, he however honoured the third letter but still maintained his initial stand of upholding the divorce and adding that he has now re-married and his new wife just had baby boy. He also informed the clinic never to write anymore letters.
The clinic needs to institute an action in the High court to declare that the customary court has no jurisdiction over statutory marriages and, to file for custody and maintenance for all her children and herself. However, law students in Nigeria have no rights of appearance in any tribunal or court, the clinic is finding it difficult to find a pro bono lawyer within reasonable time who will take up the case and there is also slow progress in finding a suitable agency to refer a case of this nature.
As regards, the second issue on her tenancy, the clinic confirmed that being a yearly tenant, Yetunde is entitled to six clear calendar months notice. However, the notice to quit is three days less than the required six months which makes the notice of ineffective. Despite writing to the landlord to explain this legal requirement, he went ahead to re-issue a seven days notice of owners intention to recover possession of his property at the expiration of the notice.
The clinic needs to institute an action with the rent tribunal in order to get an injunction restraining the landlord from recovering possession. However, as there are no student practice rules in Nigeria, students have no right of appearance in any tribunal or court. The clinic was unable to find a pro bono lawyer who will take up the case within the seven day time frame. The landlord employed the use of bailiffs to recover possession at the expiration of the seven days notice. Yetunde was assaulted in the process and is disappointed that the clinic could not do anything to stop the landlord from throwing out her stuff.
Cases such as this are rarely concluded as the client looses interest in the case and seldom shows up afterwards. This clearly shows an example of some of the cases where the clinic’s hands are tied by the law which restricts law students from appearing in any court or tribunal. It is apparent that students would have learned much more if they had the opportunity to prepare further paper work, file a case in the relevant tribunal or court and represent their clients. The reputation of the clinic is also sometimes at stake as clients find it difficult to understand these legal requirements. For instance, some of the cases before the Women’s Law Clinic are never concluded due to setbacks such as this.
It is the position of this paper that a mere ‘recognition’ of law clinics by the Legal Aid Council and their inclusion in a register as provided by the amended Legal Aid Act 2011is not enough to ensure access to justice. Therefore, it is my recommendation that the way forward for law clinics’ in Nigeria, is to have Student Practice Rules which will give students limited rights of appearance in some courts and tribunals. Nigeria, through networking in a conference like the IJCLE, can learn from other developed jurisdictions where this has produced better equipped law graduates in countries such as here in the UK as well as the US. This willalso ensure access to justice for citizens whilst fulfilling the objective of training law students in the ‘practice’ of law.
It is also my recommendation that there needs to be an increase in the number of law clinics. The present 14 law clinics’ is still a far cry out of over 40 public and private Universities in Nigeria. In order to achieve the desired law reform, many more universities need to embrace clinical legal education. The National Universities Commission as well as the Council for Legal Education in Nigeria should make it mandatory for all universities to have law clinics attached to their law faculties or have other forms of clinical programs such as street law or externships. This would replace the ambiguous NUC drafts benchmarks and minimum academic standards in law of 2005 which prescribed as mandatory the introduction of a community based course in the fourth year LL.B programme.
There also needs to be more student and faculty engagement in this regard as many clinics all over the world emerged through student activism and their demand to participate in roles similar to the ideals and vision of law practice. This can be done through the Law student societies in the universities as well as the student union and the National Students Association.
If all these machineries are put in place, there will an enabling environment as well as a learning opportunity for students whilst ensuring access to justice for the less advantaged Nigerians. I welcome comments from colleagues in other jurisdictions with or without student practice rules to share their experience on how they have overcome some of these challenges.
July 2, 2012 § 1 Comment
Utilised in numerous Hollywood blockbusters in recent years, from Robert Langdon’s dash to the U.S embassy in Paris in ‘The Da-Vinci Code’ to Jason Bourne’s run in with the consulate officials in ‘The Bourne Identity’, the position of the embassy in international law could be mistaken for the setting of the latest cinematic release rather than a fundamental instrument in diplomatic relations. Events in the past two months however have illustrated that the inviolability of the embassy is much more than a plot device in the latest Bond film, and instead is one of the oldest and most sacrosanct principles of international law.
In late April 2012 Cheng Guancheng, a Chinese dissident activist, escaped house arrest and fled to the U.S embassy in Beijing. Arriving days before a planned visit from U.S Secretary of State Hilary Clinton, his residence in the U.S embassy sparked a brief diplomatic crisis between the United States and China. This crisis was seemingly reconciled in May 2012 when Mr Guancheng flew with his family to the United States to take up a position at a U.S university.
In developments much closer to home, wikileaks founder Julian Assange appears to be avoiding his imminent extradition to Sweden by residing in the Ecuadorian embassy in London. Mr Assange faces accusations of sexual assault in the Scandinavian country but has sought the sympathy of Ecuadorian officials to prevent the extradition which could see him further transferred to the United States. Mr Assange’s primary fear is that if extradited to the United States he could face the death penalty in relation to charges concerning his dissemination of confidential information.
Drawing on examples from these two recent cases, this post intends to set out the position of the embassy in international law and provide a brief uncritical explanation of why individuals wanted by a forum State have sought protection in the diplomatic premises of other nations.
The emergence of the embassy in international law
The relevant law which has led to the UK Foreign Office informing the Metropolitan Police that Mr Assange is out of their reach so long as he resides in the Ecuadorian embassy is found in the Vienna Convention on Diplomatic Relations (VCDR). As highlighted by the preamble to this international treaty, the provisions contained within the Convention were not new in 1961 when the treaty was formally created, but are a codification of principles which have been followed for hundreds of years in relation to the diplomatic official:
‘Recalling that peoples of all nations from ancient times have recognized the status of diplomatic Agents’
Writing in 1924 Korf highlighted that even in ancient civilizations the position of the diplomatic official was given a protected status:
‘[i]t was recognized everywhere that the envoy had a specially privileged position; his person was inviolable and sacred, his status abroad was protected by the principle of extraterritoriality; he was exempt from municipal and local laws and taxation’
By providing an individual with a special protected status tribes, kingdoms and other large groupings could negotiate differences and conduct trade without the fear that their envoy or messenger would be the victim of attack or imprisonment. The system was mutually beneficially between different parties as if an envoy of one kingdom was endangered or imprisoned while conducting his role in a receiving kingdom, his contemporary in his own kingdom would be at risk of direct retaliation. In effect, according to Dixon, the diplomat was seen as a representative or alter ego of the sovereign and was thus entitled to all of the immunities which he or she would have enjoyed.
Eileen Denza has stated that even before the congress of Westphalia in 1648, where international law is commonly seen to have emerged into its modern Sovereign State form, permanent legations were accepted as the normal way of conducting international business between different kingdoms or tribes. This is evident in that France’s permanent representation abroad began as early as 1522 when King Francis I sent a delegation to the Swiss.
Vienna Convention on Diplomatic Relations
In the period immediately following WW2, when international law was arguably at its most fertile and the concurrent demise of colonialism saw the creation of numerous new nations, the decision was made to codify the customary provisions which had previously regulated the law on embassies. Listed in the preamble to the treaty the purpose of the VCDR was for the ‘the maintenance of international peace and security, and the promotion of friendly relations among nations,’ and ‘to ensure the efficient performance of the functions of diplomatic missions as representing States’.
Denza notes that, even despite the diplomatic problems caused by the Cold War, the treaty was relatively straightforward to negotiate. This was partly because the States who negotiated the treaty had generally followed the rules they were negotiating for hundreds of years until the point of codification, and also because States had a common interest in the successful creation of the treaty. Just as with the tribes and kingdoms of centuries before, States may have had enormous gripes and ideological differences with one another, however as the sanctity of diplomatic channels benefitted all parties, they could agree on the sovereign immunity of their diplomats abroad and safety of their embassies.
Entering into force in April 1964, the treaty currently has 60 signatories and 187 parties making it one of the most universally accepted provisions in international law. Dixon highlights that in the US Diplomatic and Consular Staff in Tehran Case the Court has indicated that a great part of the VCDR now also makes up customary international law as well as international treaty law.
The inviolability of the embassy
The reason why Mr Guancheng fled to the U.S embassy in Beijing, and why Mr Assange is currently residing in the Ecuadorian embassy in London, is because it is not only the position of the diplomat but of the embassy premises which are out of reach of the authorities of the forum government. The inviolability of the diplomatic premises are a natural extension of the protection provided to diplomats. In theory it enables diplomatic staff the freedom to carry out their duties and functions conscious that they will not be harassed or intimidated by officials of the receiving State.
Their sanctity is provided for by Article 22 of the VCDR which states that:
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of transport of the mission shall be immune from search, requisition, attachment or execution.
It is the blanket inviolability of the embassy, visible here in section 1, which creates this loophole in international law. Intended seemingly to protect ambassadors, staff and their sensitive materials it is this provision which has the capacity to protect individuals within embassy premises also. Signed by both Ecuador and the United Kingdom in 1961, this safeguard is what is currently preventing the Metropolitan Police from gaining entry to the Ecuadorian embassy and arresting Mr Assange for breaching his bail conditions.
Although there is a certain irony in Mr Assange availing himself of embassy protection when his organisation undoubtedly caused diplomatic headaches for embassies all over the world, he will be safe within the Ecuadorian Embassy for as long as the mission is willing to accommodate him. Although it is likely that his visit to the embassy will be over in a matter of days, as Ecuadorian officials consider what approach to take on his case, it is not unheard of for individuals to spend long periods of time living in another State’s embassy. For instance, the Hungarian Priest Jozsef Mindszenty spent 15 years of voluntary confinement in the U.S Embassy in Budapest.
Thus, it is the right afforded to the Ecuadorian State under international law which is currently protecting Mr Assange. My next blog post will consider the responsibility of the Embassy State (the ‘sending State’) when an individual claims refuge there from human rights abuses.
– C. Mallory
March 1, 2012 § Leave a comment
I will be presenting a paper titled, ‘The Growth of Law Clinics as a Vehicle for Legal Empowerment in Nigeria’ at the 12th Annual Africa Conference, 2012, at the University of Texas at Austin, USA. Dates: March 30- April 1 2012. This is the abstract for my paper:
The Growth of Law Clinics as a Vehicle for Legal Empowerment in Nigeria
Despite over ten years of democratic rule in Nigeria, the gains of democracy are very slow in realisation which could be partly due to over thirty years of previous military regimes plagued by numerous human rights violations, abject poverty and disintegration of the judicial system.
Poverty reduction and human rights have shared values and overlapping objectives some of which include non-discrimination, liberty and security of the person. Legal empowerment is a right-based approach which uses legal services to help the poor learn and take actions to alleviate poverty through information, education as well as organization and legal representation.
The introduction of law clinics in Nigerian Universities has made impressive progress in training law students in the practice of law as well as providing free legal aid to less advantaged citizens. This has gone a long way to improve access to justice, protect citizens’ constitutional rights and has the effect of reducing poverty.
This paper examines the growth of law clinics in Nigeria and achievements so far recorded, arguing that without law reform, they cannot achieve their full potential. It will start by giving a brief background from an international perspective, their root in Africa, and the antecedents that led to the founding of law clinics in Nigeria. It will evaluate their accomplishments and provide recommendations to further strengthen access to justice and improve law clinic sustainability.
– By Kevwe Omoragbon
January 31, 2012 § 1 Comment
Last week David Cameron made a speech at the Council of Europe in Strasbourg outlining the reasons why he believes it is time for the European Convention on Human Rights system to be reformed. In his speech the Prime Minister suggested that unless reform is enacted the Court risks becoming a ‘small claims court’. His comments have drawn criticism from Sir Nicholas Bratza, the senior British judge, currently acting as President of the Court. This brief post will summarise what Mr Cameron said and why his comments are both untimely and unwarranted.
Need for change
Mr Cameron outlined three interrelated reasons why the UK, under the coalition government, would be pursuing change to the Convention system.
Firstly, he argued that the ability of the Court to fulfil its mandate was being threatened by its increasing workload. He identified the current backlog of cases and continuing increase in applications as an obstacle. In particular he suggested that the most egregious violations were not receiving the consideration they required under the current system. Secondly, the Prime Minister argued that the Court was rapidly becoming a Court of the fourth instance, giving an applicant a final attempt at succeeding where they have failed in domestic hearings. Mr Cameron’s submission here was that under the current system the Strasbourg Court was having its time wasted by being forced to consider trivial applications, many of which had already been rejected on numerous occasions in domestic hearings. Thirdly, he argued that the margin of appreciation, allowing for country specific interpretations of the Convention, was shrinking in favour of a Strasbourg imposed broad European base. Here he specifically referred to the UK’s recent troubles regarding the deportation of terror suspects and prisoner voting rights as issues which the Strasbourg Court should have left to the discretion of national courts.
A better system
Mr Cameron concluded by stating that the Court should be freed to deal with the most serious of violations; that the Court should ensure the right of the individual application rather than act as a ‘small claims court’ and that it should hold each country to account instead of undermining the decisions of national courts.
Critique: Untimely and unwarranted
Mr Cameron’s first reason for reform was the vast backlog of cases pending before the Court. Although correct, this criticism is untimely given that the Council of Europe has, only relatively recently taken steps to rectify the problem by enacting Protocol 14. Despite being objected to by Russia for a number of years, this provision finally came into force in June 2010. Under Protocol 14 there are now measures for dealing quickly with repetitive cases, the Court’s filtering capacity has been reinforced and a new admissibility criterion requires applicants to have suffered a significant disadvantage to gain access to a hearing.
Having been negotiated for a number of years the Council of Europe’s Committee of Ministers first adopted Protocol 14 in May 2004. It appears that despite waiting over six years for this provision to finally come into force, Mr Cameron and his government want to reform the system without even waiting to see if the changes have any impact on the efficiency of the Court.
It is understandable that there is frustration with the backlog of cases, but the reality is that the Court has to give adequate consideration to allegations of human rights violations taking place across 47 states. Although this criticism by Mr Cameron may be well intentioned, the Council of Europe should be wary of accepting further reforms which could allow the Court to spiral into a constant state of transition.
The Prime Minister also criticised the Court as being a final appeals body for trivial applications. Mr Cameron used an application concerning sub-standard travel conditions on a bus from Budapest to Madrid to use as an example of the bizarre nature of one case. Evidently his researchers appear to have been more diligent than those of his Home Secretary when they found this case. One must always be wary, however, of using isolated examples to illustrate a fundamental point. It is unfortunate but true that a number of cases submitted to the Strasbourg Court are of a trivial nature, but this is why the Council voted to adopt Protocol 14 and weed out such applications at any early stage.
Furthermore, the fact that a number of applications, trivial or serious, have the opportunity to be heard in Strasbourg after receiving negative judicial treatment in domestic Courts should be seen as a success, rather than a failure in the current structure. The Strasbourg Court presents the final opportunity to highlight domestic legislation or State action as being incompatible with the Convention, and thus this structure has enhanced the protection of human rights. As recently as 2008 for instance, the European Court of Human Rights overruled decisions of the UK Administrative Court, Court of Appeal and House of Lords in finding that s.64 of PACE, authorising blanket retention of finger prints and DNA samples, was in breach of Article 8. The Conservative Party subsequently campaigned that they would overhaul data retention legislation to make it more human rights compliant and the result of this, the Protection of Freedoms Bill, is currently making its way through the House of Lords.
Although it is justifiably frustrating for a government when their legislation or actions are defined as in breach of the Convention, it is one of the greatest successes of the Convention system that there is a final arbiter who specifically focuses on the human rights impact of a particular law or action and, when appropriate, advocates for change.
Margin of Appreciation
The Prime Minister’s assertions regarding the Margin of Appreciation are grounded in his general approach to Europe. It has been reported that if his reforms are not accepted, the Conservative manifesto at the next general election will include a pledge to call for looser ties to Strasbourg. Preparation for such a break in ties may already be underway as towards the end of Mr Cameron’s speech he highlighted how UK the government is currently investigating the case for repealing the Human Rights Act 1998, a law which gives direct effect to the Convention provisions, to replace it with a UK Bill of Rights.
It may simply be the case that the speech Mr Cameron gave in Strasbourg last week was a prelude to a more prolonged campaign for the UK to break away from the Convention system. If that is the case Mr Cameron should come out and state it as party policy, rather than using his position as the leader of the UK government to direct criticism at the Court.
Small Claims Court
Mr Cameron stated his concern was that the Court was at risk of becoming a small claims court. The Prime Minister should bear in mind when making such comments that although the United Kingdom has improved its human rights record dramatically over recent decades, with only 8 judgements being rendered against the State in 2011, the outlook for individuals across much of Europe is not as bright.
Last week the 2011 statistics of the Court were released presenting clear evidence that the Court is much more than a small claims tribunal. The most common violations regarded the length of proceedings (341), the right to liberty and security (241) and the right to a fair trial (211). There were also 70 violations of the right to life and 183 violations of Article 3. These statistics do not reflect the work of ‘small claims court’.
Mr Cameron made a number of valid points in his speech. The Court is certainly oversubscribed with applications. Several practitioners do attempt to manipulate the Convention system for personal gain rather than for the well-being of their clients. The term ‘human rights’ has developed negative connotations in some quarters due to trivial applications and, on occasion, it would be fair to say that the Court could have made a decision on the basis of the margin of appreciation, rather than searching for a pan-European level of acceptability.
Some of Mr Cameron’s criticisms are serious and reflect a weakness in the system in its current form, yet that is exactly why they are already being addressed on various fronts. It would appear, however, that much of the Prime Minister’s comments are politically motivated and are representative of the Conservative Party’s position on Europe, instead of the United Kingdom’s commitment to human rights.
It is possible that Mr Cameron’s comments are a knee jerk reaction in light of recent decisions against the United Kingdom, or they may form part of a long term goal to grasp sovereignty back from Strasbourg, nonetheless they are both ill advised and untimely. Perhaps what one could take from them is that if the short term threat to the Court is an enormous backlog of cases; the long term threat is unwarranted politically motivated calls for reform.
– Conall Mallory