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
August 1, 2012 § 1 Comment
(Residents and police try to rescue refugees from an asylum boat being smashed by violent seas against the jagged coastline of Australia’s Christmas Island Photo: AP)
This month disturbing news revealed that 54 people died in an attempt to reach Italy from Libya by boat, one man from Eritrea survived, the rest perished from dehydration in a 15 day ordeal.
This blog aims to provide a legal and realistic narrative of the reasons why deaths at sea continue to occur and who is to be held accountable.
A Personal Account
Before I begin this blog, I want to draw attention to a story I came across during my reading. It is written by a Somali woman who was smuggled into Europe. Her personal account exposes some of the realities of smuggling and the dangers people face in escaping persecution.
“I remember living a medium life. Me, my husband and eight children. I remember my baby calling, “Mama, mama”. Quite normal.… But the war breaks. We fled. Far away to south Somalia….Two months on. Everything’s out of hand. We run away from the civil war. Me, my husband and eight children.… And we go from Somalia by boat towards Kenya. But suddenly the boat is sinking. The boat is overloaded…. The boat broke. Water breaking into us…. I can’t swim. The boat sinks. Who will rescue us?…. 200 people are dying, drowning. I’m losing my family to the sea. Five of my daughters are lost…. And my eldest son, he’s just begun his life, he’s finished university. He’s lost. That makes six of my children. Dead in the sea, in one day.… Suddenly, an Italian tourist boat is passing.… people come to rescue us. They grab my baby, who I’m holding. And another child of mine…. All the time my baby’s calling “Mama, mama.” Suddenly, I am hauled into the boat like a baby myself…. I am crying. My whole body. Crying.… Do you hear me?… I cannot forget that day. Although I’m here before you today, you can’t have imagined the life of one Somali woman.… am breaking my silence. The world should know my life, my baby calling “Mama, mama”. The world should hear this life.” Found in research commissioned by the Information Centre about Asylum and Refugees in the UK (ICAR) at http://www.icar.org.uk/somalicommunityreport.pdf
The Factual Reality
Though the above stories are horrendous, it’s a narrative that continues to take place as persecuted individuals continue to employ criminal smugglers in attempts to find sanctuary within Europe. Figures from UNHCR show that since the 31st of January 2012 over 500 irregular migrants and refugees died attempting to cross the Mediterranean sea. Sadly, this figure is also likely to be higher as not all deaths are recorded (throwing dead bodies overboard is common) and death records are only accounted for in tales from survivors or through enquiries from family members looking for missing persons. Unfortunately the majority of people smuggled into the UK and Europe are those seeking refuge from conflict ridden countries.
The stark reality is that despite the right to ‘seek and to enjoy in other countries asylum from persecution’ as enshrined by Article 14 of the Universal Declaration of Human Rights (UDHR), when conflicts erupt or it is likely that there will be an influx of people from a particular country, the UK government introduces stringent visa requirements and this is paralleled throughout Europe.
This can be seen in the UK Border Agency’s (UKBA) current list of countries requiring visa entry for the UK, which includes many refugee producing countries. Unfortunately given the nature of refugees, (in that most come from politically unstable countries) seeking visas from British embassies within their own countries is often impossible. Currently included on the UKBA’s list is Somalia, yet Somali’s cannot obtain passports, let alone British visas and UNHCR recently reported that a boat was still at sea carrying 50 Somali and Eritrean people attempting to reach Italy. Other countries such as Iran and China are also listed, yet within these countries the State is the persecutor from whom people seek to escape, therefore obtaining travel documents or visas can be dangerous to the applicant or the family they leave behind.
Consequently, legal entry, for the majority of asylum seekers, is unfeasible: in essence the worse the situation in the country of origin, the more difficult it is to gain entry to the UK or Europe. As a result of this, the activities of criminal smugglers have prospered and human rights abuses have increased. Amnesty International estimates that every year, four million people are trafficked or smuggled across international borders- the value of this criminal trade is estimated at approximately $US10 billion per year.
Illegal entry and the rising death toll can be addressed as a three- fold problem:
-the first (as cited above) is due to visa requirements for entrants from refugee producing countries;
-the second is the failure of the UK government and other European States to provide sufficient resettlement programs;
-and thirdly the increased security of Europe’s external borders forces asylum seekers to find ever more complex and dangerous methods of entry.
In 2004 the UK government, in partnership with UNHCR, set up a refugee resettlement scheme (under Section 59 of the Nationality, Immigration and Asylum Act) which provides 500 resettlement places to those refugees most in need throughout the world, this has since been increased to 750 places.
Currently sixteen European countries provide resettlement to refugees, yet they only provide 8% of global resettlement places. 90% of places are provided by the three top resettlement countries: the United States, Australia and Canada. Recently the European Union adopted the EU resettlement program, which intends to co-ordinate, harmonize and increase the number of resettlement places offered throughout Europe. However the number of resettlement places has not increased in parallel with the number of countries needing the resettlement of citizens. UNHCR estimates that 800,000 refugees are in need of resettlement places each year, far more than the places available, the result being that only one in ten refugees in need of resettlement will secure protection through the programs.
Border Control and Smuggling
As discussed, illegal entry is often the only resort of those who wish to escape their country and find refuge. In attempting to do so, asylum seekers commonly employ criminal smugglers to smuggle them across the borders to a new life. This often involves extortionate amounts of money and the sacrifice of safety, putting individuals and families at the mercy of criminal smugglers. Contrary to popular opinion, the poorest members of societies within these conflict ridden countries often can’t afford to pay people smugglers, thus the majority of asylum seekers who reach the UK or Europe in this way come from wealthier backgrounds. Often individuals pay for the journey with their life savings, their family’s life savings or community contributions, and in some instances it can cost them their lives. Causes of death can be due to a number of circumstances such as: extreme weather; unseaworthy boats; beatings from smugglers; drowning; starvation; dehydration; suffocation and in some cases suicide out of desperation.
The increase in European and UK border control makes entering Europe progressively difficult, the visa restrictions and increased security has gained media attention as “Fortress Europe” which propels smugglers further in finding extreme methods of trafficking people across the borders.
Within the Schengen area of Europe external borders in terms of sea, land and air, are guarded by Frontex who employ a border surveillance system and European Border Guard Teams, whose mission is to reduce the number of irregular migrants entering the country. The UK has its own border agency the UKBA who employ over 23,500 staff in protecting the UK’s borders.
There is a legal framework for people crossing the borders by boat which divides responsibility between Shipmasters, and State parties:
Two Conventions: The 1982 United Nations Convention on the Law of the Sea and the 1974 International Convention for the Safety of Life at Sea (SOLAS) place the Shipmaster under an obligation to assist those in distress at sea, regardless of any circumstances such as nationality etc.
In terms of State parties, several international conventions obligate them to ensure appropriate rescue arrangements for distress calls received within their area of responsibility. These include:
– 1982 United Nations Convention on the Law of the Sea, Article 98(2) (UNCLOS)
– 1974 International Convention for Safety of Life at Sea, Chapter V, Regulation 7 (SOLAS)
– 1979 International Convention on Maritime Search and Rescue, Chapters 2.1.10 and 1.3.2 (SAR)
The State must aim to relieve the Shipmasters of responsibility by arranging disembarkation of those rescued as soon as possible. The State responsible for those rescued depends on the SAR region in which the survivors were recovered, the State responsible must provide a place of safety for survivors. Disembarkation should not be delayed for procedures such as screening or status assessment. (Guidelines on Treatment of Persons Rescued at Sea – Resolution MSC 167(78).
For further information see the following guidelines: http://www.marisec.org/rescueatsea.pdf
International Refugee Law
Though there is a right for individuals to seek asylum, as enshrined by Article 14 of the UDHR, there is no corresponding obligation upon States to grant asylum. The word ‘receive’ was removed from the UDHR on the premise that member State’s should retain their sovereignty in being able to decide who could enter their territory. Therefore international refugee and human rights law does not offer any concrete protection for refugees until they enter the territory in which they seek refuge. As a result, the onus is on the refugee themselves to escape persecution.
As a consequence of this, States are able to introduce stringent visa measures for refugee producing countries. The reasons behind this are obvious in that no member State wants an influx of asylum seekers from a particular country. Once this occurs within Europe the first member State to receive applicants remains responsible for those individuals in processing their application and offering them refuge (via the Dublin Regulation – which is why Italy’s refugee system is under intense pressure). The politics of the situation seems like a playground quarrel and ultimately that’s what it is, clearly if all member State’s removed visa restrictions, some of the barriers for entry would be removed, but there is no legal requirement to do this and therefore it is unlikely this will ever happen.
As can be seen the protection for those residing in conflict ridden countries is relatively weak, however once applicants reach the State in which they seek sanctuary, Article 33 of the International Convention on the Status of Refugees (‘Geneva Convention’) becomes active. Article 33 is the right to ‘non-refoulement’ which means that once an applicant is under a State’s jurisdiction they cannot be returned to a territory ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.‘ Consequently State’s must process an individual’s asylum claim before returning them to their country of origin. If they satisfy the member State’s requirements for refugee status they will be allowed to remain.
Article 33 of the Geneva Convention is seen to be ‘the cornerstone’ of refugee protection. Read in conjunction with Article 14 of the UDHR it offers significant protection to those who manage to escape their country and reach sanctuary. International maritime law also aims to protect those who take to the seas in seeking safety. But that protection only starts once people start their journey, and as shown above, even with that protection people continue to lose their lives.
As discussed there are many barriers for asylum seekers in reaching sanctuary. With no legal framework of absolute responsibility for member States to offer resettlement, or to remove visa requirements, the onus of responsibility for the safety of refugees realistically remains upon themselves. Though their countries of origin are ultimately responsible, in the real world safety does not become apparent until refugees start their perilous journey to sanctuary.
– Katie Bales
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