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CRC Concluding Observations on the Holy See

Published on February 5, 2014        Author: 

The UN Committee on the Rights of the Child released today its concluding observations on the second periodic report of the Holy See. The report is making waves in the media because of the Committee’s very strong condemnation of the inadequacy of the Catholic Church’s response to the sexual abuse of children by its clergy all over the world. The full report is available here, and has many points of interest. The first, and indeed the most crucial from the standpoint of public international law, is how the Committee defines the scope of the Holy See’s obligations under the Convention, in para. 8:

The Committee is aware of the dual nature of the Holy See’s ratification of the Convention as the Government of the Vatican City State, and also as a sovereign subject of international law having an original, non-derived legal personality independent of any territorial authority or jurisdiction. While being fully conscious that bishops and major superiors of religious institutes do not act as representatives or delegates of the Roman Pontiff, the Committee nevertheless notes that subordinates in Catholic religious orders are bound by obedience to the Pope in accordance with Canons 331 and 590. The Committee therefore reminds the Holy See that by ratifying the Convention, it has committed itself to implementing the Convention not only on the territory of the Vatican City State but also as the supreme power of the Catholic Church through individuals and institutions placed under its authority.

This paragraph is the necessary starting point for practically all of the analysis that follows, and indeed the representatives of the Holy See have already put it into question (see the second para.). The Committee is essentially saying that the Holy See doesn’t merely have obligations under the Conventions towards children within the Vatican City limits – if there even are any – but also towards the millions of children whose lives are affected by individuals or institutions under Church authority, be it local priests or Church-run schools. This is, in other words, a massive claim on the Convention’s extraterritorial application, and if I’m not mistaken this is the first time it has been made so explicitly by a treaty body with respect to the Holy See. Note in this regard that the Committee does not employ the language of the jurisdiction clause in Article 2(1) CRC, nor makes it clear under what theory exactly the Convention applies extraterritorially on such a scale.

The bottom line of the Committee’s approach is that if, for instance, there are reports of sexual abuse of children by Catholic clergy in Ireland, both Ireland and the Holy See have a positive obligation to protect and ensure the human rights of these children (see paras. 37-38, 43-44). In that sense the Committee’s report complements rather well the European Court’s judgment of last week in O’Keeffe v. Ireland (application no. 35810/09), in which the Court found that Ireland failed to protect a schoolgirl from sexual abuse by a lay teaching in a Catholic school. On the whole, the Committee’s findings with respect to the sexual abuse of children are quite damning – see, e.g., para. 29: ‘The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry.’

Outside the question of sexual abuse, the report’s many findings and recommendations frequently demonstrate a clash of worldviews between the obviously very progressive, human-rightsy Committee and some of the socially conservative beliefs of the Catholic Church. The Committee thus recommends the Holy See to review its position on abortion, contraception, sexual orientation, family diversity, etc. (Good luck with that.) In that regard, the bit I found positively entertaining (and oh-so-very-Jesuit) is the Committee’s recommendation to the Holy See to (paras. 22 & 24):

strengthen its efforts to make all the provisions of the Convention widely known, particularly to children and their families, through, inter alia, developing and implementing specific long-term awareness-raising programmes, and including the provisions of the Convention into school curricula at all levels of the Catholic education system using appropriate material created specifically for children. … The Committee urges the Holy See to provide systematic training on the provisions of the Convention to all members of the clergy as well as Catholic orders and institutions working with and/or for children, and to include mandatory modules on children’s rights in the teachers’ training programmes as well as in seminaries.

 

Saar Papier v Poland: Comparative Public Law and the Second-Ever Investment Treaty Award

Published on February 3, 2014        Author: 

            Jarrod Hepburn is a Lecturer in Law at the University of Exeter, UK.

There has been much discussion in recent years – and in recent weeks on this blog – of the potential for investment treaty arbitration to benefit from a ‘comparative public law’ approach. In brief, the approach conceives of investment treaty arbitration as a form of public law, and calls for tribunals to draw on comparative domestic constitutional and administrative law, as well as other regimes of international public law such as WTO law and human rights law, to give content to the often vaguely-worded standards of typical investment treaties.

In the midst of contemporary enthusiasm for comparative public law, it is tempting to think that the approach is a new one that has been growing in prominence only over the last few years. However, this week brings news from Investment Arbitration Reporter that an UNCITRAL-rules investment treaty award dating from 1995, Saar Papier Vertriebs GmbH v Poland, has been unearthed. Amongst other aspects detailed by IAReporter, the case is particularly notable for its explicit use of domestic administrative law to interpret the provisions on indirect expropriation in the Germany-Poland BIT.

Indeed, this newly-uncovered investment treaty award – only the second ever (currently) known to be rendered, following AAPL v Sri Lanka in 1990 – contains intriguing indications that the comparative public law approach is a practically useful one for investment treaty arbitration. Furthermore, the age of this award raises the tempting view that, rather than being a new development in the field, comparative public law has been there all along.

However, as I discuss below, despite the treaty context of the claim, it is unclear whether the Saar Papier tribunal considered itself to be applying international law. Without this international law framework, it becomes more difficult to characterise the case as an instance of comparative public law at work. Read the rest of this entry…

 
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Maximilian Schell RIP

Published on February 1, 2014        Author: 

 

Filed under: EJIL Analysis
 
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Announcements: Chair in PIL at UCL, Workshop at IALS, ILA/ASIL Joint Meeting

Published on February 1, 2014        Author: 

1. The Faculty of Laws at University College London has advertised a chair in public international law. The current appointment is being made to replace Professor Catherine Redgwell, who has taken up the Chichele Chair at Oxford. Closing date is 20 February. Details here.

2. The Institute of Advanced Legal Studies at the University of London is organising a workshop on National Security and Public Health as exceptions to Human Rights’ on 29th May 2014 and is now calling for papers. The Institute is honoured to announce that the keynote speaker will be Professor Malcolm Dando who will speak on “Threats of dual use biomedical research – when nation security and public health collide”.  Please note the deadline for submissions is 14th February 2014. All the information and the call for papers can be found here.

3. Register by February 7, 2014 to snap up the advantageous “Early-Bird Rate”– saving $165 over the walk-up rate– for the historic joint meeting between the 150-year-old global International Law Association and the American Society of International Law, running April 7-12, 2014.  The festivities will take place at the International Trade Center, next to  the Washington Mall, during the height of Washington’s lovely Cherry Blossom Season.   Family members will enjoy the trip too, since the Trade Center is  close to all the best tourist stops in the nation’s capital, including the National Gallery, the Air and Space Museum, the Lincoln Memorial, the Washington Monument, the Spy Museum, the Kennedy Center and the list goes on.  Incredible program of public and private international law debates is described at the ILA website or the ASIL website .  Adjacent J.W. Marriott Hotel at 1331 Pennsylvania Avenue has conference room rates that are well below market for Cherry Blossom Time.  Notables including judges of the International Court of Justice, the International War Crimes Tribunals, and Supreme Courts around the world will be at the ILA-ASIL Joint Meeting to engage in our robust debates.

Filed under: Announcements and Events
 
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