Jus Humanis Journal Issue 5 by jus humanis

Jus Humanis Journal of International Human Rights Law

HUMAN RIGHTS AND CHILDREN

5 ISSUE // JUNE 2021

WHO WE ARE AND WHAT WE DO JUS HUMANIS IS A POLITICALLY INDEPENDENT ORGANISATION AND THE OPINIONS EXPRESSED IN THE JOURNAL BELONG TO THE AUTHORS ONLY.

YOU CAN FIND US VIA OUR FACEBOOK PAGE: @JUSHUMANIS IF YOU WANT TO BE INVOLVED, CONTACT US VIA FACEBOOK PAGE @JUSHUMANIS

EDITORS: ENRIQUE ALONSO-CALO SOTO CRISTINA SNEGUR LUI P. PALMARES

EDITORIAL TEAM

Cristina Snegur is the Secretary of Jus Humanis and editor of Jus Humanis Journal. Cristina is a Moldovan lawyer who has received her Master of Arts in International Law and Human Rights from the University of Tartu, Estonia. In the meanwhile, she participated in a traineeship programme at the "Sorainen" Law Firm, where she carried out legal analyses of issues related to: Human Rights, EU law, privacy law, property law and ethics. She decided to deepen her knowledge of Human Rights and is currently doing her LLM In International Human Rights Law at Lund University, Sweden. Her main interest is focused on rights of women and children.

Enrique Alonso-Calo Soto is a member of the Jus Humanis Board and editor of Jus Humanis Journal. Enrique is a Spanish lawyer currently attending the International Human Rights Law Master's program at Lund University, Sweden. He has worked at a Spanish law firm and as a member of the Jean Monet Research Group in International Human Rights law before beginning his studies in Lund. His main interests include public international law, migrations and refugee law and the implications of technological developments in the human rights field.

Lui P. Palmares is a member of the Jus Humanis Board and editor of Jus Humanis Journal. Lui is a Filipino lawyer, currently taking up International Human Rights Law at Lund University. She started her legal career as an Associate in a boutique law firm in the Philippines. efore starting her studies at Lund University, she worked as Court Attorney in the Court of Appeals and the Supreme Court.

IN THIS ISSUE

Editorial piece by Jordy Esschendal .................................................p.4 Climate Change and Child Marriage: Another Unwelcome Correlation? by Florien van Weerelt.........................................pp.6-11 Privatizing Asylum - the failures of institutionalised care in Ireland by Christopher Cowan ......................................pp.12-15 In(efficiency) of the Croatian social services system by Romana Crgol ..............................................pp.17-21 Online Sexual Exploitation of Filipino Children During Pandemic by Lui Palmares ...............................................pp.22-26 Children’s rights and Climate Change: The Youth for Climate Justice Case by Margarida Ravara..........................................pp.28-34 How Rules of International Humanitarian Law and Islamic Law Protect Children’s Rights in Armed Conflicts by Nicole Fraccaroli .........................................pp.36-41 Children’s Rights status check: the effect of COVID-19 responses in Swedish primary schools by Sara Helgesson ............................................pp.43-47 The rise of “modern” child labour through the digital economy in Brazil by Liliana Picchi Cappuccelli .............................pp.48-53 Online education and poverty: how the pandemic has challenged the right to education across Europe by Daniela Silipigni............................................pp.55-57 Territorial marginalization: A threat to childrens’ development and equal opportunities by Lina Olsson ................................................pp.58-62 Redefining Domestic Violence and challenging its “Privacy” through the prism of children’s rights by Cristina Snegur.............................................pp.64-69

Cover: Elena Arvasi "Black & White", Source: www.flickr.com

EDITORIAL PIECE BY JORDY ESSCHENDAL As individuals, children are entitled to the same general human rights adults are entitled to. Apart from these general rights, it is paramount that the fundamental human dignity of all children is recognized and that everything is done to ensure their well-being. All so that children can develop to their full potential.

Dear readers,

I am delighted to introduce this latest issue of the Jus Humanis Journal of International Human Rights Law. For the second time this academic year, our talented editorial team has bundled the voices of an equally talented group of students into a journal filled with engaging perspectives on human rights. This edition provides us with a special focus on the fundamental issue of children’s rights. The importance of this topic is clearly illustrated in the preamble of one of the most ratified human rights conventions to date: the United Nations Convention on the Rights of the Child. In this Convention, the international community clearly takes notice of children’s special status.

From the diverse selection of articles in this edition, it becomes clear that children’s interests play a major role in many fields of law and society in general. From issues of representation to the risk of exploited vulnerability; from intergenerational themes like climate change to the safety of children in their own homes. Our authors clearly illustrate that children’s rights are as multifaceted and relevant as ever. To conclude, I would like to thank our fantastic editorial team and all the contributing students for making this second issue possible. As a representative of Jus Humanis, I can only be grateful that we can continue our goals of highlighting and promoting human rights in this challenging year.

Enjoy reading!

Sincerely, Jordy Esschendal President of Jus Humanis

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Elena Arvasi, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

CLIMATE CHANGE AND CHILD MARRIAGE: ANOTHER UNWELCOME CORRELATION? Article by Florien van Weerelt A. Introduction

B. Child marriage

With their inclusion in the United Nations Sustainable Development Goals (“SDGs”), both the eradication of child marriage (Target 5.3) and climate action (Goal 13) have been recognised as important objectives for the international community. As identified by the United Nations Children’s Fund (“UNICEF”), children are particularly vulnerable to climate change: “as more extreme weather events increase the number of emergencies and humanitarian crises, it is children who will pay the highest price.” At the same time, it is well-established that the incidence of child marriage increases in humanitarian crises induced by natural disasters. Natural disasters exacerbate pre-existing inequalities, destroy schools, and tend to hit already vulnerable groups such as children, especially girls, the hardest. Building on the established link between natural disasters and child marriage, it must be acknowledged that as climate change renders natural disasters, both sudden and slow-onset, increasingly common, progress on the eradication of child marriage may falter. I will explore the ways in which climate change may exacerbate risk factors for child marriage and to what extent these have been addressed in light of the 2030 Agenda.

Child marriage is defined as a marriage where at least one of the parties is under the age of 1 eighteen and predominantly affects girls. Though not expressly prohibited in the 1989 Convention on the Rights of the Child (“CRC”), the CRC does recognise a range of rights, including the rights to health, education and protection from violence and sexual abuse, which are all violated by child marriage. Likewise, when read in light with other international or regional instruments, child marriage is understood as prohibited by international law. For example, the 1979 Convention on the Elimination of Discrimination Against Women (“CEDAW”) recognises child marriage as having no legal effect while the 1990 African Charter on the Rights and Welfare of the Child expressly prohibits child marriage. Despite widespread prohibition and much global progress, child marriage persists. _____________________________

1 THRW, 'Marry Before Your House Is Swept Away: Child Marriage in

Bangladesh' (Human Rights Watch 2015) <https://www.hrw.org/sites/default/files/report_pdf/bangladesh0615_w eb.pdf> accessed 14 April 2021 1

Photo: SAM Nasim, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

Globally, twelve million girls are married before the age of eighteen each year, equating to nearly one 2 girl every three seconds. The risk factors for child marriage are complex and often intersectional, including, but not limited to, poverty and gender inequality, for example in the form of discriminatory social norms and practices or lack of access to education. While this analysis will consider the aforementioned factors, it is important to recognise that not all risk factors for child marriage will be addressed within the scope of this article. Likewise, it must be recalled that these are risk factors for rather than causes of child marriage. In 2017, the Human Rights Council recognised that the risk of child marriage is highly exacerbated in humanitarian crises. 3 While humanitarian crises tend to be the product of conflict or natural disasters, this article shall focus on the impact of natural disasters on child marriage. However, prior to engaging in this analysis, the concept of a natural disaster warrants some consideration. C. "Natural" Disasters In considering natural hazards, it is important to distinguish natural disasters from natural hazards (such as earthquakes or hurricanes), as it is increasingly understood that natural hazards alone do not cause disasters. Rather, it is clear that natural hazards impact different people differently depending on a range of socio-economic factors. Thus, natural disasters occur when natural hazards hit vulnerable people. This vulnerability stems from the culmination of unsafe conditions, dynamic pressures and root causes. 4 For example, as acknowledged by the World Bank, “[p]oor people are typically more exposed to natural hazards, losing more as a share of their wealth and are often unable to draw on support from family, 5 friends, financial systems, or governments.” ______________________________ 2 Girls Not Brides, 'About Child Marriage' (Girls Not Brides, 2021)

<https://www.girlsnotbrides.org/about-child-marriage/#sources> accessed 16 April 2021. 3 UNGA Res 35/16 (12 July 2017) UN Doc A/HRC/RES/35/16. 4 Benjamin Wisner, At Risk (Routledge 2004), 87. 5 The World Bank, 'Natural Disasters Force 26 Million People into Poverty and Cost $520Bn In Losses Every Year' (2016) <https://www.worldbank.org/en/news/pressrelease/2016/11/14/natural-disasters-force-26-million-people-intopoverty-and-cost-520bn-in-losses-every-year-new-world-bankanalysis-finds> accessed 16 April 2021.

Likewise, in General Comment No. 37, the CEDAW Committee drew particular attention to the genderrelated dimensions of disaster risk reduction in the context of climate change and noted that “situations of crisis exacerbate pre-existing gender inequalities.” 6 Moreover, the very idea that natural hazards are ‘natural’ must be questioned. We have entered the Anthropocene: an epoch in which the impact of human activity is so substantial that we have exceeded, and are set to continue exceeding planetary boundaries. While not every natural disaster is induced by climate change, the Intergovernmental Panel on Climate Change (IPCC) has recognized that “[a] changing climate leads to changes in the frequency, intensity, spatial extent, duration, and timing of extreme weather and climate events, and can result in unprecedented extreme weather and climate events.” 7This is exemplified through the fact that there were three times as many natural disasters around the world between 2000 and 2009 than 1980 and 1989, with 80% of these events being climaterelated.8In analysing these impacts, it is important to note that climate change exacerbates both suddenonset disasters, such as flooding and earthquakes, and slow-onset disasters, such as desertification and 9 sea-level rise. D. Climate Change and Child Marriage As recognised by McLeod, Barr and Rall, “according to the Notre Dame Global Adaptation Initiative (NDGain), four of the five countries with the highest rates of child marriage [are] within the top ten per cent of 10 most climate-vulnerable countries.” This may be explained by the fact that climate change will exacerbate, amongst other issues, poverty and gender inequality, both in the form of discriminatory practices as well as lack of access to education. ______________________________ 6 CEDAW Committee, ‘General Recommendation No. 37 on Gender-

related dimensions of disaster risk reduction in the context of climate change,’ 7 February 2018, UN Doc CEDAW/C/GC/37, para 2. 7 Christie McLeod, Heather Barr and Katharina Rall, 'Does Climate Change Increase the Risk of Child Marriage: A Look at What We Know - And What We Don't - With Lessons from Bangladesh and Mozambique' (2019) 38 Columbia Journal of Gender and Law 96, 111. 8 Holly G. Atkinson and Judith Bruce, 'Adolescent Girls, Human Rights and the Expanding Climate Emergency' (2015) 81 Annals of Global Health 323, 323. 9 The Platform on Disaster Displacement, 'Key Definitions’ (The Platform on Disaster Displacement, 2021 <https://disasterdisplacement.org/the-platform/key-definitions> accessed 16 April 2021. 10 McLeod, Barr and Rall, (n7), 113.

Jus Humanis Journal of International Human Rights Law // June 2021

Likewise, as noted in a 2015 Human Rights Watch Report, entitled ‘Marry Before Your House Is Swept Away,’ families in Bangladesh “indicated that a cyclone, another flood, an especially high or long flood, or the arrival of river erosion at their doorstep can push a family from a situation where they are barely managing to get from one day to the next to one where child marriage becomes part of a desperate survival strategy.”15 Critically, in the last 20 years, major floods have more than 16 doubled, from 1,389 to 3,254, compounding poverty for many families. The World Bank estimates that by 2030 an additional 68 to 132 million people will be pushed into poverty as a result of climate change. This may undo much progress on the eradication of child marriage.17 For example, while Kenya had reduced child marriage rates from 34% in 1994 to 23% in 18 2016, TIME Magazine has noted that climate change has given rise to a resurgence of child marriage in northern Kenya, especially amongst 19 pastoral communities, in the last five years. This corresponds with the estimation that those working in agricultural sectors are likely to be particularly hard hit by climate change, thus further compounding the correlation between agricultural 20 employment and multidimensional poverty.

Photo: Riccardo Maria Mantero, flickr.

The impact of these consequences on the incidence of child marriage shall be further explored below. D.1. Poverty At the moment, 1.3 billion people live in multidimensional poverty, with nearly half of these 11 being children. Poverty has been widely cited as a risk factor for child marriage, with nearly 40% of girls in the world's poorest countries being married 12 before they turn eighteen. This is twice the global average. Moreover, 84.3% of all multidimensionally poor people live in Sub-Saharan Africa and South 13 Asia, which also tend to be particularly prone to natural disasters. Building on this connection, qualitative evidence suggests that as natural disasters compound poverty and the vulnerability of children, child marriage rates may increase. For example, while 41% of girls in Nepal were already vulnerable to child marriage prior to the 2015 earthquakes, the earthquakes “dramatically narrowed the limited options they once had and increased their 14 vulnerability to child marriage.” _____________________________

D.2. Gender Inequality Similarly, climate change may increase reliance on discriminatory and patriarchal practices normalising, and even encouraging, child marriage. 21 As Dr. Mary Nyasimi told TIME Magazine, “[t]hough climate change affects every human on Earth, it is likely to harm young girls more than any other age or gender demographic… _____________________________

15 HRW, (n1). 16 Red Cross Red Crescent Climate Centre, 'UN: Climate-Related

11 UNDP, 'The 2020 Global Multidimensional Poverty Index (MPI)'

(UNDP Human Development Reports) <http://hdr.undp.org/en/2020MPI> accessed 19 April 2021. 12 Girls Not Brides 'Why Child Marriage Happens' (Girls Not Brides, 2021) <https://www.girlsnotbrides.org/about-child-marriage/why-childmarriage-happens/> accessed 16 April 2021. 13 UNDP, (n11). 14 Girls Not Brides, 'The Roving Shelters: Improving Girls’ Lives in PostEarthquake Nepal' (Girls Not Brides, 2016) <https://www.girlsnotbrides.org/articles/the-roving-sheltersimproving-girls-lives-in-post-earthquake-nepal/> accessed 16 April 2021.

19 20 21

Disasters Increase More Than 80% Over Last Four Decades' (Climate Centre, 2020) <https://climatecentre.org/news/1336/un-climaterelated-disasters-increase-more-than-80-over-last-four-decades> accessed 18 April 2021. The World Bank, 'Poverty Overview' (The World Bank) <https://www.worldbank.org/en/topic/poverty/overview> accessed 19 April 2021. Neha Wadekar, 'Kenya Is Trying to End Child Marriage. But Climate Change Is Putting More Young Girls at Risk' [2020] Time Magazine <https://time.com/5878719/climate-change-kenya-child-marriage/> accessed 16 April 2021. Ibid. UNDP, (n11). Director of Inclusive Climate Change Adaptation for a Sustainable Africa.

Jus Humanis Journal of International Human Rights Law // June 2021

In large part, that’s because of deeply ingrained gender disparities all over the world, although these play out in different ways across cultures.” 22

The excess time spent collecting water may well lead to girls being taken out of school at an earlier age, or never even attending at all.

In many parts of the world, girls are viewed as financial burdens and, upon their marriage, their parents must pay a dowry to the groom to relieve this burden. At the same time, patriarchal beliefs about the ‘value of a young girl’ come into play to encourage child marriage. This is because, in places like Bangladesh, “dowry is lower or maybe 23 waived completely for very young brides.” The pressure of dowry payments is exacerbated in times of crises, especially because impoverished families will be hit the hardest by natural disasters, potentially destroying their homes. As noted by HRW, for many people in Bangladesh, the loss of a house may be equated to the loss of status, which may reduce a family’s bargaining power when arranging their daughter’s marriage. This means it may take longer to find a husband for their daughter, thus increasing the dowry to be paid. Consequently, as natural disasters increase in frequency and intensity, families may try to arrange 24 earlier marriages for their daughters.

Access to education is crucial to preventing child marriage, with research from the World Bank suggesting that “each year of secondary education may reduce the likelihood of marrying before the age of 18 by five percentage points or more in many countries.”28 Yet, worldwide, 132 million girls remain out of school.29 Natural disasters may force schools to shut down temporarily, whether because of destruction or their use as evacuation centres, which may result in long-term delays to girls’ education. Moreover, when economically strained, “girls’ education is often the first thing families sacrifice.”30This was seen in Pakistan where, following the 2010 floods, only 7% of boys did not return to school, whereas 22% of girls did not return.31

Moreover, as climate change increases global drought and desertification, traditional gender roles, such as the responsibility of women and girls to collect water, will be reinforced. Climate change will force girls to travel further and longer to collect water, with UNICEF estimating that by 2040 nearly 600 million children will live in areas with extremely limited water resources.25 For example, in Mozambique, where 53% of girls are married 26 before their eighteenth birthday, increased drought has meant women and girls now spend in increased drought has meant women and girls now spend in excess of six hours searching for and collecting water, as opposed to two hours prior to 27 the drought. _____________________________

22 ‘Wadekar, (n18). 23 HRW, (n1), 26.

24 Ibid, 42. 25 UNICEF, 'Nearly 600 Million Children Will Live in Areas with Extremely

Limited Water Resources By 2040' (2017) <https://www.unicef.org/press-releases/nearly-600-million-childrenwill-live-areas-extremely-limited-water-resources-2040> accessed 20 April 2021. 26 Girls Not Brides, 'Mozambique' (Girls Not Brides, 2021) <https://atlas.girlsnotbrides.org/map/mozambique> 27 Care International, 'Hope Dries Up? Women and Girls Coping With Drought And Climate Change In Mozambique' (Care International 2016), <https://careclimatechange.org/wp9 content/uploads/2016/11/El_Nino_Mozambique_Report_final.pdf>

D.3. Another Unwelcome Correlation? This analysis has sought to shed light on some of the ways in which climate change will impact child marriage. While climate change does not directly cause child marriage, there is an important correlation between the two in that it exacerbates many of the risk factors for child marriage. Nonetheless, research on this correlation remains underdeveloped and is primarily supported by qualitative data. McLeod, Barr and Rall’s research offers two potential explanations for this: firstly, “no one has previously thought to connect the two issues and to ask the right questions;” and, secondly, “governments in countries most affected by climate change do not necessarily have robust ______________________________ 28

The World Bank, 'Child Marriage Will Cost Developing Countries Trillions of Dollars By 2030' (2017) <https://www.worldbank.org/en/news/pressrelease/2017/06/26/child-marriage-will-cost-developing-countriestrillions-of-dollars-by-2030-says-world-bankicrw-report> accessed 16 April 2021. 29 UNICEF, 'Girls' Education' (UNICEF) <https://www.unicef.org/education/girls-education> accessed 20 April 2021. 30 Plan International, '5 Ways Climate Change Is Disrupting Girls’ Lives' (Plan International, 2021) <https://planinternational.org/emergencies/5ways-climate-change-disrupting31 girls-lives> accessed 16 April 2021. Plan International, 'Girls' Education Under Attack' (Plan International 2013) <https://plan-uk.org/file/girls-education-underattackpdf/download?token=l-sugVO9> accessed 21 April 2021.

Jus Humanis Journal of International Human Rights Law // June 2021

systems for monitoring, documenting and responding to environmental changes, and affected locations are sometimes in remote and marginalized areas of the 32 country.” While this article has explored a number of ways in which climate change may impact certain risk factors for child marriage, it is important to recall that there are many risk factors, often highly contextual, that have not been sufficiently explored and warrant further investigation. E. To What Extent Is This Correlation Recognised and Addressed? The incorporation of both climate change and child marriage in the SDGs demonstrates a worldwide commitment to these issues. However, it is submitted that in order to progress on either matter, climate change and child marriage must be addressed in tandem. A focus on climate action without consideration of gender inequality and child marriage may perpetuate such harms. Likewise, policies addressing child marriage without consideration of the impacts of child marriage will fail to make significant progress, as demonstrated through the resurgence of child marriage in Kenya. For this reason, it is crucial to examine to what extent international instruments and treaty bodies have addressed the correlation. International recognition should encourage both state and non-state actors to create new policies, or amend existing ones, in order to adequately address both climate change and child marriage. It is encouraging that human rights treaty bodies, such as the CEDAW and CRC Committees, are increasingly integrating climate considerations into their evaluations and recommendations. In General Comment No. 37, the CEDAW Committee urged States to take action to address “existing and new risk factors for gender-based violence …within the context of disaster risk reduction and climate change.”33 Likewise, following the 2015 earthquakes, the CRC Committee recommended that Nepal “undertake an assessment of the impact of the 2015 earthquakes on girls’ vulnerability to child marriage and apply those findings to guide the implementation of measures to 34 address the increased risk of child marriage.” ______________________________ 32 McLeod, Barr and Rall, (n7), 111. 33 CEDAW Committee, (n9), para 57(a). 34 CRC Committee, Concluding Observations on the Third to Fifth Periodic

Reports of Nepal, UN Doc CRC/C/NPL/CO/3-5 (2016), para 40(d).

Photo: ‫دﻳﻤﻪ اﻟﺸﺎﻳﻊ‬, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

This represents a positive integration of climate concerns into human rights instruments and reaffirms the need for multi-dimensional human rights assessments. Conversely, while the 1992 United Nations Framework Convention on Climate Change (“UNFCCC”) does not expressly adopt a humanrights based approach, it does incorporate human rights, both through the 2010 Cancun Agreement and the Preamble to the 2015 Paris Agreement. These Agreements demonstrate the international community’s increasing acceptance that climate change impacts a range of human rights, though child marriage is not explicitly mentioned. Likewise, the Preamble of the 2015-2030 Sendai Framework for Disaster Risk Reduction recognises that women and children are disproportionately affected by disasters. In order to address this, an express call for disaggregated data is made, which would play an important role in increasing our understanding of the correlation between climate change and child marriage. The disproportionate vulnerability of girls to climate change as well as child marriage stems not from some inherent vulnerability but from discriminatory economic, social and cultural structures. Thus, in order to increase resilience against each of these practices, the human rights of the girl child must be respected, protected and fulfilled.

Crucially, policies empowering girls, whether through education, financial independence and/or increased representation and participation, will work towards the eradication of child marriage as well as strengthen society’s climate change adaptation and disaster risk reduction strategies. F. Conclusion While climate change is widely acknowledged to be a children’s rights crisis, there tends to be a focus on the more direct consequences of climate change, such as adverse health conditions, displacement or food insecurity. While these direct consequences rightfully receive much attention, it is also important to recognise that climate change will have numerous indirect, and more unpredictable, impacts on children’s rights, including on child marriage. Though not directly, climate change will exacerbate many of the risk factors for child marriage, including poverty and gender inequality. Consequently, in moving forward, it is crucial that the link between the two is expressly acknowledged and implemented in law and policy. Such an intersectional approach is crucial to the achievement of the 2030 Agenda.

Florien van Weerelt is currently pursuing her LLM in International Human Rights Law at Lund University. She holds an LLB from University College London (UCL), of which a year was spent studying at the National University of Singapore (NUS).

Jus Humanis Journal of International Human Rights Law // June 2021

PRIVATIZING ASYLUM - THE FAILURES OF INSTITUTIONALISED CARE IN IRELAND Article by Christopher Cowan Direct Provision is a reception system for asylum seekers in Ireland, according to which people are accommodated in communal institutional centres which are by and large run on a for-profit basis by private contractors.1 It was an emergency response to an escalating crisis in processing and supporting newly arrived asylum seekers in Ireland. In 1991, there were 9 asylum applications while by the year 2000 this had reached 10,938 applications.2 The current system has exposed the failures of the State to fulfil its international obligations to protect the rights of children. Direct Provision has impacted on several key children’s human rights, in particular the right to the enjoyment of the highest attainable standard of health, the right to education, and the right to respect for private and family life. Ireland has a dark past with institutionalised care, a Catholic-run system of Mother and Baby Homes across the country housed unmarried mothers and babies for most of the 20th Century. There was no oversight from the State and abuse has since been widely reported – one home reported 798 deaths between 1925 to 1961 with a considerable number of these children 3 buried in an unmarked mass grave. Direct Provision is an echo of this institutionalised model with ineffective oversight by the State – the violations may not be as grievous, but it speaks to a wider systemic problem of care in Ireland. Indeed, to sub-contract a service to a non-state actor does not absolve the State of its obligations to respect, protect and fulfil the rights of children living in 4 Direct Provision. ______________________________ 1 ‘Direct Provision’ (Doras) < http://doras.org/direct-provision/> accessed

19 April 2021

2 Mark Hilliard ‘Direct provision in Ireland: How and why the system was

introduced’ (The Irish Times, 19 November 2019 <https://www.irishtimes.com/news/social-affairs/direct-provision-inireland-how-and-why-the-system-was-introduced-1.4086552> 3 ‘Tuam babies: Excavation of children’s mass grave to begin in 2019’ (BBC News, 29 December 2018) <https://www.bbc.co.uk/news/world-europe46708762> 4 Róisín Dunbar, Lauren Burke, Neasa Candon, Meghan Reid, Sien Crivits, Stacy Wrenn, Angelica Shilova, ‘Direct Provision’s Impact on Children: A Human Rights Analysis – A submission to the Minister for Children, Disability, Equality, Integration and Youth’ [2019] National University of Ireland Galway, Foreword

Photo: Mehedhi Hasan, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

The shortcomings of the current system have been acknowledged and the government has published a White Paper outlining a move towards a new International Protection Accommodation Policy, centred on a human rights, equality, and a not-forprofit approach.5

B. The right to education Article 28 of the UNCRC requires States to "recognize the right of the child to education, and with a view to achieving the right progressively and on the basis of equal opportunity". Although there is free education in Ireland, associated costs can exceed supports provided by 3 or 4 times, exacerbated by the modest weekly stipend of €29.80 for children and €38.80 for adults. In Ireland, most schools require the purchase of specific uniforms with no room for non-compliance. In this regard, Barnardos calculated an average annual cost of €735 for children in their first year of secondary school, placing a significant financial burden on children and their families.9 Following a series of protests the Irish Government established a Working Group in 2014 to make recommendations to reform Direct Provision – culminating in the McMahon Report.10 The report highlighted difficulties in completing homework, an inability to access study rooms without supervision, and poor or non-existent WIFI connections.11 These social costs influence the practical enjoyment of the right to an education; indeed the Committee on the Rights of the Child has observed that an education must empower the child in developing other capacities including human dignity, self-esteem, and self-confidence.12 To that degree it is important to remember that Article 12 of the UNCRC codifies a ‘right to be heard’, and in application of such right the Ombudsman collected these reflections from children in Direct Provision:

A. The right to the enjoyment of the highest attainable standard of health Article 24 of the UN Convention on the Rights of the Child (UNCRC) places an obligation on States to ensure the ‘enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health’. Therefore, children in Direct Provision are entitled on the same basis as Irish children to a General Practitioner (“GP”) visit card to cover certain primary care needs. Further, they are ordinarily entitled to a medical card (which is means assessed) and a wider range of health and social services free of charge.6 Although legislation in Ireland provides for access to healthcare on an equal basis to Irish citizens, this ignores the practical challenges facing children in Direct Provision. In this regard, a policy of dispersal in accommodating asylum seekers has led to children in rural areas unable to access local GP services. The Children’s Ombudsman reported that in some cases the nearest GP with capacity was up to 55 km from the asylum seeker’s accommodation.7 This problem is further exacerbated by a lack of public transport in rural areas. In these instances Direct Provision centres are required to provide transportation but in practice this service is highly 8 limited. The legislation may comply with the international obligations required of Ireland to provide for the highest attainable standard of health but the institutionalisation of care to the private sector has detached the State from its positive obligations, leading to a rights vacuum and a situation whereby children do not have real and effective access to primary health care. ______________________________

5 Department of Children, Equality, Disability, Integration and Youth, A

White Paper to End Direct Provision and Establish a New International Protection Support Service (Cm, 2021) 7 6 Direct Provision’s Impact on Children (n 4) 20 7 Direct Provision’s Impact on Children (n 4) 24 8 Direct Provision’s Impact on Children (n 4) 24

‘Not to be judged by the colour of your skin’ ‘If my friends in school weren’t making fun from the people who’s in quiet same situation as me I won’t be ashamed to tell them I am an asylum seeker!!! ‘Stop being racist!’

______________________________ The Real Cost of School 2020 (Barnados, 2020) <https://www.barnardos.ie/policy/the-issues/education/the-real-costof-school-2020> 10 https://nascireland.org/news/2019/mcmahon-report-working-groupprotection-process-and-direct-provision 11 Department for Justice and Equality, Working Group to Report to Government on Improvements to the Protection Process, including Direct Provision and Supports to Asylum Seekers (Final Report, 2015) 318 12 UN Committee on the Rights of the Child, ‘General Comment No. 1 (2001) on Article 29(1): The Aims of Education’ (2001) CRC/GC/2001/1, para 1 13 Ombudsman for Children’s Office, Direct Provision: Children’s views and experiences of living in Direct Provision (2020) 73, 75, 78 9

Jus Humanis Journal of International Human Rights Law // June 2021

Children in direct provision face considerable social stigma, which is exacerbated and vindicated through a system of privatised institutional care which does not place human rights at its centre. The effects of this stigmatisation are particularly concerning when we consider the often-poor relationships children have with their peers, which in turn violate the holistic enjoyment of their right to an education.

There are also considerable privacy concerns, with residents sharing rooms and overcrowding a normal feature. In this context, the COVID-19 crisis has brought into sharp focus the issue of overcrowding with a lack of social distancing to prevent the spread of infectious diseases. A survey carried out in May 2020 highlighted an infection rate of 1.9% of the total population resident within Direct Provision with the general population experiencing an infection rate equivalent to 0.5%.15

C. The right to respect for private and family life

Article 16 UNCRC states that ‘No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation’. The system of Direct Provision has broad impacts on family life, as barriers to the right to work contribute to considerable poverty, which subsequently impacts the practical realisation of the rights previously discussed. There are temporal restrictions attached to the right to work for asylum seekers with a requirement to wait for at least 5 months for the first instance decision before applying for a work permit. This leaves employers in a difficult position when considering whether to train an asylum seeker with only temporary permission to work – further exacerbating poverty in the family unit.14 ______________________________

Finally, Dr Geoffrey Shannon, the State appointed Special Rapporteur for Child Protection found in his 2019 Report that Direct Provision should be reformed to allow for ‘private living space, selfcatering facilities and culturally appropriate foods’. The distinct lack of a private and family life has wide reaching socio-economic consequences that impact various other rights contained in the UNCRC, particularly interrelated to the effective realisation of the right to the highest attainable standard of health in the current context of COVID19.

______________________________ Egle Gusciutte, ‘Leaving the most vulnerable behind: Reflection on the COVID-19 pandemic and Direct Provision in Ireland’ [2020] 28(2) Irish Journal of Sociology 237, 239

Direct Provision’s Impact on Children (n 4) 63

Photo: Christa SaysWhat, flickr.

Photo: Elena Arvasi, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

D. Conclusion The institutionalisation of International Protection has created a public-private dichotomy which leads to practical deficiencies in the realisation of children’s rights. The privatised model of Direct Provision has distanced the State from its traditional role of both oversight and practical implementation of children’s rights. The creation of this rights vacuum is compounded by the vulnerability of these children who already find themselves in the precarious situation of seeking asylum. The Irish State has failed to respect, protect, and fulfil the fundamental rights of health, education, and family life. In that regard, the Irish Government’s White Paper published promising an end to Direct Provision is to be broadly welcomed from a rights-centred perspective. 16 ______________________________

The move towards a not-for-profit system and direct oversight by the State will ensure the practical realisation of children’s rights. In this regard, the work of civil society remains important – to hold the State to account in implementing the recommendations of this White Paper and realising the universality of rights for all children.

16 Department of Children, Equality, Disability, Integration and Youth (n 5)

Christopher Cowan is is a first-year masters student enrolled in International Human Rights Law at Lund University. He has legal experience working in law firms in the UK and Ireland. His interests include LGBTQ+ rights, asylum and refugee law.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Elena Arvasi, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

IN(EFFICIENCY) OF THE CROATIAN SOCIAL SERVICES SYSTEM Article by Romana Crgol There can be no guarantee that things like this will not happen again. There are always awful things happening. There will always be evil people. To say that the state can fully eradicate these things would be nothing more than pretentious. Andrej Plenković, Croatian Prime Minister, April 6th 20211

A. Introduction On Easter morning a 2.5-year-old girl lost her life due to parental negligence and abuse in Croatia. Due to the lacking support of the social services system, occurrences like this became devastatingly more common. Croatian public is now wondering: who needs to take responsibility for cases like this, where the system repetitively fails the most vulnerable in the society - children? How many more children need to be tortured to death, raped, physically and mentally abused in order for the state to accept responsibility and modernize and change an outdated system? B. The "Nikoll" Case

TPlenković o smrti djevojčice: Odgovornost ministra Aladrovića se ne može povezati s pogreškama pojedinih ljudi (Plenković on the little girl ´s death: The liability of minister Aladrovic cannot be related with individual´s mistakes). L.F., Tportal. https://www.tportal.hr/vijesti/clanak/plenkovic-o-smrti-djevojcice-netreba-se-fokusirati-na-individualnu-odgovornost-u-ovom-slucajureagirali-smo-vrlo-brzo-nema-odgovornosti-ministra-aladrovica20210406 (updated: April 4th, 2021, accessed: April 21st, 2021)

.rkcilf ,ihcsoB araihC :otohP

Nikoll´s biological parents handed her over to the _____________________________

foster care system in a matter of months after she was born. Both of the biological parents, a 24-yearold mother and a 27-year-old father were previously convicted for domestic violence on several occasions. Biological parents have three more children together, aside from the tragically deceased Nikoll. Only Nikoll was in the foster care system, while her siblings were never exempted from the family. Namely, when Nikoll was born, the parents gave her away with an explanation that they have no means to take proper care of her. The older children remained in the family. However, the family was under social services system surveillance since the birth of their first child. When they handed Nikoll to the foster care system in the first place, they stated that they cannot act in “the best interest of the child” and therefore, are unable to provide adequate care. Five months ago, right after the parents got married, Nikoll was returned to their care upon their request.

Jus Humanis Journal of International Human Rights Law // June 2021

Both the social services system and the court estimated that the child will be facing “moderate risk” if returned to the biological parents, but for some reason decided that the “moderate risk” is not “risky” enough; hence, they returned the girl to the care of her, now married, biological parents. What followed was a private hell in her parental home. Nikoll´s grandma contacted the social services system on several occasions and pointed out that the parents, especially the mother, are abusive and neglective. She stressed out that Nikoll was depressed, auto-aggressive, often bruised and injured. On top of that, Nikoll´s hair was falling off, while concurrently she was developing a skin disease. Thus, her Grandma sought an emergency intervention. The director of the Centre for Social Welfare (Centre), who was subsequently fired, stated that neither he nor the social worker(s) in charge of the case had knowledge or information that anything was happening in the family. According to him, the children were monitored by the doctors at all times. Later on, he admitted that the social worker did notice a bruise on Nikoll´s cheek on one occasion but had no (legal) grounds to inspect the full body of the child. Afterwards, the social worker directed the parents to see the psychologist because of the signs of autoaggression that Nikoll has started to manifest. On the 30th of March, Nikoll was evaluated by a psychiatrist and sent back home with her mother. The very next day, the mother returned, in an ambulance, with severely injured Nikoll in her hands. Despite the efforts of the doctors, her tortured body did not survive and Nikoll died on Easter morning. The parents were arrested and consequently accused of causing serious injury with lethal consequence. The mother, first-accused, used inappropriate force while hitting Nikoll, and the father did nothing to prevent/stop it. As soon as the case reached the media, the public started to express dissatisfaction, anger and indignation with the system.

C. History repeats itself – Tatjana, Denis and the rest of the unnamed children One case from the early 1990s is very reminiscent of Nikoll´s tragedy. The same age of girls and mothers, but more importantly, the same inability of the system to recognize parental violence. The mother has separated from the biological father and gained full custody of a child, Tatjana. She moved in with her new partner in a rented apartment. The mother agreed that it would be better for Tatjana to stay at home with her new partner, instead of being in the kindergarten. Soon after, both the landlord and the biological father started noticing bruises and injuries on the little girl. Desperate father was visiting social workers, appealed to courts on multiple occasions, while trying to save his daughter from constant abuse and negligence. His effort was in vain. The police told him - “If something happens to your child, the 2 mother will be held responsible, not you” – like that would make a difference to a father who wants to protect his daughter. Ten days later, Tatjana was dead. Both the mother and her partner were accused, yet only the partner was convicted. The Court stated that the mother was unaware of her partner´s violent behaviour towards Tatjana. When it comes to the social services system and the state, the conclusion was that there was no omission on the part of the Centre. Therefore, neither the Centre nor the state was held responsible for Tatjana´s death. Tatjana´s death occurred in the 1990s, and one could argue that the system has developed throughout the years. And it has – at least to some extent. That´s why I would like to highlight one of the most recent cases that shocked Croatia and the world. In May 2017, a body of a 3-year-old Denis was found at one of the beautiful beaches that Croatia has to offer. ______________________________

Why is Nikoll in the first place even returned to such a family? Why the social welfare system had such a late reaction? Who should be held responsible for Nikoll´s death apart from her biological parents?

2 Tragedija male Nikoll podsjeća na slučaj iz 1994. Tatjana (2) je

pretučena, umrla je (Little Nikoll´s tragedy reminds on 1994 case. Tatjana (2) was beaten, she died). Index vijesti, Index.hr https://www.index.hr/vijesti/clanak/tragedija-male-nikoll-podsjecana-slucaj-iz-1994-tatjana-2-je-pretucena-umrla-je/2266785.aspx (updated: April 7th, 2021, accessed: April 21st, 2021)

Jus Humanis Journal of International Human Rights Law // June 2021

By some miracle, none of the children died. The family was under surveillance of the Centre for more than 10 years because of neglect and abuse of the eldest daughter who was exempted from the family. 4 Why the rest of the children wasn´t exempted remains unknown. The director of the Centre stated that there were no indicators, information or reports that would indicate a neglectful or abusive attitude of parents in this particular case. She claimed that the Centre could not have prevented this tragedy since such an act of desperate insanity is unpredictable at its core. On top of that, she emphasized that the Centre cannot neither provide help to every child, nor to every parent. In the aftermath, she did lose her job because of the omissions that occurred while she was the director, but that led to no further development in the social welfare system. Once again, the system has failed. Croatian public will also never forget 5-year-old Samuel whose throat was slit while he was asleep by his father – recovered heroin addict and alcoholic, monitored by the Centre, nor the 9-year-old Luka who was strangled by his father, also an alcoholic, against whom the mother and (even) the Centre filed a restraining order.

Photo: Vallejo 1980, flickr.

Denis was first alcoholized and drugged, then suffocated by his mother and her underaged helper, a 14-year-old girl who ran away from the Home for Raising Youth and Children, and that was also, ironically, under the surveillance of the Centre. Afterwards, the mother disposed the body in the sea, hoping that nobody would find out about the monstrous crime she has committed. To make things worse, Denis´ mother is mentally ill and has no legal capacity. Denis´ grandma, who has custody of his sister, contacted the Centre many times while posing the question – how can a person with no legal capacity be able to act in the best interest of the child?3 Till today it remains unknown to the public why the grandma had custody over one child, but not the other. The omission in the organization within the Centre was established, as well as the liability of social workers in charge of the case. The social workers were suspended at the time. In the aftermath, one social worker resigned, while the rest of them decided to continue their job as social workers.

All in all, these are just some highlight cases that caused a media frenzy. Of course, there are many more children lives that are damaged or lost. In the name of all of these children, we need to ask ourselves, how can we counterbalance law and politics in a manner that would provide them more efficient protection? What about the law?

In the summer of 2019, a mentally unstable father tossed four of his children aged 3, 5, 7 and 8 out from the 6 meters high balcony. _____________________________ 3

Gotovo je. Vrhovni sud potvrdio je da mama koja je u Puli ubila 3godišnjeg sinčića ide u zatvor na 33 godine. (It´s over. The Supreme Court condemns mother who killed 3-year old son will remain in prison for 33 years). Ana Raić Knežević, Telegram.hr https://www.telegram.hr/politika-kriminal/gotovo-je-vrhovni-sudpotvrdio-je-da-mama-koja-je-u-puli-ubila-3-godisnjeg-sincica-ide-uzatvor-na-33-godine/ (updated: February 26th, 2020, accessed: April 21st, 2021)

The “Nikoll” case is before the Croatian court at this very moment, and the aftermath will hopefully make some changes in combating the inefficiency of the Centre and increase the liability of both the Centre and its proteges, as well as the liability of the State. _____________________________ Centar nije mogao prevenirati ovu tragediju svojim djelovanjem. Ovakav čin očajnog bezumlja nije moguće predvidjeti. (Centre could not prevent this tragedy. Such an act of desperate insanity is unpredictable). Frane Šarić, Vecernji.hr. https://www.vecernji.hr/vijesti/centar-nije-mogao-prevenirati-ovutragediju-svojim-djelovanjem-ovakav-cin-ocajnog-bezumlja-nijemoguce-predvidjeti-1304515 (updated: March 4th, 2019, accessed: April 21st, 2021)

Jus Humanis Journal of International Human Rights Law // June 2021

Nevertheless, it is important to emphasize that the problem may not lay in law as much as it originates in politics and the corrupted government. Namely, Croatia ratified the Convention on the Rights of the Child (hereafter: Convention) a long time ago, in 1991. The Convention remains one of the most important sources when it comes to the protection of the best interest of a child. Pursuant to Article 7, paragraph 2 of the Convention Croatia did ensure the implementation of these rights in accordance with the national law and obligations under the 5 relevant international instruments in this field. Accordingly, every child has the inherent right to life, guaranteed by the Convention, the Croatian Constitution 6 and the Croatian Family Law. 7 The Croatian Family Law complies with Article 9 of the Convention which states that the States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.8 The whole chapter of Family Law is dedicated to that. It is enumerated who has the authority to separate/exempt a child from the family, under which circumstances, as well as the thorough description of the procedural aspect. Moreover, 2019 changes in the Croatian Criminal Code increased the liability of social workers. Strictly speaking, social workers are now 9 defined as public officials, which directly imposes a greater liability towards their proteges. When all this is taken into consideration, I strongly argue that the legislative framework is not an issue.

_____________________________

UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, Art. 7, p. 1 6 Ustav Republike Hrvatske NN 56/90, 135/97, 08/98, 113/00, 124/00, 28/01, 41/01, 55/01, 76/10, 85/10, 05/14, Art. 21 7 Obiteljski zakon, NN 103/15, 98/19, Art. 84, p. 1 8 Convention on the Rights of the Child, Art. 9, p. 1 9 Kazneni zakon, NN 125/11, 144/12, 56/15, 61/15, 101/17, 118/18, 126/19, Art. 87, p. 3

Photo: ‫دﻳﻤﻪ اﻟﺸﺎﻳﻊ‬, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

Of course, there is always place for improvement and greater protection of the children in question throughout legislative changes, but both Family Law and Criminal Code do comply with international and European Union legislation. Thus, where is the problem? The problem is the applicability of legislation. Namely, this does not pose a problem only when it comes to the Family Law in question, applicability represents a core problem in every particular legal and societal setting in Croatia. Corrupted politicians, gigantic, outdated and inefficient bureaucratic apparatus, public officials employed on the basis of nepotism and party membership are the real problem. Scandalous saying by the Croatian Prime Minister that the state cannot protect all children from evil in combination with even more scandalous and outrageous saying by the Centre´s former director that not all children under the Centre´s surveillance can be protected from their parents depicts disrupted and abusive relationship between Croatian government, public officials and the rest of the Croatian plebs. Politically appointed social workers who do not care about the children are no exception. It would be wrong to say that they are the rule as well. There are good social workers, and there are bad social workers, just like in any other state system.

Bearing that in mind, one needs to ask himself for how long will the political structure and politically appointed social workers abuse the application of Croatian legislation? For how long will the politicians neglect their impact on the applicability of law? For how long will they elude responsibility for their actions, as well as for their omissions. Concluding remarks While the Croatian public impatiently awaits the judgment in the “Nikoll” case, I cannot stop but wonder – is this going to be just one more case in the row that´s not going to make an impact or change anything? Is Nikoll just one more victim of an abusive, politically deranged system? It seems like this time finally - not only the parents stand before the court as accused - but the State as well. The “Nikoll” case might be a turning point in establishing State´s responsibility. One thing is clear, no matter the outcome of the case, the application of the aforementioned legislation must be enforced properly and efficiently. In the name of Nikoll, Tatjana, Denis, Samuel, Luka and the rest of the unnamed children, the State and the Centre must be held responsible for their (in)actions.

Romana Crgol graduated from the University of Rijeka (Croatia) and holds a law degree. Her major was International Humanitarian Law. She is currently studying Human Rights Studies at Lund University. Her main academic interest is conflict related sexual violence and European Convention on Human Rights.

Jus Humanis Journal of International Human Rights Law // June 2021

ONLINE SEXUAL EXPLOITATION OF FILIPINO CHILDREN DURING PANDEMIC Article by Lui P. Palmares Introduction To raise an alarm about a hidden, but gruesome form of sexual exploitation that has victimized vulnerable children in the Philippines, Terre des Hommes Netherlands created a virtual 10-year old Filipino girl named Sweetie, controlled by its researchers from a remote building in 1 Amsterdam. The researchers opened an account for the virtual character in public chat rooms, and within a short period, requests for webcam sex performance from 20,000 predators from all 2 over the world came pouring in. This is how technology facilitates an easier and 3 more horrific way of exploiting children. Child sex offenders, whether they are at home, at their office desk, or in public transportation, can access vulnerable children anywhere in the world through online marketplaces and platforms where various forms of sexual exploitation and 4 abuse are exchanged, or bought and sold.

The number of Filipino children subjected to this kind of exploitation and abuse is alarming, that is why the Philippines is dubbed as a global hotspot for online sexual exploitation of children.5 As the country faced lockdown due to the ongoing pandemic, more vulnerable Filipino children have been subjected to this form of abuse and exploitation. This Article will narrate how online sexual exploitation of children (OSEC) in the Philippines is perpetrated, elucidate why this is prevalent in the country, and ultimately, explain how the pandemic aggravated the cases of OSEC in the Philippines. __________________________ 1 Terre des Hommes, Press Release: Tens of Thousands of Child

Victims in International Online Sex Crimes Case Disclosed (2013). Available at Available at: < https://www.terredeshommes.org/wpcontent/uploads/2013/11/PR-Webcam-Child-Sex-Tourism-TDHNL-04.11.2013.pdf> Accessed on: 23 April 2021.

2 Ibid. 3 International

Justice Mission, Online Sexual Exploitation of Children in the Philippines: Analysis and Recommendations for Governments, Industry and Civil Society (2019) Retrieved from <https://www.ijm.org/vawc/blog/osec-study> accessed 05 April 2021, p. 1. 4 Ibid, p. 15. 5 Ibid, p. 60.

1 Photo: Atjanan Charoensiri/Shutterstock.com

Jus Humanis Journal of International Human Rights Law // June 2021 There are two other forms of facilitation existing in the Philippines: self-facilitated materials and cybersex dens. Self-facilitated materials are generated by minors, usually 12 in their teens, and are sent to foreign customers. There are also cases where the children generating these materials are so young that there is usually an adult 13 involved in facilitating the financial transactions. Cybersex dens, on the other hand, are setups ran by organized crime groups, as well as foreign nationals, where minors are abused for years in front of audiences from all over 14 the world. Photo: HTWE/Shutterstock.com

What is OSEC and how is it perpetrated? Online Sexual Exploitation of Children is “the production, for online publication or transmission, of visual depictions such as photos, videos, live streaming materials, of the sexual abuse or exploitation of a minor for a third party who is not in 6 the physical presence of the victim, in exchange for compensation.” There are three parties involved in a typical OSEC scenario: the traffickers, the customers, and the victims. Traffickers are “the people who provide, obtain, and recruit victims for customers, accept payment for the exploitation, and commonly commit or direct the 7 contact abuse of the child for remote viewing.” In the Philippines, traffickers are usually someone who is within the child’s ‘circle of trust’, such as a close family 8 member, friend, or guardian. In the study conducted by International Justice Mission (IJM), biological parents facilitated the abuse of 41% of the victims, 9 while other relatives facilitated 42% of the abuses. They usually justify their behavior by viewing OSEC as 10 less harmful than contact abuse and exploitation. Parents, if they are not the traffickers themselves, are usually silent on the matter because of the perceived 11 financial gains from these activities. _____________________________ 6 Supra Note 3, p. 7. This is the functional definition of the

7 8 9 10

International Justice Mission (IJM) and its partners to guide efforts to address this issue in accordance with Philippine Law. IJM aligned this definition with the Luxembourg Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse. Ibid, p. 52. Ibid. Ibid, p. 51. Ramiro, L. S., Martinez, A. B., Tan, J. R. D., Mariano, K., Miranda, G. M. J., & Bautista, G. (2019). Online child sexual exploitation and abuse: A community diagnosis using the social norms theory. Child Abuse & Neglect, 96 (2019)104080. https://doiorg.proxy.lib.fsu.edu/10.1016/j.chiabu.2019.104080, Ibid.

OSEC customers are the offenders who either ‘instruct or pay in-person traffickers to exploit the children’, or ‘produce the Child Sexual Exploitation Material (CSEM) by directing the sexual abuse remotely’, or ‘entice, solicit, coerce a minor to produce sexually explicit videos and 15 images for their personal consumption and distribution’. 16 All known customers were male. Most of them came from western countries, and many of them have travelled 17 to the Philippines at one point. Of the customers involved in the OSEC cases referred to the Philippines, 34% is from the US, 25% is from Sweden, 18% is from Australia, while the rest are from Canada, Ireland, Israel, the Netherlands, 18 Norway, and the UK, to name a few. The victims are minors whose ages range from infant to 19 pubescent. Over 60% of the victims were prepubescent, 20 including infants and toddlers. The abuse committed against the infants and toddlers was found to be the most gruesome. In 2016, a repulsive video called “Daisy’s Destruction” was found by authorities to be circulating 21 online. The video showed an eighteen-month-old Filipino baby girl stripped naked, and hung upside down by a naked woman. In the video, the woman beat the baby up, “clipped her little breasts with clothespins, urinated on 22 her, and poured melting wax on her private parts”. ________________________ 12 Supra Note 3, p. 24 13 Ibid. 14 Ibid.

15 Ibid. 16 Ibid, p. 52. 17 Ibid. 18 Ibid.

19 Child, O.U.V.I (2018). Towards a Global Indicator: On Unidentified

Victims in Child Sexual Exploitation Material, p. 5. Retrieved from https://www.ecpat.org.uk/towards-a-global-indicator-on-childsexual-exploitation-material, accessed on 22 April 2021. 20 Ibid. 21 Rita Linda Jimeno, Crimes Against Children, Manila Standard, 26 September 2016 <https://manilastandard.net/mobile/article/217171>, accessed on 05 April 2021. 22 Ibid.

Jus Humanis Journal of International Human Rights Law // June 2021

The video was uploaded by the Australian pedophile, Peter Scully, on a pedophile website for torture videos where users paid up to $10,000 to stream videos of children being abused and 23 exploited. The study conducted by Terre Des Hommes shows that children are usually asked to perform in a show from a home computer, internet cafes, or 24 cybersex dens. The contact between the customers and the children are made in public chatrooms, with or without the involvement of a trafficker. The customers direct the child or children what to do through a voice chat, and the show starts when the customers transfer the money. Usually, the show ranges from exposure of private parts, masturbation, insertion of sextoys, sexual abuse involving an adult, or children performing sexual acts on each other. OSEC during Covid-19 As the country grappled with pandemic and the effects of the lockdown, OSEC cases were also on the rise. In May 2020, the Department of Justice ______________________________ 23 Rob Waugh, What is Daisy’s Destruction? ‘Snuff film’ urban legend

actually exists., 26 September 2016, < https://metro.co.uk/2016/09/26/what-is-daisys-destruction-snufffilm-urban-legend-actually-exists-6153626/> accessed on 05 April 2021.

24 Terre

Des Hommes Netherlands, Fullscreen On View: An Exploratory Study on the Background and Psychosocial Consequences of Webcam Child Sex Tourism in the Philippines, November 4, 2013, p. 25.

(DOJ) reported that OSEC cases increased by 264 25 percent since 2019. According to the DOJ’s Office of Cybercrime, the National Center for Missing and Exploited Children recorded a total of 279,166 cases from March 1 to May 24, 2020, from 76,561 cases reported for the same period from the previous 26 year. To understand this increase, one has to look at the very factors which allowed OSEC to proliferate in the 27 country. One of these factors is poverty. In 2018, an estimate of 16.7 percent or about 17.7 million Filipinos have a per capita income that is insufficient 28 to meet their basic food and non-food needs. Children who are involved in OSEC almost always come from families living below the poverty line. For these families, the involvement of their children in OSEC is the primary source of income. Children usually receive between $11.50 and $46 USD per show, or $4.60 USD when recruited by a 29 middleman. IJM’s study shows that in 83% of the ______________________________

25Benjamin Pulta, Online Child Exploitation Reports in PH Surge

amid covid-19: DOJ, Philippine News Agency, May 25, 2020. Available at: < https://www.pna.gov.ph/articles/1103852>. Accessed on: May 5, 2021. 26 Ibid. 27 Andrea Varella, Live Streaming of Sexual Abuse: Background, Legislative Frameworks and the Experience of the Philippines, ECPAT International Journal, Issue 12, April 2017, p. 54. 28 2018 Updated Full Year Official Poverty Statistics, June 4, 2020.

Available at: < https://psa.gov.ph/poverty-press-releases/nid/162559>. Accessed on May 5, 2021.

29 Supra Note 24, p. 25.

Photo: Christa SaysWhat, flickr.

moc.kcotsrettuhS/azalroB yeR :otohP

Jus Humanis Journal of International Human Rights Law // June 2021

OSEC cases referred to the Philippines, financial gains were shown to be the primary motivator for 30 the children’s engagement in OSEC. The second factor which allowed OSEC to thrive in the Philippines is the country’s proficiency in the 31 English language. English is the country’s language of law and commerce, as well as the primary medium of instruction in education, and is considered as one of the two official languages in 32 the Philippines. The Filipinos’ high proficiency in the English language allowed the customers to communicate their instructions to the children and transact with the traffickers. Third, Philippines has easy access to technology 33 and inexpensive internet. As of January 2021, there are 73.91 million internet users in the 34 Philippines, which is equivalent to 67% of the total population. The number of social media users, on the other hand, increased by 16 million between 35 2020 and 2021. As of January 2021, 89 million, or 80.7% of the total population are social media 36 users. While reports show that only 27% of the households have computers at home, internet cafes are widely available, and devices like mobile 37 phones and tablets are affordable. This easy access to technology facilitated the OSEC transactions and made it easier for predators to access their victims from anywhere in the world. Fourth, the country has robust money remittance centers, which made it easier to transfer money 38 within the Philippines, and to and from abroad. _____________________________ 30 Supra Note 3, p. 56. 31 Supra Note 27, p. 55. 32 Cabigon, Mike (n.d.), “State of English in the Philippines: Should we

be concerned?”. Available at: <https://www. britishcouncil.ph/teach/state-english-philippines-should-we-beconcerned-2>. Accessed on May 5, 2021.

33 Supra Note 27, p. 55. 34 Simon Kemp, Digital 2021: The Philippines, February 11, 2021.

Available at:< https://datareportal.com/reports/digital-2021philippines>. Accessed: May 6, 2021.

35 Ibid. 36 Ibid. 37 Measuring the Information Society Report 2016 (Geneva, 2016), p.

242. Available at: < https://www.itu.int/en/ITUD/Statistics/Documents/publications/misr2016/MISR2016-w4.pdf>. Accessed on: May 6, 2021.

38 Supra Note 27, p. 56.

There are remittance centers in almost every city in, and even in the remotest areas of, the Philippines. Payments for access to webcams and CSEMs are made through these facilities. Finally, OSEC is usually viewed by the traffickers, who are in most cases parents, or close family members of the victims, as harmless since no 39 contact with the customers is involved. This may be due to lack of awareness and understanding of the psychological harm that the acts may cause to the children, or lack of knowledge of the 40 unlawfulness of the act. Respect for, and fear of, or the need to protect, these family members often renders the children unable to complain, or to speak against them; thereby, perpetuating the practice. 41 The very same factors which paved the way for OSEC to thrive in the Philippines, also worsened the OSEC cases in the country during the pandemic. In March 2020, Philippines was placed under a state of public emergency due to Covid-19 threats. Resultantly, the country was placed on strict lockdown. Mass transportation was banned, work was temporarily cancelled, shops and establishments stopped their operations in the meantime, schools were closed, and classes were held online, or offline at home through modules which were printed and sent to children’s homes. A lot of businesses closed; hence, more Filipinos became unemployed. This economic strain was most felt by families from poverty-stricken areas. Because of the lockdown, these families were deprived of their access to their livelihood, or members of these families must have also lost their jobs. Due to lack of source of income during the pandemic, some households resorted to OSEC transactions to sustain the family’s needs. The situation was exacerbated by the fact that schools are closed and children are trapped in their homes with their traffickers. During lockdown, children were doing their classes online or through a module which are printed and sent to their homes. And since classes are done online, more ______________________________

39 Supra Note 24, p. 29. 40 Supra Note 27, p. 56. 41 Ibid, p. 56-57.

Jus Humanis Journal of International Human Rights Law // June 2021

children, from across all social strata, have access to the internet. This combination of factors exposed the children, especially those from lowincome families, to the crime of OSEC. Moreover, with schools closed and children trapped at home with their traffickers, OSEC usually went undetected since children have no access to teachers or persons who might notice the signs of abuse, or to whom the children might disclose the abuse or exploitation. Conclusion For Filipino children who are victims of OSEC, the lockdown which was imposed to supposedly keep them safe from the threats of the virus, exposed them to harm. The place which should offer them security and safety during these perilous times

became a place where they are exploited and abused. The lockdown trapped the children inside their homes with their traffickers and abusers; thus, providing more time and opportunity for the latter to subject the children to exploitation. While poverty has been shown to be the motivation why children were subjected to OSEC, it is primarily the fact that these traffickers view this kind of exploitation as harmless which allowed OSEC to thrive. There are a lot of families below the poverty line in the Philippines, but not all of them subjected their children to exploitation. Efforts must, thus, be made not just to address poverty which drove the families to this kind of transaction, but also to educate the parents and other family members of the psychological harm that OSEC does to the children and of the unlawfulness of the act.

Lui P. Palmares is a Filipino lawyer, currently taking up International Human Rights Law at Lund University. She worked in a law firm and the Judiciary, and co-founded an NGO which promotes children’s welfare in the Philippines. This publication has been produced during her scholarship period, funded by the Swedish Institute.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Elena Arvasi, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

CHILDREN’S RIGHTS AND CLIMATE CHANGE: THE YOUTH FOR CLIMATE JUSTICE CASE Article by Margarida Ravara A. Introduction Climate change is one of the most important challenges nowadays, being responsible for terrible environmental alterations leading to human rights violations such as violations on the right to life, health, water and sanitation, food, property and self-determination, among others. Besides, it contributes to the increase of already existing inequalities. In recent years, international cases raised by children concerning the relationship between violations of human rights, more specifically children’s rights, and state’s contribution to climate change have been brought before national and international bodies. The Future Generations v Ministry of Environment and Others, the Sashi petition, and the Youth for Climate Justice Case are examples of it.

Climate change litigation is a way to pressure states into taking action to combat climate change and consequently, protecting violations of human rights 3 since states want to avoid being brought before the Court. If states know they might be breaching the European Convention of Human Rights (ECHR) - but there is a Court’s position regarding a specific subject available -, they will be more likely to change their course of action to conform with the Court's standards and thus avoid being brought before the Court on the same issue. This article will first address the relationship between climate change and children’s rights, with a specific highlight on the best interest of the child and intergenerational equity principles and will then focus specifically on the Youth for Climate Justice Case.

.rkcilf ,yriaF ennaeJ :otohP 28

Jus Humanis Journal of International Human Rights Law // June 2021

This case is of the utmost importance since it is the first time the Court is called to address the application of the ECHR to climate change. Therefore, the ECtHR is presented with the opportunity to create grounding jurisprudence on the matter and take a clear stand on climate change by creating binding, clear and concrete obligations regarding states’ action towards its combat. B. Children’s rights and climate change As highlighted by the United Nations Human Rights 1 Council, the relationship between children’s rights and climate change is clear as children are among the most vulnerable to the consequences of climate change. Younger generations are disproportionately impacted because of their unique metabolism, physiology, and mental 2 developmental needs. Also, current children will have to endure climate change consequences for longer than older generations, as it is foreseeable that they will continue to increase in frequency and intensity throughout their lifetime. In addition, climate change heightens existing social and economic inequalities, intensifies poverty and, reverses progress towards improvement in 3 children’s well-being. Furthermore, climate change affects the effective and full enjoyment of human rights, particularly regarding rights specifically pertaining to children, such as the rights to education, to be protected, to be heard, and to participate in decisions that affect them. B1. The principle of the best interest of the child in the context of climate change A child rights-based approach to climate change should focus on the application of the principle of best interests of the child established in Article 3 CRC in the combat of climate change. The application of Article 3(1) CRC to the climate change crisis determines that, when fighting against it, states are obliged to take into primary consideration the best interest of the child. _____________________________

1 A/HRC/32/L.34

2 A/HRC/35/13, §4 3 Ibid.

This way, the application of this principle obliges states to take into consideration children’s specific risks that arise as a result of climate change, as well as their particular development needs. It also demands an evaluation of its outcomes in children, where states must explain how children’s rights were taken into account and weighed against other considerations in those decisions. Therefore, the principle of the best interest of the child requires that children’s rights are taken into consideration in a way that enables their respect, protection, and fulfilment when climate change policies and measures are considered. Besides, the application of Article 3(2) CRC to the climate change context creates positive obligations for states to develop effective legislative and administrative measures to combat it and to guarantee the overall well-being of the child. This includes access to a safe and clean environment which implies taking action to protect the rights and best interests of the child from the actual and 4 foreseeable adverse effects of climate change. B.2. The principle of intergenerational equity in the context of climate change Climate change has a dimension beyond geographic space, it has a dimension of time, 5 across generations. The principle of intergenerational equity implies that a relationship (‘inter’) exists between generations (‘generational’) as regards the right, correct, or just handling 6 (‘equity’) of planetary resources. Therefore, it concerns the interaction between rights, responsibilities, and equality between generations. The intergenerational equity principle is established in Principle 3 of the Rio Declaration on Environment and Development, Article 3 United Nations Framework Convention on Climate Change (UNFCCC) and the Preamble to the Paris Agreement. ______________________________

4 A/HRC/35/13, §52 5 Gibbons, Climate Change, Children’s Rights and the Pursuit of

intergenerational Climate Justice, Health & Human Rights Journal, Vol16, June 2014, p.20 6 Hadjiargyroy, A Conceptual and Practical Evaluation of Intergenerational Equity in International Environmental Law, International Community Law Review 18(2016),248–277, p.249

Jus Humanis Journal of International Human Rights Law // June 2021

influence the rest of the European Council members to act according to the Court’s decision when combating climate change. C.2. The applications

Photo: Vallejo Donfrancesco, flickr.

It recognises that future and current young generations will suffer disproportional burdens when compared to older generations since they are the ones that will inherit a damaged environment and consequently have access to more limited resources than previous generations. To avoid that, this principle places a duty on current generations to act as responsible stewards of the planet and ensure the rights of future generations to meet their development and environmental needs, as well as to place their needs at the core of climate change policies and action,7 for example when developing policies and measures aiming to reduce greenhouse gas emissions. C. The Youth for Climate Change Case: C.1. Children as advocates and promoters of climate change action In recent years, there has been a rise in the movements of children and young adults towards the promotion of climate change awareness and combat. Consequently, they are now partaking in climate change conversation, demanding to be listened to by those in power and holding them accountable for violations of their human rights. Inspired by recent climate change movements, six Portuguese children and young adults filed an application before the ECtHR which has the potential to bind 33 states parties to the ECHR and _____________________________ 7 A/HR/35/13, §35

The construction of climate change within the human rights framework is recent so, it does not come as a surprise that there is not a specific right to a healthy environment enshrined in the European Convention of Human Rights (ECHR) nor in its additional protocols. The applicants invoke the violation of several provisions of the ECHR, namely the right to life - Article 2 ECHR, the right to respect for private and family life – Article 8 ECHR, and prohibition of discrimination – Article 14 ECHR when interpreted in light of the Paris Agreement 2015, which is the first environment treaty to explicitly incorporate a provision on human rights. i. Potential admissibility problems: Climate change litigations are often connected with procedural challenges namely: extraterritorial jurisdiction, the concept of "victim", and exhaustion of local remedies. a) Jurisdiction - Article 1 ECHR The applicants reside in Portugal and are within its jurisdiction. However, they not only lodge a complaint only against Portugal but also against other 32 states from which they are within the extra-territorial jurisdiction off. They argue that, since the respondents’ contributions to climate change materialise outside their territory and the mitigation measures of climate change are on course to vastly exceed the 1,5ºC target set by the Paris agreement, they should be presumed to be inadequate therefore all those states should be held accountable for their fair share of greenhouse gas emissions. The uncertainty of the determination of what should constitute fair share for each of the applicants should be resolved in favour of the applicants, which would ultimately determine the jurisdiction of the Court to judge this case. They conclude by arguing that, in cases as such, indivisible injuries entail shared responsibility for their wrongful international acts of failing to reduce their emissions in line with its international obligations under Articles 2, 8, and 14 ECHR.

Jus Humanis Journal of International Human Rights Law // June 2021

Why the Court should not dismiss the application based on this procedural ground: The application provides a compelling detailed analysis of the causation between all the 33 states’ insufficient actions for green-house gas emission reduction. A dismissal of the case based on this ground would send the wrong message that states can continue to disregard their emissions which have an extraterritorial impact as there are territorial limitations to what they can be held accountable for. b) Victim status – Article 34 ECHR The applicants invoke their position as victims under Article 34 ECHR stating that they suffered and continue to suffer direct effects of climate change that constitute violations on their right to life - Article 2 and/or private and family life - Article 8. They also invoke that, current emissions level and trajectory show that they are at risk of continuing to be exposed to these harms, which are likely to increase in frequency and intensity. The application also mentions that the assessment of those risks should be interpreted alongside the precautionary principle, the principle of intergenerational equity and the best interests of the child. Why the Court should not dismiss the application based on this procedural ground: As for the concept of the victim status, one can argue that this is a disguised actio popularis, not allowed by Article 34 of the Convention, defending that the applicants themselves were not directly affected. However, I believe the Court should not follow this line of reasoning. Instead, it should pursue the applicants’ view that they are in fact direct victims of violations of Articles 2, 8, and 14 ECHR as well as victims for being at risk of continue to suffer these violations throughout their lives. c) Exhaustion of local remedies

Local remedies have not been exhausted, not in Portugal nor in any other respondent state. However, the applicants argue that there is no adequate domestic remedy available to them mainly for four reasons. Photo: Valerio Donfrancesco, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

The applicants state that lodging an application in the Portuguese courts would not be adequate since its jurisdiction is constrained to its territory, and therefore the decision would only be binding to Portugal, while the alternative of installing actions in 33 different states could not be considered practical. Additionally, as the applicants refer, climate change is “an urgent and pressing matter” and measures for its prevention need to be taken rapidly, which would not be compatible with waiting for the exhaustion of domestic remedies provided by national courts that although important and ground-breaking decisions have proven to be insufficient to achieve the previously mentioned 1,5ºC target. 8 Furthermore, the applicants argue that their condition as children and young adults should be taken into consideration so that they are not expected to pursue local remedies in all of those states. Lastly, they invoke the economic constraints that they face and are incompatible with exhausting domestic remedies and pursue proceedings to their final conclusion in each of the 33 respondent states. In their opinion, this would impose an unreasonable and disproportional burden. Why the Court should not dismiss the application based on this procedural ground: Although local remedies have not been exhausted in any of the 33 respondent states, the local remedy available must be real, practical, and effective. As defended by the applicants, this was not the case. i. Merits: a) Violations on the right to life - Article 2 ECHR and Violation on the right private and family life – Art 8 ECHR: The right to life compels states to take appropriate legislative and administrative provisions against threats to the right to life.9 _____________________________

Their inaction or insufficient action in combating climate change and their contribution to emissions is an ongoing threat to the applicants’ right to life since climate change is responsible for general negative effects on human health for which there is limited possibility of human adaptation. Specifically, the applicants refer to the particularly intense heatwave and wildfires that they suffered in their country in 2017 and which they deem to be consequences of climate change. The applicants also invoke a violation of the right to private and family life. The Court has applied this right to serious and substantial threats to the health and well-being of persons.10 It has also recognised that this right comprises a right to a 11 healthy and protected environment and imposes that states take reasonable and sufficient measures to protect it. All in all, the applicants invoke that climate change consequences entail violations on their rights to life and/or private and family life; interferences which are likely to only become more frequent and intense throughout their lifetime based on the 12 projected trajectory of climate change. Particularly, the applicants invoke that the heatwaves and wildfires they experienced interfered with their overall health, ability to sleep, exercise and spend time outdoors and caused them anxiety about climate change potential impacts. Moreover, the applicants argue that the respondents’ lack of action to keep the target set by Article 2 of the Paris Agreement to limit the increase in global temperatures to 1,5ºC, which is the limit scientist determined to prevent deleterious effects on human health and welfare, violates the obligations that emerge from the rights to life and/or right to private and family life. Lastly, the applicants invoke that states’ duties related to climate change combat and mitigation must be interpreted alongside the CRC. ______________________________

10 Tatar v Romania, App no 67021/01, 2009

11 López Ostra v Spain, App No. 16798/90, 1994 12 World Metereological Organisation Reporto n the State of Global

Climate 2020

8 Urgenda case 9 Oneryilldiz v Turkey, App no 48939/99, 2004

Jus Humanis Journal of International Human Rights Law // June 2021

A child rights-based approach to climate change should focus on the application of the principle of best interests of the child in the combat of climate change - Article 3 (CRC), as stated by the applicants. b) Violation of the prohibition of discrimination – Article 14: The applicants allege that the respondents’ conducts constitute a violation of the prohibition of discrimination on the grounds of their age - article 14 ECHR, taken together with Articles 2 and 8. Although age is not explicitly determined in Article 14 as a suspected ground of discrimination, this article does not establish an exhaustive list on grounds of discrimination, so the Court has 13 recognised that age constituted “other status”. The applicants argue that they are discriminated against on the grounds of their age as they are treated differently than older generations, the comparator group in relatively similar situations, and such difference in treatment does not pursue a legitimate aim. They defend that younger generations experience more material interferences with their rights under Articles 2 and 8 than older generations since they are expected to live longer in a world damaged by climate change consequences, which are only expected to _____________________________

increase in frequency and severeness if proper measures to mitigate them are not taken immediately. The applicants conclude that this inability to adopt adequate mitigation measures, which ultimately shifts the burden of climate change to younger generations, can never be objective and reasonably justified. D. Conclusions Climate change is a human rights issue since its negative consequences interfere with the enjoyment of human rights. Even though the ECHR does not provide for an explicit right to a safe, healthy, and clean environment, the ECtHR has extracted this right from other rights established in the Convention, particularly the right to life and private and family, as invoked by the applicants. When it comes to children, their special position of vulnerability places them in a particularly exposed position to climate change consequences, mainly for two reasons: their physical anatomy and the fact that they will typically live more time than other generations so they will be exposed to it for more time and its consequences are only likely to increase and become more intense. For years now we have been warned about climate change and its potential consequences.

13 Schwizegebel v Switzerland, App no 25762/07, 2010

Photo: UN Women, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

The problem is, those consequences are no longer a mere possibility, but reality and if concrete and impactful measures are not taken urgently, they will only get worse and more frequent. Action is needed now while there is still time to reverse the situation, if not the result will be catastrophic with unprecedented human rights violations, with particularly serious implications for more vulnerable groups such as children. The urgency of the situation calls for immediate and concerted measures to be taken, with a real commitment of various states. The potential impacts of the decision of the Youth for Climate Justice Case cannot be underrated.

When addressing climate change for the first time, the ECtHR is presented with an opportunity to make history and bind the respondents to comply with more demanding commitments that can mitigate climate change consequences and its inherent human rights violations, including children’s rights violations. A rule that sets precise norms regarding the international climate change regime can have a great impact on climate change combat, not only regionally within Europe but worldwide. This is why this application is of the utmost importance with the potential to be a landmark case. What is at stake is too important for the court to dismiss this application, it is time for the ECtHR to take a stand regarding climate change and protecting human rights while doing that.

Margarida Ravara is a law graduate from Lisbon University, Portugal. She is currently studying a master’s degree in International Human Rights Law in the Faculty of Law at Lund University. Her main academic interests are environment and climate change and its relationship with human rights, as well as migration.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Dominique Fortuna, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

HOW RULES OF INTERNATIONAL HUMANITARIAN LAW AND ISLAMIC LAW PROTECT CHILDREN’S RIGHTS IN ARMED CONFLICTS Article by Nicole Fraccaroli INTRODUCTION The following research has been carried out with the purpose to study the legal protection afforded to children in contexts of hostilities by International Humanitarian Law (IHL) and Islamic Law, in order to derive points of convergence and divergence between the two legal systems. IHL is the law applicable to situations of armed conflicts, with the four Geneva Conventions (GCs) and Additional Protocol I (API) applicable to international armed conflicts, whereas Additional Protocol II (APII) was designed for conflicts of a non-international character. With the view to conducting an analytical and precise study, the focus is specifically on children’s right not to be recruited to armed forces and their right to have access to education. Each right is examined in light of both legal traditions, and such investigation enables the attainment of conclusions and observations relevant to improve the communication between IHL and Islamic legal scholars.

Photo: www.unicef.org.

CHILDREN’S RIGHT NOT TO BE RECRUITED TO ARMED FORCES Article 32 of the UN Convention on the Rights of 1 the Child (CRC) works as a milestone for the protection of children from economic exploitation 2 and harmful work. The International Labour Organization (ILO) acknowledged that almost three-quarters of working children are engaged in the worst forms of child labour, including for instance domestic work, slavery, trafficking, sexual exploitation, forced recruitment into armed forces, mining and other forms of hazardous work. The ILO Convention on the Worst Forms of Child Labour declares forced or compulsory recruitment of children for use in armed conflict the most 3 severe form of child labour. _____________________________

1 International Convention on the Rights of the Child. New York, e.i.f.

02.09.1990.

2 International Bureau for Children’s Rights. A Guide to International

Humanitarian and Human Rights Law (2010), 216.

3 International Labour Organization, “Child labour and armed conflict”

no date available, accessible at: https://www.ilo.org/ipec/areas/Armedconflict/lang--en/index.htm .

Jus Humanis Journal of International Human Rights Law // June 2021

International Humanitarian Law IHL treaties do not really define the term “child”; nevertheless, in line with article 1 CRC, international practice accepts that persons under 4 18 years old are to be considered children. The 5 6 four 1949 GCs are silent on those two main issues; 7 8 whereas API under article 77(2), APII under article 4(3)(c), and article 38(3) CRC do prohibit the recruitment of children below the age of 15. It is of underlying importance to consider the meaning of “recruitment” as to whether it may include a duty to refrain from enrolling children, under 15 years old, in both scenarios based on forced and voluntary 9 engagement. Such reading was the one supported and advanced by the International Committee of the Red Cross (ICRC) at the drafting process of article 77 API but met the resistance of Algeria.10 The version of the latter seems to be the one that eventually prevailed, from the moment article 51 GCIV employs the term “voluntary enlistment” making clear the presence of a difference with the term “recruitment”. Another significant distinction marks the two Additional Protocols: the first claims that children under 15 should not take “a direct part in hostilities”, therefore excluding indirect acts of engagement equally capable of provoking hazardous and lethal consequences. Whereas under the relevant provision of APII, it is outlawed to allow children under 15 to take part in the hostilities, prohibiting hence any kind of participation. As highlighted by Van Bueren, it seems that “indirect participation in international _____________________________ 4 Ahmed Al-Dawoodi, Vanessa Murphy, “International humanitarian

law, Islamic law and the protection of children in armed conflict” (2019) 911 International Review of the Red Cross 551, 560. 5 Geneva Convention for the Amelioration of the Conditions of Wounded and Sick in Armed Forces in the Field. Geneva, e.i.f. 21.10.1950; Geneva Convention for the Amelioration of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, e.i.f. 21.10.1950; Geneva Convention Relative to the Treatment of Prisoners of War. Geneva, e.i.f. 21.10.1950; Geneva Convention Relative to the Protection of Civilian Persons in Time of War. Geneva, e.i.f. 21.10.1950. 6 An Occupying Power must not enlist children on the occupied territory (GCIV, Art50). 7 Additional Protocol I Relating to the Protection of Victims of International Armed Conflict. Geneva, e.i.f. 07.12.1978. 8 Additional Protocol II Relating to the Protection of Victims of NonInternational Armed Conflict. Geneva, e.i.f. 07.12.1978. 9 Geraldine Van Bueren, “The international Legal Protection of Children in Armed Conflicts” (1994) 4 The International and Comparative Law Quarterly 809, 814. 10 Ibid.

Tconflicts is safer than indirect participation in civil 11 wars”. Additionally, in the eventuality of recruitment between 15 and 18 years old, article 77(2) API recommends the Parties to enlist the oldest first; and interestingly, in the scenario where, against the provisions of the Protocols, children who are not 15 years old yet take direct part in hostilities and are captured, they shall remain under the special protection granted by the 12 Protocols. Furthermore, the Additional Protocol to the CRC on the Involvement of Children in Armed Conflict raises the bar of children’s protection, in the context which is the object of the concerned section, by way of preventing States Parties from the compulsory recruitment of children under 18 into their armed forces; 13 through the requirement to increase the minimum age from 15 for voluntary 14 recruitment into armed forces; and by impeding non-State armed groups’ recruitment of children 15 under the age of 18. Islamic Law Based on the Hadith attributed to ʻAbd Allh ibn ʻUmar, the Hadith representing one of the major guidance sources for Muslims in reason of its collection of Prophet Muhammad’s sayings; the jurists concluded that the age of puberty is that of 15 years old for male and female persons. Consequently, this is the age required for lawful recruitment into military forces and at which an 16 enemy belligerent can be targeted. A careful reading of the Hadith enables to observe that, most likely, the required age concerns the direct participation in the hostilities, considering that the Islamic source declares: “while I was fourteen years of age at that time, ______________________________ 11 Ibid., 815. However, it is now accepted that the concept of children’s

participation is broad, and it includes indirect participation (Marco Sassoli, International Humanitarian Law. Rules, Controversies, and Solutions to Problems Arising in Warfare (Cheltenham: Elgar 2019) 284). 12 Denise Plattner, “Protection of Children in International Humanitarian Law” (1984) 240 International Review of the Red Cross, Section C. 13 Additional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. New York, e.i.f. 12.02.2002, Art2. 14 Ibid., Art3(1). 15 Ibid., Art4(1). 16 Ahmed Al-Dawoodi, Vanessa Murphy, op. cit., 561.

Jus Humanis Journal of International Human Rights Law // June 2021

and he did not allow me to take part in that battle, […] when I was fifteen years old, and he allowed me 17 (to join the battle).” To be accurate, the Hadith deals with an instance of voluntary child recruitment and, for a greater reason, forced recruitment that does not comply 18 with that minimum age is also prohibited. At the same time, from an attentive reading of the Hadith it can be inferred that child enlistment’s legitimate age is rather 16, which would make it higher than the age of 15 enshrined in the APs to the Geneva Conventions. It is also said that the same minimum age limit applies to fighting between a Muslim State and a non-Muslim State as well as to intra-Muslim 19 fighting. The age standard set up in Islamic law appears to be consistent with that analysed and demonstrated under IHL. It is of substantial importance to note that Islamic law defines the presence of a distinction between combat as a collective obligation in case the jihad (“struggle”) is offensive, or as an individual obligation in the event of a defensive jihad. Under the first hypothesis, jurists recognize that in order to take part in the hostilities “you need to have 20 reached maturity”. Whereas as to the second scenario, they hold diverging opinions: on one hand, in line with Hanafi, Shâfi‘î, and Maliki schools of law, children who are able to fight are expected to do so even without parental consent due to the danger that an external invasion does represent for everyone, and therefore all are called to join the battle “whether [you are] equipped lightly or 21 22 heavily” . On the other hand, on the basis of the Hanbali school of law’s reasoning, children cannot be forced to fight. Despite the preambular reference to the risks of armed conflicts that children may face in Islamic countries, the Covenant on the Rights of the Child in Islam presents only one provision that may cover the 23 issue in a way comparable to IHL and the CRC. _____________________________

17 Sahih Bukhari, “Sahih Bukhari” no date available, accessible at:

http://www.sahih-bukhari.com/Pages/Bukhari_3_48.php .

18 Ahmed Al-Dawoodi, Vanessa Murphy, op. cit., 561. 19 Ibid., 561 – 562.

20 Chiara Pellegrino, “Sharia law does not call for child soldiers”

11.05.2015, accessible at: https://www.oasiscenter.eu/en/sharia-lawdoes-not-call-child-soldiers . 21 Qur’an 9.41. 22 Chiara Pellegrino, op. cit. 23 Nasrin Mosaffa, “Does the Covenant on the Rights of the Child in Islam Provide Adequate Protection for Children Affected by Armed Conflicts?” (2011) 8 Muslim World Journal of Human Rights 1, 8.

Photo: jaber alkaabi, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

It is article 17(5), which requires States “to protect children by not involving them in armed conflicts or 24 wars.” It addresses neither the term “child victims of armed conflict”, nor the aspect of direct participation, or a minimum age standard for taking part in the conflict. CHILDREN’S RIGHT TO ACCESS TO EDUCATION A global study, entitled “Education under Attack”, reported that in contexts of armed conflict a systematic pattern of targeting of students, teachers, academics and educational institutions was found in an alarmingly high number of 25 countries. A worldwide survey, by the Global Coalition to Protect Education from Attack, detected at least one incident of universities’schools’ military use in each 29 considered 26 countries between 2013 and 2017. Such a grave pattern has been confirmed by the latest report released by the mentioned Coalition. Children’s right to education is set forth under provisions 28 and 29 of CRC, with the Committee on the Rights of the Child underlying, under General Comment N1, that the values enshrined in article 29(1) of CRC are of fundamental relevance in 27 time of peace as well as of armed conflicts. International Humanitarian Law IHL appears quite precise when it comes to the provisions aimed at ensuring the continuation of education and granting protection to students, educational personnel and facilities. In situations of international armed conflict, specific provisions recall the need to guarantee the right to education: under article 24 GCIV, States have to facilitate access to education for all children under 15 orphaned or separated as a result of the war; under article 94 GCIV, children who have been interned “shall be allowed to attend schools either within the place of internment or outside”; under article 108 GCIV, internees are allowed to receive _____________________________

24 Covenant on the Rights of the Child in Islam. Yemen, no info on its

e.i.f. 25 UNESCO. Education under Attack (2010), 20. 26 Bede Sheppard, “Keeping schools safe from the battlefield: Why global legal and policy efforts to deter the military use of schools matter” (2020) 101 International Review of the Red Cross 665, 668. 27 Committee on the Rights of the Child, General Comment No.1 (2001), CRC/GC/2001/1, 17.04.2001, §16.

parcels containing books and articles of educational character; article 142 GCIV declares that societies or organizations assisting protected persons should receive from the detaining power facilities to distribute material (including the educational one). In situation of occupation, article 50 GCIV alleges that the occupying power should “facilitate the proper working of all institutions devoted to the care and education of children.” The verb “facilitate” entails both the non-interference with the working of the educational institutions, and the occupying power’s duty to undertake positive action ensuring that such institutions are well provided with the necessary materials to 28 deliver education. In the wake of article 78 API, continuity in child’s education has to be secured also in cases of his-her evacuation. In noninternational armed conflicts to which APII is applicable, article 4(3)(a) defines a legal duty to ensure education continuity and with this aim to take steps. At the same time, students, education providers and facilities benefit from the general protection that IHL extends to civilians and civilian objects. In the event they become military targets, all feasible precautions must be considered with a view to minimizing the incidental harm and protecting the civilian population and the civilian objects. From the moment that to be a military objective the educational facility in question must, “by [their] nature, location, purpose or use make an effective 29 contribution to military action” ; if the facility simply boosts the support for one of the parties to the conflict, this will not comply with the definition 30 of a military objective. It follows that the military use of schools is not explicitly outlawed under the law of war; but nevertheless, such use must be planned pursuant to the duties on the parties to undertake the already mentioned precautions, to avoid damages to educational buildings and comply with the discussed rules affording special general ______________________________ 28 ICRC. Report. International humanitarian law and the challenges of

contemporary armed conflicts (2019), 38.

29 Additional Protocol I Relating to the Protection of Victims of

International Armed Conflict, op. cit., Art.52(2). International humanitarian law and the challenges of contemporary armed conflicts, op. cit., 37.

30 ICRC.

Jus Humanis Journal of International Human Rights Law // June 2021

protection to children and their education during armed conflicts. 31 Islamic Law Education in Islam is regarded as a fundamental right of every human being and it was honoured by the first verse that descended upon the Messenger 32 of Allah. It is noteworthy that Prophet Muhammed recognized that “seeking knowledge is an obligation 33 on every Muslim, male and female.” Cairo Declaration on Human Rights in Islam sets forth every human being’s right to receive education from diverse institutions such as the family, the 34 school and the university; and accordingly, “the State shall ensure the availability of ways and 35 means to acquire education” . Article 12 of the Covenant on the Rights of the Child in Islam confirms States Parties’ engagement with a “compulsory, free primary education for all children 36 on equal footing.” Importantly, the Rabat 37 Declaration pronounces itself in relation to the context of armed conflicts. Its article 13 requires States Parties “to provide particular care for the needs of children and women, who are the main victims of such conflicts, ensuring that they receive timely and effective humanitarian assistance including education”. A joint study between AlAzhar University and UNICEF claimed that during armed conflicts children have to be provided with 38 food, clothing, health and education. Moreover, one of the earliest examples in Islamic history that clearly demonstrates the prominent role played by education in situations of armed conflict relates to when, during the Battle of Badr fought in 624, Prophet Muhammed released around seventy prisoners of war in return to teaching Muslim _____________________________ 31 Bede Sheppard, op. cit., 666; the intentional directing of attacks

32 33 34 35 36 37

against educational buildings amounts to a war crime under Rome Statute of the International Criminal Court. Rome, e.i.f. 01.07.2002, Art8(2)(b)(ix), Art8(2)(e)(iv). Hogr Khdhir Ahmed. Master’s Thesis. Children Rights: A Comparative Study Between International Law and Islamic Law (2016), 42. Ahmed Al-Dawoodi, Vanessa Murphy, op. cit., 568. Organization of Islamic Cooperation, Cairo Declaration on Human Rights in Islam. Cairo, 31.07 – 05.08.1990, Art9(b). Ibid., Art9(a). Covenant on the Rights of the Child in Islam, op. cit., Art12(1). Organization of the Islamic Conference, Rabat Declaration on Child's Issues in the Member States of the Organization of the Islamic Conference. Rabat, 08.11.2005. Al-Azhar University in cooperation with UNICEF. Children in Islam. Their Care, Upbringing and Protection (2005), 84. Ahmed Al-Dawoodi, Vanessa Murphy, op. cit., 569.

Photo: UNICEF Afghanistan, flickr. 39

children to read and write. Similarly to IHL, pursuant to Islamic law of armed conflicts, during conflicts of international or noninternational nature civilians and civilian objects cannot be intentionally targeted. 40 Furthermore, Islamic law prohibits the deliberate destruction of enemy animate and inanimate property. Hence, jurist al-Awzāʻı̄ not only forbade wilful attacks on non-Muslim enemy’s civilian objects, but he also added that such action would possess one underlying element of the crime of terrorism under 41 Islamic law. Conversely, al-Shāfi‛ī broadens the permissibility to resort to property’s destruction if this will result in undermining the strength of the 42 enemy. It should be noticed that according to Shāfi‛ī jurists and Ibn Qudāmah, if a Muslim army finds books containing assertions of unbelief in God they should be 43 destroyed. Such act, that can interfere with children’s right to education, may be in conflict with the Convention for the Protection of Cultural 44 Property in the Event of Armed Conflict , which demands States to protect cultural property (such as books) and to refrain from exposing it to 45 destruction through acts of hostility. _____________________________ 39 Ahmed Al-Dawoodi, Vanessa Murphy, op. cit., 569. 40 Ibid., 570.

41 Ibid. 42 Nesrine Badawi, Islamic Jurisprudence on the Regulation of Armed

Conflict (Leiden-New York: Brill 2019) 65.

43 Ahmed Al-Dawoodi, The Islamic Law of War. Justifications and

Regulations (New York: Palgrave Macmillan 2011) 129.

44 Convention for the Protection of Cultural Property in the Event of

Armed Conflict. The Hague, e.i.f. 07.08.1956.

45 Ibid., Art4.

Jus Humanis Journal of International Human Rights Law // June 2021

Additionally, it is critical the acceptance of use of certain methods and means of warfare that may increase the risk to consistently damage education facilities. CONCLUSION The research conducted proved to be salient. It demonstrated that, on one hand, both legal systems share the crucial need to guarantee children’s rights during armed conflicts, as exhibited by the very minimum age of 15 to be recruited to armed forces and the notion of the importance of their access to education.

On the other hand, this work aspires to be a starting point for further concrete discussions to address and fill some of the gaps identified, such as the obligations as to the right to education in hostilities which are not specifically dealt with by the Islamic legal sources considered. Nonetheless, IHL and Islamic law meet again in respect to the protection afforded to civilians and civilian objects and even though the military use of schools is not prohibited, such use must be assessed on the basis of core principles. It would be a mistake to regard IHL and Islamic law as two parallel lines that never intersect; but when they meet, they conserve their specificities.

Nicole Fraccaroli, graduated in International Relations and in International Law and Human Rights, is currently an LLM Student in International Humanitarian Law and Human Rights. She is the Monitoring-Evaluation Coordinator of UNICEF Youth Group in Verona (Italy), and recently joined Organization for World Peace’s Advocacy Team.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Doc by Day, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

CHILDREN’S RIGHTS STATUS CHECK: THE EFFECT OF COVID-19 RESPONSES IN SWEDISH PRIMARY SCHOOLS Article by Sara Helgesson In decisions regarding Covid-19 and the schools, Sweden has taken a different stance than the rest of Europe. Since the pandemic started, only a few primary schools and most of Sweden’s high schools have closed their doors and moved online. How has this affected the realisation of children’s rights in Sweden? Since November 2020, I have been a substitute teacher in a Swedish primary school. I teach children and young people between ten and fifteen. It was not my original plan but applying for jobs and scoring interviews during a pandemic proved to be a seemingly impossible task as a recent graduate. Aiming to make the best of the situation I found myself in, I quickly realised just how relevant my degree in human rights was to my new teaching position. School is a natural space where the rights of children are at the centre of attention, albeit indirectly. It is also a great place for observing children’s everyday life outside of their private family home. Ultimately, the main task of a substitute teacher is to support the realisation of children’s right to education and the best interest of the child. This is especially important if the majority of the other teachers are on sick leave.

In the school where I work, the solution up until Easter was to lower the number of upper classes students attending lectures on campuses. To do this, class 7-8 took turns having online classes every other week. The 9th graders stayed in school as they will be graduating in the summer and their grades will be final. The school wanted to ensure that the 9th graders got the support needed to fulfil the criteria for each subject. You might wonder why Sweden has taken a different stance during the pandemic by abstaining from closing primary schools, viewing it as an absolute last resort. Well, the reasons for not closing the school are many. Here are some that the Swedish state in correlation with what the Public Health Agency has used throughout the pandemic:

Moving the schools online would cost more 1 than if it were to remain open; Children are at a lower risk of transmitting the virus, and teachers are already used to the common diseases spread by children; _____________________________ Emma Olsson, ’Ödesfrågorna under corona – därför håller skolan öppet’ [Key issues during corona – why the schools are open] (Läraren, 13 Jan 2021) https://www.lararen.se/nyheter/coronaviruset/odesfragorna-undercorona-darfor-haller-skolan-oppet

Photo: Julie Martin, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

The transmission has only occurred between the teachers and not between the pupil and the teachers nor between each pupil; 2 If the schools would close then the children would need new places to gather and socialise, keeping the schools open would prevent illegal 3 and harmful gatherings. Early into 2021, the pandemic caught up with us and the situation truly escalated at the school. Just before Easter, the virus started spreading between both the students and teachers. Suddenly 50 % of the teaching staff and students were infected, amongst them my father. Our school tried to cope with the outbreak for a week until eventually, the infection control physicians together with the municipality’s school board made the decision to close down the school facilities and move the classes online for everyone. Two weeks later, after the Easter break, everyone was welcomed back to the school facilities and everything went on like before the pandemic. The only exception was the ever-changing rules and restrictions that the education board sent out in their weekly letter that confused both the teachers and students. There are currently rules for how to sit in the lunch area, which stairs to take, and a decision that every student must spend their breaks outside. Almost every student and most of the teachers are apprehensive towards these restrictions as they do not make any sense. How come they have to sit in a certain way in the lunch area when the seating chart is back to normal in the classrooms? _____________________________ 2 Folkhälsomyndigheten,

’Grundskolor och övriga obligatoriska skolformer’ [Primary schools and other types of obligatory school] (Folkhälsomyndigheten, 14 April 2021) < https://www.folkhalsomyndigheten.se/smittskyddberedskap/utbrott/aktuella-utbrott/covid19/verksamheter/information-till-skola-och-forskola-om-den-nyasjukdomen-covid-19/grundskolor-och-ovriga-obligatoriskaskolformer/> accessed 25 April 2021 3 Hannah Frejdeman, ’ Skolverket: ”Skolor ska bara kunna stängas i samråd med läkare”’ [National Agency for Education: ”Schools should only be allowed to be closed trough joint consultation with doctors”] (Svenska Dagbladet, 13 March 2021) https://www.svd.se/just-nupresstraff-om-det-radande-coronalaget accessed 25 April 2021

Photo: Stock image from Word.

From my observation of the situation above as well as previous impact assessments made by child right organisations in countries where schools closed, I want to talk about the student’s rights that have been affected in Swedish schools during the pandemic, both before, during and after classes were moved online. The rights I will focus on are, children’s freedom of association, their right to protection from violence, right to physical and mental health, right to play and the most apparent: 4 children’s right to education. A. Right to education The most straightforward right that is affected by the pandemic is children’s right to education (UNCRC Article 28-29). It is indeed cheaper for the schools to remain open, but the quality of children’s education along with the realisation of several other rights suffered as regular schedules were interrupted by teachers and students getting sick. Bear in mind that sickness and sick leave are defined differently today than before the pandemic. Working as a substitute teacher just before our big outbreak at the school I found that many classes were behind schedule due to absent teachers. In the first argument mentioned above for keeping schools open, we touch upon the complex budgetary obligations of the Convention of the Rights of the Child (UNCRC Article 4) in relation to the right to education. _____________________________ 4 UN General Assembly, Convention on the Rights of the Child, 20

November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html

Jus Humanis Journal of International Human Rights Law // June 2021

The state must use their maximum available resources to guarantee the realisation of the right to education, which in the case of an outbreak means moving classes online even though it costs more money to do so. Online classes, on the other hand, affect children’s right to education too. Children lose their face-toface engagement with their teacher as well as their usual dependable everyday routines such as eating breakfast and walking to school. During our weeks of online classes, I noticed that many of my mentor students were still in bed during the first class; therefore, I lost the usual student engagement during this hour. Without face-to-face engagement, the teachers’ pedagogical tools are also affected as the majority of the students did not use their web cameras during class, which made it impossible for the teachers to ensure participation.5 Another argument against online classes is that not all children have access to the material needed to attend online schooling. That is, they might not have access to their own computer or a sufficient internet connection. Furthermore, not all children have a good study environment at home and although not as common in Sweden, girls are especially at risk of missing out on school due to gender inequality in the homes, where they have 6 chores to do which disrupts their online schedule. Here the teachers safeguarding oversight are also disrupted without face-to-face engagement with their students; thus, making it harder to spot children who might be in danger, or lack a sufficient study environment at home. B. Right to the highest attainable standard of health The abovementioned lack of structure and routine during online classes in correlation with the school’s inability to have safeguarding oversight has taken a toll on children’s physical and mental health (UNCRC Article 23). _____________________________ 5 Inter-agency Network for Education in Emergencies (INEE)& The

Alliance for Child Protection for Humanitarian Action, NO EDUCATION, NO PROTECTION- What school closures under COVID-19 mean for children and young people in crisis-affected contexts (The Alliance) (2021), p 8 6 IIbid., p.8

Human beings are social creatures, and the pandemic has caused an unnatural sense of isolation; therefore, the school ensures a natural break from this negative emotion. The school allows for leisure and play outside of the thick walls of the home. Here children’s freedom of association (UNCRC Article 15), as well as their right to play (UNCRC Article 31), plays a big role in the protection of the child’s mental health.7 The Swedish Government base their arguments on the European Centre for Disease Prevention and Control’s 2020 study about the transmission of the virus in school settings. According to the study, no proof shows that there is a high risk of transmission between each student or from the student to the teacher. Children are also more 8 likely to suffer from milder symptoms. Regardless, there have been cases where children have gotten 9 severe health complications due to Covid-19. To prevent a risk of transmission, the study recommends that there is enough space in the classroom to allow for a safe distance between the students. Our crowded classrooms and corridors opened up for a high infection rate of the virus which led to an outbreak at my school. Teachers and children alike tested positive, forcing the school board to temporarily close the school facilities for all students. Here, the Swedish government must acknowledge every individual child and not just the group. The current seating charts in the classroom and the unclear everchanging rules and regulations venture into a violation of children’s right to the highest attainable standard of health. Considering that even though the majority of children do not suffer from severe symptoms, there are still children that are put at risk. ______________________________ 7 Ibid., p.8

8 European Centre for Disease Prevention and Control, COVID-19 in

children and the role of school settings in transmission - first update, (Stockholm: ECDC; 2020) 9 [1] Havard Medical School, ’Coronavirus outbreak and kids’, (Havard health publishing, 12 April 2021) <https://www.health.harvard.edu/diseases-andconditions/coronavirus-outbreak-and-kids> accessed 22 April 2021.

Jus Humanis Journal of International Human Rights Law // June 2021

C. Freedom of association and right to play Like every human being, children have a right to gather and associate with each other (UNCRC Article 15) and unlike adults, children also have a right to play (UNCRC Article 31). Therefore, the state has an obligation to facilitate places of activity where children can meet up with other children. Here, school is a natural gathering point where children associate with other children during class and their leisure time between classes, often in the form of play. In Scotland where schools and playgrounds shut down early into the pandemic, an independent children’s right impact assessment concluded that these closures impacted the children’s access to these rights negatively.10Thus, Sweden’s argument for the schools to remain open supports the realisation of these rights. In contrast to the Scottish example, Sweden argues that if schools close then children will find new ways to gather which might be harmful and unsafe. Keeping the schools open allows for a controlled and safe way to give access to these rights. Moving classes online might ensure the realisation of children’s right to education as it makes sure that the course stays in line with the curriculum regardless of teachers who show slight symptoms. When I asked the opinion of my students regarding online classes, the most common answer I got was that they missed their everyday interaction with their peers especially in between classes. Some even elaborated on how they concentrated better in a classroom due to the discussions and small talk that occurs during class. Here we see a correlation between the right to association, the right to play and the right to education. D. Protection from violence In countries with strict restrictions and “closed” schools, there are figures that show the correlation between school closures and a staggering rise in cases of domestic violence.11 _____________________________

10 Observatory of children’s Human Rights Scotland, Independent

Children’s Rights Impact Assessment on the Response to Covid-19 in Scotland, (2020) p 8 11 Ibid., p.31

Photo: Elena Arvasi, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

Domestic violence and the relevant subcategory of child abuse is a violation of children’s right to be protected from harm (UNCRC Article 19). There is no current data or figures on domestic violence and child abuse in relation to temporary school closures in Sweden. Regardless, based on data from other countries with “closed” schools, such as Scotland, we can assume that the Swedish temporary closures will result in a rise of child abuse cases in Sweden too after this semester. As previously mentioned, online classes interfere with the teacher’s face-to-face interaction with their students and their crucial safeguarding oversight. Therefore, I believe that if the Swedish state were to add this argument to their list, then its decision to not close schools would have been stronger from a child’s right perspective; thus, supporting their current political and scientific arguments. E. Conclusion It is clear that in these uncertain and stressful times, children are suffering. In every scenario where the regular curriculum is interrupted, children’s rights are at risk. The most obvious right that has been affected, and in some cases violated, is the right to education. Sweden’s choice to not close primary schools, basing their decision on scientific proof protects children’s right to education, as well as their right to association and right to play.

Closing schools can affect children’s right to education since the teachers lose their face-to-face tools and with it the student’s participation and engagement. Online classes also interrupt the student’s normal schedule and everyday structure which affects their study environment. The biggest risk with closing school is the correlation between online classes and the rise of domestic violence which has been proven in countries where school closed early on. On the other hand, keeping schools open risks violating some children’s right to the highest attainable standard of health due to unsafe seating charts and unclear rules. The aim of this article was not to conclude whether Sweden’s strategy is the best or worse but rather to observe and analyse how Sweden has handled the pandemic in the school from a child’s right perspective. That is, how the Swedish government’s decisions have affected the protection and realisation of children’s rights. Rather than questioning what is right and wrong, further research regarding the pandemic needs to be conducted about the prioritisation of certain rights. For example, is the quality of children’s education more important than children’s right to play? Does the prevention of violence against children trump the quality of the child’s education? Is there any scenario where no rights are violated or at risk of being violated? I have concluded that the virus does not care about children’s rights. But this does not mean that the government also should not care.

Sara Helgesson has degrees in Human Rights from Malmö University (BA, 2019) and The University of Edinburgh (LLM, Merit 2020). Sara has also studied both political science (2017) and an introductory law course (2020) at Lund University. In 2020, Sara wrote a report that has been used for the promotion of the Scottish UNCRC incorporation bill (2020).

Jus Humanis Journal of International Human Rights Law // June 2021

THE RISE OF “MODERN” CHILD LABOUR THROUGH THE DIGITAL ECONOMY IN BRAZIL Article by Liliana Picchi Cappuccelli The world of work has been changing rapidly and intensely, and technology has been the main driver of this transformation today. In the meantime, labour protections have shown to be insufficient as many workers are left with no guarantees, due to either law gaps or lack of regulations. The situation of children in the new digital economy is still little explored, but as a human rights issue it deserves special attention as if not properly addressed, it might grow and worsen over time. This article is divided into five parts: first section is dedicated to explain what is child labour; second section, “child labour is not accidental: poverty, inequality and culture” digs the roots of child labour in Brazil; third section analyzes “the legal framework for the protection of children in Brazil”; fourth section, “new forms of work, new models of exploitation” exposes the fragility of the non-standard worker; the fifth section “location-based platforms: getting your food at the expense of child labour” inserts the child in the context of app-delivery services; and finally, the conclusion, in which challenges as well as some solutions are presented.

I. What is child labour? To begin with, not every type of work done by children is considered harmful. Convention No. 138, art. 7 (1) states that “National laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is: a) not likely to be harmful to their health or development; and b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received”. Therefore, certain forms of work are permitted when properly regulated for the protection of children, such as “light work”. However, “child labour” and “youth employment” should not be mistakenly considered the same thing. The term “child labour” must be understood as the ILO defines it: work that is mentally, physically, socially and morally harmful for children. It is work that interferes with children’s development and prevents them from attending

oãçudorpeR ,acesnoF ordnaeL :otohP 48

Jus Humanis Journal of International Human Rights Law // June 2021

and concentrating at school, and ultimately deprives them from their childhood, potential and 1 dignity. Thus, child labour as defined above is what is going to be pertinent for the considerations of this article. II. Child labour in Brazil is not accidental: poverty, inequality and culture To put in perspective, child labour has existed in Brazil since its colonization. Nonetheless, the ILO indicated three main factors that combined by the 1980s increased the number of working children and adolescents: a) Growth of the youth population; (b) Increase in the concentration of 2 wealth; (c) A culture favourable to child labour. For the purposes of the present analysis, points (b) and (c) are of main importance as they resonate until today. Poverty is one of the root causes of child labour. It’s proven that there is a strong relation between child 3 labour and poverty, inequality, and exclusion. As a cyclical issue, if not addressed, child labour can reinforce intergenerational poverty. In this sense, the COVID-19 pandemic has aggravated inequality and increased the number of impoverished families. As a response, households turn to children to get financial support: “(…) parental unemployment due to economic shocks in Brazil has led children to step in to provide temporary support, 4 for example.” The ILO has declared that the COVID-19 crisis threatens to reverse years of progress in tackling child labour worldwide. Confirming this statement, a United Survey in São Paulo found that child labour rose by 26% from 5 May to July in 2020. _____________________________ 1 Constance Thomas. “Freedom from child labour: a fundamental

3 4 5

right”. Research handbook on labour, business and human rights law. p. 253. ILO. “The good practices of labour inspection in Brazil”. The prevention and eradication of child labour. p. 15. Available at: https://www.ilo.org/wcmsp5/groups/public/---americas/---ro-lima/--ilo-brasilia/documents/publication/wcms_233534.pdf Ibid. ILO. Covid-19 and the Child Labour: a time of crisis, a time to act. p. 9. Fabio Teixeira, “Children in Brazil found working for delivery apps”, 2020, Available at: https://www.reuters.com/article/brazil-traffickingapps/exclusive-children-in-brazil-found-working-for-food-deliveryapps-idUSL8N2I656O

Even though progress has been made, a culture favourable to child labour in Brazil is still present. Sadly, and shockingly, Brazil’s President Jair Bolsonaro himself has stated in 2019 that “work, at any age, brings dignity and that [he] began working at the age of eight” which reflects a consensus in Brazil that work will keep young people away from drugs and from involving in criminality 6. Following this embedded cultural mentality, a Youtuber deliveryapp worker posted a tutorial video teaching minors on how to sign up and work for food delivery-apps. He said that he would authorize his 15 years old nephew to work using his account: “[My nephew] lives in one of the most dangerous favelas in Rio [...] doing deliveries would be a luxury, a lot less dangerous than staying in the slums”. Child labour must be constantly addressed. Thus, although it is true that most of child labour happens in agriculture, with seven out of ten children working in it? in this domain of the economy 7, if we truly aim to achieve a society free from child labour, then modern labour relations also need to be scrutinized and kept in check. III. The legal framework for the protection of children in Brazil Anchored and in harmony with international conventions and agreements, the Brazilian legislation offers solid protection against child labour. Some of them are of major importance for this paper and will be highlighted henceforth. Initially, it is important to point out that under Brazilian legislation, a “child” is considered a person under 12 years of age, whereas between the age of 12 and 18 the person is identified as an “adolescent”. For the purposes of the present article, the term “child” is adopted for any person below 18 years of age, in line with international law and as it is specified in art. 1 of the UN Convention on the Rights of the Child. ______________________________

6 Fabio Teixeira, “Half of Brazil’s child labourers work in dangerous

conditions”, 2020, Available at: https://www.reuters.com/article/usbrazil-trafficking-children-trfn-idUSKBN28R33P 7 Available at: https://endchildlabour2021.org/what-is-child-labour/

Jus Humanis Journal of International Human Rights Law // June 2021

Extremely important for the scope of this analysis is ILO Convention No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, ratified by Brazil in 2001. Art. 2 states that for the purposes of the mentioned Convention, “the term child shall apply to all persons under the age of 18”, and art. 3 emphasizes that the term “the worst forms of child labour” comprises: “(d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the healthy, safety of morals of children”. Decree No. 6481/2008 regulates art. 3(d) of the mentioned Convention, providing a list with description of activities considered dangerous for children, detailing probable occupational risks as well as probable repercussions to health, which shall be periodically examined, revised, and if 8 necessary updated. For example, item 72, highlights delivery work appoints to risks of traffic accidents and exposure to violence, and concussions, injuries, anxiety and stress as health consequences; and item 81 details outdoors activities, without adequate protection against exposure to solar radiation, rain and cold, and lists a series of health prejudices, such as skin burns; premature aging; skin cancer; dehydration; respiratory diseases; actinic keratoses; hyperemia; dermatoses; dermatitis; conjunctivitis; keratitis; pneumonitis and fatigue. Both items apply to appdelivery workers, which are the focus of this paper.

Further, the 1988 Brazilian Constitution in the chapter of social rights, art. 7, XXXIII, states the “prohibition of night, dangerous, or unhealthy work _____________________________

8 ILO. “The good practices of labour inspection in Brazil”. The

prevention and eradication of child labour. p. 18. Available at: https://www.ilo.org/wcmsp5/groups/public/---americas/---ro-lima/--ilo-brasilia/documents/publication/wcms_233534.pdf

.rkcilf ,ikasawak ayomot :otohP

Equally essential, according to the Minimum Age Convention No. 138, art. 3 (1) ratified by Brazil in 2001, “The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years”. In other words, with no exception, no hazardous work – known as the “3D”, dirty, difficult and dangerous – should be performed by persons below the age of 18.

Jus Humanis Journal of International Human Rights Law // June 2021

for minors under eighteen years of age, and of any work for minors under sixteen years of age, except as an apprentice, for minors above fourteen years of age”. IV. New forms of work, new models of exploitation Innovation and communications technologies are shaping new ways of work, and the digital economy is here to stay. Digital labour platforms can be classified into two categories: online web-based and location-based platforms, the first concerning tasks or work assignments done remotely, and the latter work performed in physical locations. As an example, “‘work-on demand via apps’ is a platformfacilitated yet place-based and geographically limited 9 work” , also referred as “manual labour of riders performed offline but managed online” or “crowdwork 10 offline.” It’s important to underline that for location-based platforms, even before the pandemic a determining factor pushing people to these jobs was the lack of alternative employment opportunities. With the pandemic, for many this 11 was the only option they could resort to. During the pandemic, while some business had to interrupt their services and many went bankrupt, lockdown resulted in a growing demand for delivery services, which in many countries are considered an “essential service”, thus allowed to function normally. Platform workers, commonly considered self-employed workers, are usually not covered by the labour framework that protects 12 “standard” employment relations, meaning that entitlements to labour rights such as minimum _____________________________ 9 ILO. “Helping the gig economy work better for gig workers”. Available

at: https://www.ilo.org/washington/WCMS_642303/lang--en/index.htm 10 ILO. “Legal analysis of labour relations in delivery services through digital platforms in Argentina”. p. 5. Available at: https://www.ilo.org/wcmsp5/groups/public/---americas/---ro-lima/--ilo-buenos_aires/documents/publication/wcms_765151.pdf 11 ILO. World Employment and Social Outlook. The role of digital labour platforms in transforming the world of work. 2021 pg. 5. Available at: https://www.ilo.org/global/research/globalreports/weso/2021/WCMS_771749/lang--en/index.htm 12 Recently, a groundbreaking decision by the UK Supreme Court ruled that Uber drivers are entitled to more protections, such as paid vacation, pension plan and minimum wage. Available at: https://www.nytimes.com/2021/03/16/technology/uber-uk-driversworker-status.html

wage, sick leave, holiday pay, unemployment insurance as well as other benefits are inexistent. Therefore, the pandemic has both aggravated and exposed the vulnerability of the platform-worker. As underlined by the European Parliament, “the pandemic has highlighted the manner in which platform workers are systematically underemployed, underpaid, under-protected and lack basic social 13 protection such as paid sick leave.” V. Location-based platforms: getting your food at the expense of child labour The gig economy, which encompasses locationbased platforms, has not only created new forms of work and employment relations, but also a modern form of child labour. Whereas some of the worst forms of child labour were previously of difficult inspection due to isolated regions (such as child labour in agriculture, encompassing for instance farming, fishing and aquaculture, forestry and livestock production) and domestic work where children are ‘hidden’ inside, in the gig economy children are working in big cities, such as São Paulo and Rio de Janeiro, constantly exposed to the public’s eyes – yet invisibles. In this regard, the Thomson Reuters Fundation has uncovered cases of children working for food delivery-apps in Brazil amid the COVID-19 pandemic, such as Rappi, iFood, 99Food and Uber Eats. Entering the system is easy: children either sign up using relative’s documents or use their relative’s accounts. However, this is not something new – it’s been only exacerbated by the pandemic. A report from August of 2019 had already indicated the presence of underaged working for deliveryapps. One of the workers interviewed, aged 18, revealed that he had started working when he was 16-17 – now known as a common method, he simply used his cousin’s documents to register.14 ______________________________

13 European Parliament. Available at:

https://www.europarl.europa.eu/doceo/document/P-9-2020002114_EN.html 14 Gil Alessi. “Jornada maior que 24 horas e um salário menor que o mínimo, a vida dos ciclistas de aplicativo de SP”. Available at: https://brasil.elpais.com/brasil/2019/08/06/politica/1565115205_33 0204.html

Jus Humanis Journal of International Human Rights Law // June 2021

To expose how app-delivery services are harmful for children, it is helpful to understand how they have been affecting adults as well. Safety conditions are shameful. For example, a recent report indicates that food delivery companies “do not check whether their delivery riders have working bikes – or can even ride a bike – before approving 15 them to work, according to multiple workers” . In contrast, a manager of a bicycle rental company from Sydney declared that he has seen many “deliverers using poorly maintained bikes where the tyres and brakes are “gone”, and also added that he refused to rent bikes for approved food appdelivery workers because it was “clear” that they could not proper ride a bike. One former deliverer worker for Uber Eats, Bruna Correa, who had no experience with bikes and broke an arm while working pointed out that the company never “checked whether she had a working bike, whether her bike was in good condition, or if she could properly 16 ride one”. As training, the company only provides “videos”. Even though this was in Sydney, a parallel can be traced as the company’s internal policy works in the same way (or even worse) in Brazil. Working conditions are remarkably precarious. According to Guilherme Minarelli, a social scientist at the University of São Paulo (USP), “(…) many gig workers in the state who live in favelas must often cycle up to 50 km (30 miles) to reach food delivery hotspots (…) some workers, among them children, sleep in parks after work to avoid cycling home and back”. In 2020, during a protest in São Paulo claiming better conditions, one of the workers said that he runs up to 100 km a day with his bicycle to make deliveries, adding that he eats rice and beans in the morning before leaving home and only eats again at night, when he gets back home: “I work 17 hungry, delivering food every day” . _____________________________ 15 BeNaaman Zhou. “They don’t have brakes, the tyres are gone”: food

delivery companies accused of bike safety failures. Available at: https://www.theguardian.com/australia-news/2020/nov/29/theydont-have-brakes-the-tyres-are-gone-food-delivery-companiesaccused-of-bike-safety-failures 16 Ibid. 17 Bárbara Muniz Vieira. “Entregadores se unem por melhores condições de trabalho nos aplicativos: “Entrego comida com fome”, diz ciclista. Available at: https://g1.globo.com/sp/saopaulo/noticia/2020/06/21/entregadores-se-unem-por-melhorescondicoes-de-trabalho-nos-aplicativos-entrego-comida-com-fomediz-ciclista.ghtml

Photo: Sheila Pinheiro, www.noticias.r7.com

Also alarming, gig economy is indirectly harmful to children’s development. A study suggests that “toddlers whose mothers work nonstandard hours demonstrate lower-than-average cognitive skills, while another found that those in preschool are more likely to struggle behaviorally” 18 . Consequently, and more broadly, it can be said that it’s not in the best interest of the child neither to work in hazardous work, nor to have their family members in it, as both direct and indirectly affect their development. Conclusion In the light of digital economy, holding the means of production in order to profit is no longer a requirement. Thus, the mediation of work has become a highly lucrative work tendency. Digital economy has introduced new forms of work, and “location-based platforms” is a new category. As shown above, app-delivery services do not provide any equipment, and workers need their own smartphone and bicycle to be able to start working. As “non-standard” workers, they are left without basic protection of labour laws and exposed to precarious safety and working conditions. Over the years, Brazil has without a doubt made progress combating child labour. Nonetheless, the fact that children between the age 12 and 18 years old are considered “adolescents” in Brazil contributes to the fact that many overlook and do _____________________________ 18 Dana Suskind. “Opinion: How the gig economy puts children’s

development at rist and what we can do about it”. Available at: https://hechingerreport.org/opinion-how-the-gig-economy-putschildrens-development-at-risk-and-what-we-can-do-about-it/

Jus Humanis Journal of International Human Rights Law // June 2021

not consider hazardous work done by them as “child labour” – especially because children themselves are taking initiative to work as appdelivery workers (although encouraged and authorized by family members), while the imaginary of the Brazilian citizen about child labour is still mostly that of the child being forced to work in the fields or in domestic work. In addition, there is still a strong culture that believes in child labour as something that “builds character” and as an acceptable path against poverty and the “world of crime”. Therefore, campaigns are necessary to raise people’s awareness and change this ingrained culture. The Brazilian government needs also to address poverty and inequality as driving factors pushing children to child labour, through income transfers and fairer taxes, for example. Furthermore, after the pandemic, incentives to attend school will be crucial for the avoidance of permanent dropping out of school in the combat of intergenerational poverty.

Worth mentioning, labour inspectors are extremely important and one of the advantages is that inspectors have the power to enter workplaces without prior notice or authorization. However, the digital economy presents a new challenge as there is no fixed place of work and app-delivery workers are in constant movement. One solution could be, for instance, mapping the spots in the city where usually app-delivery workers use to rest between delivery shifts. Initiative should also be taken by partners restaurants, which could also check the app-delivery workers’ identity documents. Restaurants should have a shared responsibility and be more proactive to not indorse child labour. Still, civil society alongside governments need to pressure companies to provide better mechanisms against child labour – only a jointly action can prevent and stop this new “modern” child labour.

Liliana Picchi Cappuccelli is a Brazilian lawyer currently pursuing a LL.M in International Human Rights Law at Lund University. She has experience interning at government agencies and is a volunteer at RFSL Mälmo. Her interests involve the fast-paced changes of working relations in a globalized world and its effects on human rights.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Ánh Nguyệt Trần, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

ONLINE EDUCATION AND POVERTY: HOW THE PANDEMIC HAS CHALLENGED THE RIGHT TO EDUCATION ACROSS EUROPE Article by Daniela Silipigni The covid-19 pandemic has led to a sudden shift to online education across Europe, challenging the right to education of every child. Online education found several families unprepared to adequately sustain their children as they lack access to the internet, electronic devices, and space for studying. This article uncovers the harsh reality behind online education and how European countries have failed to ensure proper access to education for every child. In February 2020, countries in Europe entered what would become a living nightmare. With the rapid increase in covid-19 infections, Italy was one of the first European countries to enter lockdown. Lockdown meant releasing the pressure from the healthcare system and protecting the most vulnerable. However, lockdown also entailed the closure of schools and the shift to digital learning across Europe. Articles 28 and 29 of the UN’s Convention on the Rights of the Child 1 as well as 2 article 14 of the EU Charter of Fundamental Rights deal with every child's right to education, and they highlight the importance of this invaluable human right. These articles lay out every State's responsibility to ensure that every child gets access to education in a proper and dignified way. But how has the covid-19 pandemic challenged children's right to education across Europe?

However, when online education was being offered, many families were unprepared to support their children in the most appropriate way. The research carried out by the European Commission in 20203 highlighted the negative impact that online education had on children in Europe, especially those coming from lower socio-economic backgrounds. The European Commission's research showed that in 2016, 9% of 4th graders across all European countries did not have internet access. It also highlighted how even though access to the internet might have improved through the years, one cannot state for certain if inequality in internet access has been resolved or decreased. Thus, we can expect that a percentage of children across Europe have had their right to education challenged by an essential tool for online learning. The latter point was proven by a study carried out 4 by Save the Children in Italy which reported that 28% of students between 14 and 18 years have claimed to know at least one classmate who dropped out of online education for lack of internet access. ______________________________ 3 European Commission (2020), Educational inequalities in Europe and

physical school closures during Covid-19, European Union

4 Save the Children (2021), Scuola e Covid: per il 28% degli adolescenti

un compagno di classe ha smesso di frequentare la scuola, available at: https://www.savethechildren.it/press/scuola-e-covid-il-28-degliadolescenti-un-compagno-di-classe-ha-smesso-di-frequentare-la Translated by Daniela Silipigni

At the beginning of the pandemic, many children around Europe were abandoned by the education system. With some children in England out of any kind of formal schooling for weeks, the right to education granted to them by the UN and the EU are put in question. Of course, these were unprecedented circumstances and some European countries rushed to put frameworks in place to correct this issue. ______________________________ 1 UN General Assembly, Convention on the Rights of the Child, 20

November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: https://www.refworld.org/docid/3ae6b38f0.html 2 European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02, available at: https://www.refworld.org/docid/3ae6b3b70.html

Photo: Cheney Orr—Bloomberg/ Getty Images (time.com)

Jus Humanis Journal of International Human Rights Law // June 2021

UNICEF further reported that around 3 million children in Italy have not attended online education due to lack of internet access or an appropriate electronic device.5 Following UNICEF's data, one can see that access to the internet is not the only challenge faced by disadvantaged families. Indeed, the lack of multiple electronic devices has also proved to be a difficulty since having at least one device per home does not entail that it will be used for homeschooling purposes. Additionally, in the Czech Republic, research has found that only 1/4 of upper secondary schools succeeded in involving all pupils, while online communication could not be established with more than one-fifth of the pupils. Not only that, more than 1.5% of the pupils of these upper secondary schools did not participate in distance education at all.6 Similarly, during the period of lockdown in France, primary school teachers estimate that they were not able to keep up with an average of 6% of their students, and numbers as high as 10% were reported from middle and high school teachers.7

However, due to the shift from physical schooling to online learning, the lack of such school meals has had a significant impact on pupils, and potentially, their learning capabilities too. Several European countries have tried to solve the issue by ensuring the delivery of daily meals by schools. Nevertheless, as seen in the case of England, the strategy of sending food parcels to families has proven to be flawed, with many kids not having enough meals to ensure proper nutrition 9 throughout the week. There are several factors that come into play when we discuss access to online schooling. When one considers the financial impact of the pandemic, it is easy to see how this can worsen the situation for many families. The division between those coming from poorer backgrounds and those coming from more advantaged backgrounds has been exacerbated by the pandemic, with the OECD10 reporting that children who are coming from families that are better off spend 30% more time home learning than their poorer counterparts.

Another element hampering children's learning in the age of the covid-19 pandemic is the lack of a quiet place to study during lockdown. According to the European Commission, 25% of children across Europe lack a quiet learning environment, with shocking figures ranging from 9% in Denmark to 49% in Italy.8 Even though it might seem a superfluous problem, a quiet space for studying represents a significant challenge for many families, particularly those with more than one child. The shift to online education has also entailed the deprivation of some children of daily meals, which would have been provided by the school prior to school closure. As seen in the case of school meals in England, children coming from lower socioeconomic backgrounds are provided with free meals, with their families relying heavily on the provision of such meals. ______________________________ 5 UNICEF (2021), La didattica a distanza durante l’emergenza COVID-19:

l’esperienza italiana, UNICEF, Translated by Daniela Silipigni

6 Czech School Inspectorate (2020), Distance learning in basic and

upper secondary schools in the Czech Republic (abridged version for international audience) Thematic report 7 Ministère De L'Éducation Nationale (2020), De La Jeunesse Et Des Sportsnote d'Information n° 20.26, juillet 2020 version anglais 8 European Commission (2020), Educational inequalities in Europe and physical school closures during Covid-19, European Union

Ultimately, we are left with many questions. When a device or access to Wi-Fi is a determinant in a child’s access to school, is it the government’s responsibility to assure that this is available to every child? Are states failing to meet the relevant conventions and charters when not doing so? Looking at the data surrounding the harsh reality faced by numerous pupils across Europe, it is clear that some European countries have failed to provide every child with the necessary tools for proper access to online education; thus, possibly failing to ensure their right to education. Even though the rise in covid-19 infections represented an emergency for every country across Europe, I believe states should have implemented a better strategy to equip every child with the right tools. ______________________________

9 BBC (2020) Free school meals: Mother's 'sadness' at 'mean' food parcel 10

https://www.bbc.com/news/uk-55641740 OECD (2020) Strengthening online learning when schools are closed: The role of families and teachers in supporting students during the COVID-19 crisis

Jus Humanis Journal of International Human Rights Law // June 2021

This failure on behalf of European states will contribute to the strengthening of already existing inequalities between children. It is, thus, vital for States to bring forward targeted actions that will help disadvantaged children reach the level of their fellow pupils. This article aimed to bring attention to the impact that online education has had on this generation, and will have on future generations. The European Union is one of the biggest advocates for the promotion of human rights around the world, but in the age of the covid-19 pandemic, several EU countries have struggled to ensure that every child within their country had proper access to education, undermining the very idea behind the right to education.

The shift to digital learning and the issues arising from it strengthens the existing inequalities among children in Europe, contributing to a more unequal European society. The inequality created through this shift to digital learning is in stark contrast with the EU’s existing policies on human rights promotion and whilst the EU is promoting human rights around the world, there are current inequalities within its own remit. It is time for the European Union to work on the weaknesses of societies across Europe and strengthen the collaboration among countries, paying particular attention to the most disadvantaged ones.

Daniela Silipigni has a Bachelor in Human Rights and is currently studying a Masters in Sociology of Law at Lund University. She is a human rights activist and her research areas of interest include informal dispute processing and its relationship with human rights.

Photo: ILO Asia-Pacific, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

TERRITORIAL MARGINALIZATION: A THREAT TO CHILDRENS’ DEVELOPMENT AND EQUAL OPPORTUNITIES Article by Lina Olsson So called socially disadvantaged areas have caught wide attention in the contemporary political debate in Sweden. In this paper, I highlight the contradictions of how mapping out certain areas as highly criminalised, unsafe and socially disadvantaged also contributes to further marginalisation and risk affecting children in ways that conflict with the Convention on the Rights of the Child regarding equal opportunities and development. I aim to question the political discourse and its tendencies to territorial marginalization in favour of providing appropriate social support and welfare. The notion of socially disadvantaged areas, or the Swedish translation utsatta områden, is nowadays widely used in popular media as well as 1 government reports in Sweden. Google.se gives you more than 11 million search results when typing in utsatta områden - from news reporting on the rising criminality and articles debating on what measures should be applied to curb this, to university studies exploring the vulnerability of the affected residents. A common definition of a disadvantaged area applied by the Swedish Police Authority is “a geographically delimited area characterized by a low socio-economic status where the criminals have an impact on the local community.” A particularly disadvantaged area has in addition “a widespread reluctance to participate in the legal process and difficulties for the police in fulfilling their mission.” Moreover, a disadvantaged area whose criteria almost amount to a particularly 2 disadvantaged area is classified as a risk area. Although these definitions seem quite straight forward, the discourse is complex due to a majority of alternative definitions. __________________________

1 Sydsvenska Dagbladet. (elektronic)

https://www.sydsvenskan.se/story/malmos-utsatta-omraden Retrieved in 2021-04-15.

2 Swedish

Police Authority. (2017). Utsatta områden—Social ordning, kriminell struktur och utmaningar för polisen (Vulnerable areas—Social order, criminal structure and challenges for the police). (In Swedish). The National Operations Department, The Intelligence Unit. cit.13ff

Photo: Jessica Gow / TT, www.svd.se

Jus Humanis Journal of International Human Rights Law // June 2021

Reports from Brottsförebyggande Rådet (Brå) applies the same notion to certain geographical areas characterised by various poor socioeconomic conditions, 3 while the Children's Ombudsman use the same notion to describe a geographical area with 'poor economic, social and 4 cultural capital'. It is not remarkable that different definitions are applied in different contexts to meet different purposes. But it can be very confusing both for the experienced researcher as well as for the layman who builds superficial knowledge through media reporting. Consequently, socially disadvantaged areas have become a narrative with a blurred definition where little attention is paid to the implications such categorization has. One of these implications is positioning of social 5 space which sets the boundaries for how and what resources are available to the residents; hence, including the children, in the affected areas. Although Sweden is assumed to be a country that provides good social conditions for children, it has also been acknowledged that there are differences across the country. Factors such as economy, health and opportunity to assimilate education can be unequally distributed among children depending on residential area.6 Financial vulnerability in combination with social problems is more common in certain geographical areas than others,7 and can affect the child's everyday life and future opportunities compared to the children living in residential areas where the socio8 economic status is higher. Moreover, it has been acknowledged that children in socially disadvantaged areas are aware of their situation and that they are part of contexts that are defined _____________________________ 3 Brottsförebyggande Rådet. Brå (2018). Developments in the

6 7 8

socially disadvantaged areas in the urban environment 2006-2017. Rapport 2018:19. p.11. (In Swedish) Children's Ombudsman. (2018). Exclusion, violence and love of the place: children's voices about growing up in vulnerable municipalities and suburbs. Cit.14(In Swedish). Retrieved 2021-0408 from https://www.barnombudsmannen.se/ Wacquant, L. (2019) Class, Ethnicity and State in Making of Urban Marginality. Class, Ethnicity and State in the Polarized Metropolis pp 23-50. p.38 SCB. (2018). Welfare - statistics on welfare, labor market, education and population. SCB's TidskriftVälfärd. 2018:1. p. 32 (In Swedish) Pålsson. D. (2012) Social exclusion: Young people's voices about social exclusion. Unicef. Cit.10 (In Swedish) SOU (2017). The next step on the road to more equal health. Stockholm. 2017:47 p. 77. (In Swedish)

in special terms,9 it should be questioned whether the child's right to development is met in socially disadvantaged areas. One of the provisions of the UN Convention on the Rights of the Child (UNCRC) establishes the child's right to development to the 10 maximum extent. Such development should not be restrained to the physical development but rather be interpreted in a broader sense, further including the child's mental, spiritual, moral, psychological and social development.11 The children's Ombudsman in Sweden have highlighted children's position and experience from living in socially disadvantaged areas and shows in part how low expectations and lack of faith in the future 12 are expressed, with somehow contradictory implications since such label contributes to confirming certain boundaries linked to the child's residential area. Thus, it might seem to be a slippery slope between acknowledging children's vulnerability without confirming it in a negative sense. But I would claim that we are posing the wrong question; while children's own experiences are valuable, the essential issue and its causes are still to be searched for in the political governance of how to handle so-called socially disadvantaged areas. I aim to echo Barker who is arguing that “for those individuals and social groups that are not fully incorporated into the social, economic, and the political order, the Swedish welfare state can be inaccessible and punitive.“13 For instance, the Swedish National Intelligence Centre (Nuc) is reporting particularly disadvantaged areas to have both a high proportion of granted welfare benefits but also high rates of violation of the welfare system. Furthermore, these areas are reported to _____________________________ 9 Ibid., 4 10 Article 6 in UN. (1989). The Convention on the Rights of the Child.

A/RES/44/25, United Nations (20.11.1989). www.ohchr.org/en/professionalinterest/ pages/crc.aspx (Retrieved 2021-04-07). 11 Committee on the Rights of the Child General Comment No. 5 (2003). General measures for the implementation of the Convention on the Rights of the Child. p.6. Retrieved 2021-04-08 from https://www.barnombudsmannen.se/ 12 Ibid., 4 13 Barker, Vanessa (2012) Nordic Exceptionalism Revisited: Explaining the Paradox of a Janus- faced penal regime. Theoretical Criminology, vol. 17:1, pp. 5-25, Cit.16 ff

Jus Humanis Journal of International Human Rights Law // June 2021

be driven by economic crimes and corruption, as well as hosting a large number of individuals staying illegally in the country, making a living from criminal activities.14 Thus, I will argue that a description of such geographical area including its residents could also be formulated as; people living under poor economic conditions, sometimes even as hidden refugees, dependent on and in need of welfare to a greater extent than what is temporarily being offered. But when the Police Authority reports the significantly higher unemployment rate or the proportion of students leaving primary 15 school without approved grades, it seems more that the individuals included in these numbers constitutes a risk of committing future crimes thereof a threat to society, than in need of more extended welfare initiatives. Demarcation of so called socially disadvantaged areas functions as 16 'territorial stigmatization' which sets the conditions for how the area will be treated both politically, such as investors and organizations avoiding 17 establishing themselves in the area, but also in terms of the conditions that residents can expect from their neighbourhood and each other. _____________________________ 14 Nationella underrättelsecentrat, NUC. (2017). Government-wide

situation picture of organized crime 2018-2019 within the government-wide initiative against organized crime. Cit.15-17 (In Swedish) 15 Supra note 2. p.12 16 Supra note 5 p.40 17 Supra note 8 p. 171

Photo: www.sverigesallmannytta.se

Expectations from both within and outside the area contribute to the construction of the area as disadvantaged, unsafe and of less value in relation to the rest of society. Such constructions can be 18 found in media described as 'no-go-zones', implying that rescue services are unable to enter the areas without a police escort, or in narratives of how certain demographic areas function as parallel 19 societies. In other words, children living in these areas, are already at an early age fed with negative perceptions about their residential area and what it means to grow up there. This 'advanced marginality' is not a natural phenomenon caused by inevitable forces, but a marginality caused by conscious political measures such as “[e]conomic 20 ‘deregulation’ and social protection cutbacks”. Advanced marginality have serious consequences for the citizens concerned, where there is a focus on the demographic area as a threat to society rather than political forces as a threat to the less benefited individuals. Consequently, we should shift the discourse from children of disadvantaged areas, and instead clarify that we are referring to children who lives in areas marginalized and disadvantaged by the state. _____________________________ 18 Norsk

rikskringkasting. (Retrieved 2021-04-10) from https://www.nrk.no/urix/svensk-politi_-_-vi-er-i-ferd-med-a-mistekontrollen-1.12920404 19 BRÅ (2018). Perceptions of the justice system in socially disadvantaged areas. Report 2018:12. p.12 20 Supra note 5 p.29

7 06 0

Jus Humanis Journal of International Human Rights Law // June 2021

When the state appears to act upon criminality and violence by mapping out certain areas as disadvantaged, vulnerable or utsatta, we assume this is done with noble intentions of preventing and alleviating suffering. Indeed, maps are widely used to describe phenomena such as crime, insecurity and social vulnerability, bringing several benefits. Once it becomes clear that crimes are not equally distributed over space, resources can be invested 21 in the areas or 'hotspots' that are the most exposed to crimes. For the sake of children's safety, police data can be used to map out places where children risk being exposed to crime, geographical methods/safety mapping can be applied to elaborate on how to reduce harm to 22 children outside their homes, or to perceive of children's own experience of safe environments.23 Through crime mapping, socially disadvantaged areas that are affected by a higher proportion of crime may be allocated more police resources in order to reduce crime, increase security and ensure the quality of life at the community level. Why would anyone possibly be urged to question such a winning concept? I will argue that there to be crucial causes to be very careful with this winning concept, since such crime map can be “a powerful tool in constructing a particular reality as much as it attempts to depict reality depending on the scale, symbology, and 24 data chosen by the creator.” Hence, what is left out from the map could be as crucial as what is included. It may seem superfluous to point out that a map demonstrating fatal shootings in a certain area in Malmö fails to highlight the green parks where kids with big dreams can play football, or the dedicated middle school teachers who works hard to secure their pupils reading ability. _____________________________ 21 Vandeviver, C. and Bernasco, W. (2017), “The geography of crime and

crime control”, Applied Geography, Vol. 86, pp. 220-5.

22 Jenny Lloyd. (2020). “Sometimes the whole map is red”: applying

geographical assessment methods to safeguard adolescents from harm in communities. Safer Communities.VOL. 19 NO. 1 2020, pp. 35-47. 23 Karin Enskär, Gabriella E. Isma, Margaretha Rängård. (2021) Safe environments: Through the eyes of 9‐year‐old school children from a socially vulnerable area in Sweden. Child Care Health Dev. 2021;47:57–69. 24 Nicole Reiz | Shannon O'Lear | Dory Tuininga. (2018). Exploring a critical legal cartography: Law, practice, and complexities. Geography Compass. 2018;12:e12368.

Photo: Elena Arvasi, flickr.

Similarly, a map which demonstrates where contribution fraud is most common does not necessarily take into account where poverty is highest rated. In other words, when we are shown a certain map, or told that a certain geographical area is disadvantaged due to peculiar circumstances, we are presented certain truth constructed for certain purposes. With respect to that, crime-mapping, as well as it works as an aid, allows the state to perform its symbolic powers when “[p]ublic policies contribute to producing urban reality through their activities of official 25 classification and categorization.” For instance, Nuc is applying 'criminogenic factors' such as low income, ethnicity or deficient education as indicators to estimate high crime rates in 26 particularly disadvantaged areas. In other words, if you dare submit to being foreign-born, having an income substantially lower than average or drop out of school, then you might meet the criteria for committing a future crime, at least as suspected by the state. And while it is clear to me that social and human services, welfare so to speak, are needed in order to meet inquiries regarding work and education, these measures seem to be sidelined in favour of prisonfare “that purports to resolve urban 27 ills by activating the judicial arm of the state.” One must critically engage in the issue of whether we should accept that those in power are eligible of deciding this universal truth, or whether other truths are possible. _____________________________ 25 Wacquant when discussing how Bourdieu's notion of Symbolic

Power can expose marginalisation of urban areas, in Ibid 5 cit.37

26 Supra note 14, p.18 27 Supra note 5, p.41.

Jus Humanis Journal of International Human Rights Law // June 2021

Otherwise, social inequality is seen past in favour of dominant groups producing “[d]ifferent patterns of knowledge, and equally importantly, of ignorance.”28 Hence, while listening and engaging in the discourse of socially disadvantaged areas in contemporary Sweden, we must carefully consider the long-term effects of the proposed measures, especially in terms of our children and their future. Even more important, we need to reconsider why and who is benefitted from a certain reality; the reality that there is a need to demarcate residential areas on the occasion of economy, health and culture. We need to pay careful attention to how knowledge is produced and applied, and what implications this knowledge has in relation to the future. Classification, categorization and marginalizing of residential areas have contemporary and future implications for our children's living conditions. This is not to claim the non-existence of violence, criminality and vulnerability in society. Nor do I mean to claim such factors not to be more common within certain _____________________________

geographical areas. But what we need to acknowledge is why such factors exist in the first place. In order for us to protect our children from violence, crime, insecurity and poor living conditions, we must dare to look with critical eyes at what causes the emergence of such. When we provide our children with maps pointing out their residential area as problematized, hazardous and a burden on society, what can we expect from the children in terms of confidence and reliance? What I beyond doubt will argue is that in the act of mapping out how certain residential areas suffer from crime, unsafe environments and vulnerable circumstances, however noble these intentions might seem, we have also created a map that deliver a certain perception of reality. How can we apply responsible knowledge producing as well as to utilise this in the political discourse, in order to create a reality of equal opportunities for our children? This is not an easy task, and that is why I suggest that we need to go beyond our notions and ideas about what forces and dissimulation our society is built upon.

28 Harding, Sandra. "A socially relevant philosophy of science?

Resources from standpoint theory's controversiality." Hypatia 19.1 (2004): 25-47. cit. 39

Lina Olsson is a first-year student at the Master programme in Sociology of Law at Lund University, Sweden. She holds a Bachelor's degree in criminology with a special interest in how law and crime affect women and children, as well as how criminalisation works as a tool in marginalisation and social control.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: rochelleolesonphotography, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

REDEFINING DOMESTIC VIOLENCE AND CHALLENGING ITS “PRIVACY” THROUGH THE PRISM OF CHILDREN’S RIGHTS Article by Cristina Snegur "The more that we choose not to talk about domestic violence, the more we shy away from the issue, the more we lose.” ― Russell Wilson Introduction Even though being amongst the oldest social phenomena and having appalling impacts on the persons subjected to it, domestic violence is still an unsettled issue of International Human Rights Law (IHRL). One of its challenges is imposed by the lack of a clear and universally accepted definition, which leads to subjective interpretations, sometimes leaving vulnerable groups aside and unprotected. Another challenge is characterized by the ambivalent nature of domestic violence. Namely, until recently domestic violence was understood as a private matter or pertaining to the “private sphere”, a family or a household setting, in which the state did not want to interfere to hold perpetrators accountable. It is not surprising then that IHRL was silent on the issue of domestic violence. Beginning with the 1970s, the tendency started to change, however, not fast enough. Domestic violence still presents great threats to its victims and needs to be understood as a public issue, regulated by IHRL. In this article, I will denounce the “privacy” of domestic violence by referring to the right of children to be protected from violence, prescribed in Article 19 of the 1989 UN Convention on the Rights of the Child (CRC). Henceforth, I will firstly explore the notion of domestic violence and will endorse a broader definition that encompasses children as one of the vulnerable groups subjected to this phenomenon. Further on, Article 19 of CRC will serve as the principal ground to challenge the private feature and introduce the international human rights obligation of states to prevent and prosecute instances of domestic violence. Likewise, I will explore the roots of the private understanding of domestic violence and the importance of its legal prohibition. Photo: Gobo-Studio, flickr.

Jus Humanis Journal of International Human Rights Law // June 2021

Definition of domestic violence. Where are the children?

main reasons. First, it protects only female children. Whilst the objective of the Declaration dictates a need to focus on females in the context of violence within the family, all children regardless of gender may be victims of domestic violence. Secondly, the concept of “family” can be narrowly interpreted in a heteronormative way as to exclude sexually diverse partnerships, unregistered marriages, thus, making children born out of wedlock vulnerable. The provision further specifies that violence is prohibited against “… female children in the household”. However, it specifically refers to instances of sexual abuse, failing to encompass other forms of violence (physical, psychological, economic etc.). Some might claim, that other instances could be viewed under the present Declaration due to the formulation “…shall be understood to encompass, but not be limited to…”. Nevertheless, I doubt that male children could be protected by the provisions of this Declaration, as they clearly do not fall within its objective.

There is no universally accepted definition of domestic violence. Yet, customarily, it is viewed as an abuse of a physical, mental or another character, suffered by women and perpetrated by men. The same approach is upheld by various scholars. For instance, Bonita Meyersfeld has elaborated her book “Domestic Violence and International Law” exclusively around the issue of domestic violence against women, as she states that “women as a group are affected by this form of violence more than any other group.” 1 Similarly, Audrey Mullender described domestic violence as men’s abuse of women of a physical, sexual, emotional and economic character. 2 To strike a fair balance, I claim that it has to be recognized that besides women (even though numerically outnumbering), men and children are also subjected to domestic violence. As the focus of the present article is drawn upon domestic violence against children, the other vulnerable groups will not be researched.

On the same line, it is disappointing to see that the UN official website equals domestic violence to "intimate partner violence" and defines it as “a pattern of behaviour in any relationship that is used to gain or maintain power and control over an 4 intimate partner.” I state that this definition is unfortunate for explaining domestic violence. The main reason is that the notion of domestic violence is equalled to the notion of intimate partner violence. The word “domestic” has to be rightly understood as “of or relating to the household or 5 the family.” Nevertheless, the definition of domestic violence provided on the UN website implies violence committed by an “intimate partner”, which has to be understood as “both current and former spouses, boyfriends/ girlfriends, dating partners, ongoing sexual partners.” 6 Thus, the broader sense of the word “domestic” is limited to intimate settings, in which children cannot be included. _____________________________

Some scholars adopted a more extended vision regarding the definition of domestic violence by referring to the provisions of the 1993 UN Declaration on the Elimination of Violence against Women. The present Declaration prescribes: "Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowryrelated violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to 3 exploitation". Although broadening the list of persons subjected to violence within the family, the current provision is unsuitable for defining domestic violence for two _____________________________ 1 Bonita Meyersfeld, Domestic Violence and International Law (Hart

Publishing 2010) 332, p. 3

2 Audrey Mullender, Rethinking Domestic Violence. The Social Work

and Probation Response (Routledge 1996) 332, Chapter 2

3 Declaration on the Elimination of Violence against Women (UN

General Assembly, Resolution 48/104, 1993), Article 2

United Nations, “COVID-19 Response. What is Domestic Abuse?” <https://www.un.org/en/coronavirus/what-is-domestic-abuse> 5 Merriam-Webster Dictionary, “Definition of Domestic”, < https://www.merriam-webster.com/dictionary/domestic> 6 MJ Breiding et. al., Intimate Partner Violence Surveillance: Uniform Definitions and Recommended Data Elements, Version 2.0 (National Center for Injury Prevention and Control, Centers for Disease Control and Prevention; 2015) 156, p. 11

Jus Humanis Journal of International Human Rights Law // June 2021

On this line, it is crucial to refer to the Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment regarding the “Relevance of the prohibition of torture and other cruel, inhuman or degrading treatment or punishment to the context of domestic violence”.7 First and foremost, he rightly states that, besides women, children and men can as well be subjected to domestic violence. Furthermore, I believe that in this report, the Special Rapporteur provides the most appropriate definition of domestic violence. Therefore, according to that definition, domestic violence is understood as: “all acts of physical, sexual, psychological or economic violence that occur within the family or domestic unit or between former or current spouses or partners, whether or not the perpetrator shares or has shared 8 the same residence with the victim.” The reason why this definition is advantageous for explaining domestic violence is because it implies that besides the family home, foster homes or communal care settings can represent units where domestic violence is perpetrated. Moreover, it implies a wide range of violent conduct, amongst which culpable neglect, abusive, coercive or excessively controlling conduct with the aim to humiliate, intimidate or subordinate a person, as well as physical violence, sexual abuse and even murder.9 Children’s right to be protected from violence In consideration of the above, I want to emphasize why children have to be included in the list of subjects of domestic violence.

.rkcilf ,avokabyr anaid :otohP

Being the most ratified Convention, the 1989 CRC expressly prescribes that every child has the right to be protected “from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, _____________________________

7 Relevance of the prohibition of torture and other cruel, inhuman or

degrading treatment or punishment to the context of domestic violence- Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (UN General Assembly, A/74/148, 2019), para 1 8 Ibid., para 2 9 Ibid.

Photo:www.criminalattorneyfortworth.com

including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person 10 who has the care of the child.” Indeed, the independent expert for the United Nations study on violence against children, Paulo Sérgio Pinheiro, has identified “family and home” amongst the settings in which violence against 11 children occurs. The imperative formulation of “… all forms of …” is explained by the Committee on the Rights of the Child as leaving no exception or room for any level 12 of legalized violence against children, however light. According to Article 19 of CRC, the States parties to the Convention agreed upon a non-exhaustive list of different forms of violence against children. Possibly referred to as direct forms of violence against children, those include, amongst others, physical and mental violence, corporal punishment, neglect or negligent treatment, sexual abuse and exploitation, torture and inhuman or degrading 13 treatment or punishment. The effects of violence against children are appalling. After being exposed to violence, children might have short-term and long-term social, emotional and cognitive impairments (depressive disorders, hallucinations, _____________________________ 10 Convention on the Rights of the Child (UN General Assembly,

Resolution 44/25, 1989), Article 19

11 Report of the independent expert for the United Nations study on

violence against children (UN General Assembly, A/61/299, 2006), para 38 12 General Comment No. 13 (UN CRC Committee, CRC/C/GC/13, 2011), para 17 13 Ibid., paras 20-26

Jus Humanis Journal of International Human Rights Law // June 2021

impaired work performance, memory disturbances, even suicide attempts), and manifest health-risk behaviours (substance abuse, early initiation in 14 sexual intercourses). Likewise, children face the highest risk of homicide by parents and someone 15 they know. Another category of violence against children is possible to define as indirect violence, in which children are witnessing other members of the family or the household being subjected to domestic violence. Older children are frequently carrying the role of “help-seekers” or “protectors”, as they may be required to call the police or neighbours in order to help or take care of younger siblings by separating them from the fight scene and taking them in a safer place.16 Albeit not pointedly directed towards children but to other members of the household, such instances inevitably affect the child’s well-being and personal development. Children can replicate the violent model of interaction in their childhood or adulthood. Not less important, intimate partner violence concurrently increases the risk of violence 17 of children in the family. The European Court of Human Rights has identified in numerous cases that children have suffered from direct and indirect violence perpetrated by a member of the domestic unit. For 18 instance, in Talpis v. Italy , the Court found that following conjugal violence, the son of the applicant was murdered by his father, which led the Court to find a violation of the right to life under Article 2 of the European Convention on Human Rights (ECHR). 19 In the case of Kontrova v. Slovakia , after a long history of physical and psychological abuse, the husband of the applicant has shot dead their son and daughter, which similarly to the case of Talpis v. Italy, led to a violation of the right to life under 20 Article 2 of ECHR. In Z & Others v. U.K. , the children were subjected to long term neglect and _____________________________

14 Report of the independent expert… Op. cit., para 36 15 UN General Assembly, A/74/148 … Op. cit., para 25 16 Silke Meyer, “Women, domestic violence and child protection” in

Sheila Shaver (ed.) Handbook on Gender and Social Policy (International Handbooks on Gender series, 2018), p. 326 17 Report of the independent expert… Op. cit., para 47 18 Talpis v. Italy, Application no. 41237/14, ECtHR, 18.09.2017 19 Kontrova v. Slovakia, Application no. 7510/04, ECtHR, 24.09.2007 20 Z and Others v. the U.K., Application no. 29392/95, ECtHR, 10.05.2001

emotional abuse by their parents, due to which the Court found a violation of the prohibition of inhuman or degrading treatment under Article 3 of ECHR. Therefore, following what has been analyzed in the two immediately preceding sections, I state that domestic violence shall be interpreted as a broader concept, including as a separate subcategory the violence against children. All further reflections regarding domestic violence shall be understood accordingly as pertaining to the context of violence against children. Challenging Violence

the

“Privacy”

Domestic

Article 19 of CRC prescribes that in order to protect children from violence, “States shall take all appropriate legislative, administrative, social and educational measures.” The sequence “shall take” is interpreted by the CRC Committee as a “strict obligation […] to fully implement this right for all children […] which leaves no leeway for the 21 discretion of States parties.” Nevertheless, it was inferred by the independent expert for the study on violence against children that the family context is the most challenging regarding the process of eliminating and responding to violence against children, because “it is considered by most as the 22 most private of the private sphere.” This hesitation has some historic roots. Up until the 1970s domestic violence was not viewed as a legal issue at all. Additionally, it was even more problematic to address domestic violence as a human rights law issue, as to a great extent, human rights were viewed as the product of the Western political theory of individual’s rights to autonomy and freedom. 23 The concept of negative rights, which is inherent to this theory, entails that states cannot interfere in certain 24 aspects of an individual’s life. Likewise, human rights have been traditionally viewed as primarily meant to protect individuals’ freedoms against a _____________________________

21 General Comment No. 13, Op. cit., para 37 22 Report of the independent expert… Op. cit., para 38

23 Ronagh J. A. McQuigg, The Istanbul Convention, Domestic Violence

and Human Rights (Routledge Research in Human Rights Law, 2017), p. 18 24 Ibid.

Photo: www.unicef.org.

Jus Humanis Journal of International Human Rights Law // June 2021

violence as they “do not want to interfere with the private life” can explain why states failed to conceptualize domestic violence as being harmful to children as well. It “overburdens” the states with a series of “new” obligations. More concretely, the obligations imposed by the broader context of domestic violence would nothing else but imply the same obligations already generated by Article 19 of CRC. The key “problem” for them would be that these obligations would be possibly framed in a new legal instrument, with an even more urging tone and would provide a new tool for individual complaints.

Photo: Malte Mueller/Getty Images

potentially hostile state25, whereas issues between individuals were considered to belong to the private sphere. As a consequence, in their failure to combat domestic violence, states have comfortably hidden behind the facet of protecting individuals’ privacy. Some indicators of the current understanding of domestic violence as a private matter can be deduced from the Report of Global Progress towards prohibiting all corporal punishment of children. From a total of 199 states, only 62 states have prohibited all corporal punishment of children, including in the family setting, or, only 13% of the world’s children live in states where the law recognizes their right to equal protection from 26 violence, including in the home setting. In most cases, children are suffering corporal punishment as an accepted tool for “discipline”. The fact that states do not interfere in cases of domestic _____________________________ 25 Sandra Fredman, Human Rights Transformed: Positive Rights and

Positive Duties (OUP, 2009), p. 9 all corporal punishment of children: lying the foundation for non-violent childhoods. Together to #ENDviolence. Solution Summit Series (The Global Partnership to End Violence Against Children; End Corporal Punishment, April 2021), pp 8-9

26 Prohibiting

To clarify why domestic violence should be no longer viewed as a private matter, it is pertinent to remind that the obligations imposed by Article 19 of CRC, a hard-law instrument, are legally binding upon the States parties. Out of 199 states, except The Holy See, plus Kosovo, Taiwan, The United States and Western Sahara, all of the States are 27 party to the CRC. Thus, because of the absolute majority of states that have ratified the CRC, there should be no doubt that the obligation of States imposed by Article 19 of CRC to end violence against children brings the issue of domestic violence into the realm of IHRL, worthy of public attention and reaction. Unfortunately, even in cases of legal prohibition, instances of domestic violence against children and the reluctance of authorities to react still occur. For example, in the 28 case of Levchuk v Ukraine , the applicant complained that she and her children were exposed to a great risk of domestic violence and harassment. The risk was nurtured by the excessive formalistic decisions of the national courts, which left her ex-husband with a sense of impunity and the chance to continue the domestic violence. Nevertheless, the still occurring cases of domestic violence should not undermine neither the rights of children to not be subjected to violence nor states’ obligation to prevent and prosecute such cases. Otherwise, continuous noncompliance with the international human rights obligations may give rise to the international state’s responsibility for wrongful acts. _____________________________

27 Prohibiting all corporal punishment of children ... Op. cit., p. 1 28 Levchuk v. Ukraine, Application no. 17496/19, ECtHR, 03.12.2020

Photo: www.unicef.org.

Jus Humanis Journal of International Human Rights Law // June 2021

Conclusion As an outcome of the analysis carried out above, I can conclude that domestic violence is a continuous threat for numerous people around the world. States’ reluctance to approach domestic violence as a public issue and even as an issue of IHRL is doing nothing but fosters its negative impacts on the vulnerable groups. Therefore, a shift from an understanding of domestic violence as pertaining to “private sphere” to a perspective of “public concern” is pivotal. Moreover, the fragmentation of the vulnerable groups subjected to domestic violence in different hard-law and softlaw instruments may lead to an erroneous and limited comprehension of what constitutes domestic violence. Therefore, as it was the primary objective of the present article, I demonstrated that

the definition of domestic violence has to be expanded in a way as to include children, alongside women and men, as domestic violence victims; to not limit domestic violence only to intimate relationships but to include family and other domestic units as settings in which this violation may occur. Finally, a redefinition of domestic violence may lead to a harmonization within the relevant human rights treaties, and urge states to comply with their international human rights obligations. Ultimately, there should be no room for domestic violence in this world. Violence does not mean discipline; violence does not mean power. Every child deserves to live in a non-violent environment, in order to become a loving parent and a kind and respectful individual in future.

Cristina Snegur is a Moldovan lawyer who has received her Master of Arts in International Law and Human Rights from the University of Tartu, Estonia. In the meanwhile, she participated in a traineeship programme at the "Sorainen" Law Firm, where she carried out legal analyses of issues related to: Human Rights, EU law, privacy law, property law and ethics. She decided to deepen her knowledge of Human Rights and is currently doing her LLM In International Human Rights Law at Lund University, Sweden. Her main interest is focused on rights of women and children.

Jus Humanis Journal of International Human Rights Law // June 2021

Photo: Elena Arvasi, flickr.

JUS HUMANIS JOURNAL OF INTERNATIONAL HUMAN RIGHTS LAW 5 ISSUE // JUNE 2021

5 ISSUE // JUNE 2021