An overview of the 3rd International Conference on Taxpayer Rights

Iryna Stepanova, ICO Research Fellow and taxpayer rights defender represented ICO at the conference hosted by the International Bureau of Fiscal Documentation (IBFD) in Amsterdam, The Netherlands, on the 3rd and 4th of May 2018. Here are the insights from the views of Iryna:

 

3rd International Conference on Taxpayer Rights

Taxpayer rights: Good Governance and Legal Remedies

An overview of the 3rd International Conference on Taxpayer Rights 

In the current global tax environment, a number of national and international events regarding taxpayer rights protection are minimal compared to the activities dedicated to exclusively tax liability computation. Starting from 2015, National Taxpayer Advocate of the Internal Revenue Service (IRS), Nina E. Olson, convened three international conferences on taxpayer rights. The last International Conference was hosted by the International Bureau of Fiscal Documentation (IBFD) in Amsterdam, The Netherlands, on the 3rd and 4th of May 2018. It was called by the Taxpayer Advocate Service and sponsored by Tax Analysts, American Bar Association Section of Taxation, American College of Tax Counsel, American Tax Policy Institute, US Branch of the International Fiscal Association (IFA) and the International Association of Trial Judges. This event featured the latest information from various tax agencies, highlighting news about changes in taxation, tax policies, tax-related law and legislation that affect taxpayers from all over the globe. During the conference, leading professors and professionals, government officials and tax advocates from 40 different countries were discussing current developments in the field of taxpayers’ rights protection, identifying actual challenges and perspectives for individual taxpayers, small and media entities.

Owing to my research on taxpayers’ rights and by virtue of the Research Fellowship with the International Communities Organisation (ICO), I had the privilege to participate in the International Taxpayer Rights Conference this year and to be invited to the 4th International Conference on Taxpayer Rights in Minneapolis, MN US, on May 23-24, 2019. The ICO Research Fellowship supported the participation hereby giving me an outstanding opportunity to share the ideas of the project on the importance of taxpayers’ self-determination and the establishment of a mechanism for better protection of taxpayers’ rights. The project on self-determination and taxpayers rights protection provides an opportunity to explore how comprehension of taxpayers’ rights by themselves and other involved parties serve as a foundation for effective tax management. The analysis of expectations, challenges, relations’ qualities and solutions includes past and current developments, and focuses on practical realities through a theoretical research. In addition, it purports to render taxpayers more competent and to actuate a collection of various methods and means to improve taxpayers’ rights protection worldwide. The proposed tools for better protection of taxpayers’ rights worldwide include a binding International Taxpayer Bill of Rights (ITBR) and the establishment of a protection mechanism, e.g. an ITC (International Tax Court) or a newly introduced – during the conference – Council Mechanism within the IBFD. These mechanisms could represent a remedy and serve as platforms to address and, in some cases, to appeal a state’s tax policy and implementation of tax law, lobbying human rights relevant to the administrative tax services.

 

Good governance and remedies: taxpayer rights in application.

 

The current environment for taxpayer rights: prediction of taxpayers’ behaviour

 

Social media are constantly covering taxation practices from different perspectives, focusing on a taxpayer’ rights and inconsistent tax administrations in different countries. The 3rd International taxpayer rights conference concentrated audience attention on the notion of trust and highlighted multidisciplinary approaches besides law – psychology, economics, and sociology – dedicated to good governance and legal remedies. Analysis of taxpayers’ legal rights includes cases when those rights have been impaired, impeded, violated in some way, how administrative practice ensures respect for taxpayers’ rights and what leverages are available to taxpayers, as well as what is the role of taxpayers to build the trust. Noteworthy is, however, the way different cultures, legal systems, and tax administrations affect the awareness of taxpayer rights.

A holistic approach to a better understanding of taxpayer rights was also provided under ethnographic and anthropological scrutiny. In this regard, it is especially beneficial to examine engagement of tax administrations and collaboration among tax advisors, accountants, lawyers, unions, employer associations, businesses, politicians, the media, other stakeholders in the interested organisations and the public. Only through a multidisciplinary analysis is possible to achieve an optimal effect of an administrative penalty on taxpayer trust in the tax system.

 

Assessing the taxpayer’s rights situation in the United States

 

The U.S. citizens are enjoying the American Taxpayer Bill of Rights (ATBR) since 2014 and, due to the low knowledge about the bill, the Internal Revenue Service (IRS) is entitled to spread awareness of those rights among taxpayers. After introducing its modus operandi – an updated internal revenue code – the IRS employees are also responsible to ensure and adhere to the taxpayers’ rights. In addition, it should be explained to taxpayers what they can expect from a tax authority. At the same time, it is important to remember that ATBR does not create any new rights. The ATBR is only a way to identify possible gaps.

Facebook’s tax case and taxpayers’ rights dilemma

The Facebook, Inc., and Subsidiaries v. Internal Revenue Service, et al. (Case No. 17-CV-06490-LB) is a unique per se case with a dilemma whether the taxpayer is always bound to pay the allocated amount of tax. According to the IRS, Facebook failed to report and pay taxes on $7 billion in income overseas, while Facebook warned that the IRS prevails in its position. Facebook was fighting, citing the ITBR, to bring the case before the IRS Appeals board, which is an independent IRS office with a goal to resolve matters outside of court. Nevertheless, the case ended in the United States Tax Court.

And while the social media giant was denied its administrative right to appeal, both the U.S. government and Facebook have quoted the National Taxpayer Advocate to dismiss the case before the federal district court.

For ordinary taxpayers, it might be interesting to learn the developments of a taxpayer rights implementation when the question of the right to fair trial arises between a government and a multi-billion dollar company. The “one source – two opinions” approach to the right to appeal’s implementation highlighted the uncovered field of coordination and understanding of the tax bond beneficial nature.

Since laws – as commonly accepted rules and guidance introduced by the social institutions to govern behaviour – stipulate positive and negative obligations, there is a lack of clear adjustment of the both parties’ rights and obligations in administrative relations. In any case, a matter of political will with a pro-taxpayer law-oriented approach is an extremely important asset for a fair tax policy implementation and its further feasibility.

 

Quality service and “apology” payments for taxpayers in the United States

 

What is the legal remedy for taxpayers in case they do not receive a quality service from the IRS?

At the moment, there is no legal remedy as there is no present authority for making “apology” payments to taxpayers under U.S. law. However, the National Taxpayer Advocate, Ms. Nina Olson, believes that the ability to make a de minimis apology payment to taxpayers in situations where the taxpayer experiences excessive costs or undue burden due to gross mistreatment by the IRS is an important aspect of better taxpayer service.

Taking into account tax relations nature, any information regarding available legal remedies for taxpayers is crucial. In addition, an ability to receive compensation after a discontented relationship between the taxpayer the receiving revenue authority – e.g. a long waiting time for a contact center, no response or mistreatment, lack of information and miscommunication regarding tax rates and burdens – helps to identify other gaps in service, provides trust and confidence. For instance, the United Kingdom and Australia provide an apology payment in order to ensure the quality service to taxpayers. The relationship became similar to the service-oriented entities, where the government finally meets its taxpayers’ needs and expectations.

 

The United States whistle-blower program

The US whistle-blower program organised by the IRS returns to the detriment of taxpayer rights, violating the rights to be informed under the US Taxpayer Bill of Rights. The IRS can share the anonymous testimony from taxpayers with adverse parties – under section 6103(n) of the Internal Revenue Code – as part of written contracts between the IRS and whistle-blowers. However, despite the acknowledged procedures and willingness of taxpayers to share the information, it should be decided when they will be informed that they are the subject of whistle-blower investigation. According to the Senior Tax Counsel from Tax Analysts, it is especially difficult to fulfil the right to be informed when a case has documentation, audits, and evidentiary privileges issues.

 

The burden of proof in tax disputes and the right to a fair and just tax system

 

The burden of proof in tax disputes and the treatment of information reported through information exchange agreements differ from country to country. However, tax authorities give priority to preserving international cooperation before taking into consideration the demanding taxpayer rights.
In the European Union, implementation of the right to remedies in connection with finality and detrimental reliance suffers from the burden of proof – which is passed on the taxpayer – and has a form of an indictment and a predicate offense. Moreover, application of sui generis legal interpretation implies a rare possibility for taxpayers to protect their rights. This is an additional argument in favour of a legally binding European Taxpayer Bill of Rights and an International Taxpayer Bill of Right.

Respect for taxpayer rights should promote trust for the government and tax authorities and likewise, tax agencies should ensure:

  • Right to appeal,
  • Rights to privacy,
  • Right to a fair and just tax system.

This group of rights promotes inclusion of a right to expect tax system by considering every case’s facts, developments, and circumstances. In this regard, the concept of trust corresponds to the basic values in taxation – fairness, adequacy, simplicity, transparency, administrative ease – and is associated with voluntary compliance, including the right to be heard and the right to challenge decisions of tax authorities, having a transparent process as a whole.

Tax agencies and attorney advisors also consider decisive the problem of disproportionality in penalties linked to the taxpayers’ right to a fair and just tax system. The way relations are designed and implemented predicts possible information sharing developments and further penalties perceptions. Research, presented by a Professor at Vrije Universiteit Amsterdam, Mr. Jacco Wielhouwer, found a nonlinear relationship – a U-shaped development – between a taxpayer and revenue office when there is a distrust and, thus, social and psychological distance. The learning is explicitly relevant to the disputes on tax compliance.

 

Appeal rights and mutual assistance principle

 

The compared appeal rights in Canada, Spain, Mexico, Nigeria, Ghana, Kenya and South Africa confirm that tax law can afford no fair satisfaction. The wide variety in rights available to taxpayers in different countries, including access to mediation, administrative courts and judicial before and after assessments or paying the fair amount of tax depends on the way a national legal order operates in practice. An overview of tax behaviour classifies the understanding of subjective views based on experience in corporate taxation, dealing with procedural fairness, trust, and legal certainty. As practice shows, taxpayers and tax agencies have to maximise their mutual goals enhancing a cultural change in order to achieve mutually beneficial relations.

The process of mutual assistance, used by the governments to obtain bilateral or multilateral assistance in criminal investigations and prosecutions, confirms the monopolization of a situation by governments through the “information is power” approach. Moreover, according to the European Court of Justice case law, mutual assistance directive did not create an obligation on the requesting state or requested state to notify the taxpayer and allow the taxpayer to present their point of view at the time the information was requested.

 

Co-operative compliance: what is at stake for the large corporate taxpayers?

The most effective tool to prevent disputes is a cooperative compliance program, available however only to large business taxpayers with an aim to ensure a business fully taxes compliant. This alternative voluntary system appeared for the first time in Australia, Ireland, the Netherlands, the United Kingdom, and the United States. Since then, a significant number of revenue bodies have adopted cooperative compliance programs or similar ways of cooperation. The programs prevent disputes despite their complex, fragile and interpersonal-based character. Thus, protection of taxpayer rights by good governance means is delineated by an analysis of voluntary compliances while analysis of litigation is involving taxpayers and tax authorities, and depicts the availability of legal remedies.

The four biggest accounting firms that provide professional services networks in the world, offering audit, assurance services, taxation, management consulting, advisory, actuarial, corporate finance and legal services – Ernst & Young (EY), Deloitte, KPMG and PricewaterhouseCoopers (PwC) also known as “the big four” – constantly publish reports on the co-operative compliance situation. The big four, following the OECD reports, examine also some thoughts about the future direction of the co-operative compliance concept.

The situation with individual and small-sized businesses, as well as medium and big-sized businesses in the majority of countries, is different since they do not have access to an official co-operative compliance program. Therefore, taxpayer rights defenders should study more the policy decision-making process since tax policy creators have no information about how it affects taxpayers in the end. Tax law and regulation is complex and this can lead to unintentional errors. Amount of a small entity’s or an individual taxpayer’s losses is lower than a big company failed to pay taxes, however, lack of support and responsiveness to the main group of a state’s taxpayers is misleading reliability of the whole system.

The lack of a similar mechanism for the majority of taxpayers underlines the current state of the situation and raise interest in when the stakeholders will start to cooperate.

Current Developments in Taxpayer Rights

 

Current developments of taxpayer rights protection highlighted the lack of reasonable time management in administrative cases. In confronting with criminal and civil rights and obligations where everyone is entitled to a fair and public hearing within a reasonable time-period, administrative relations’ standards depend on the type of national legal system.

For example, some tax-related cases in Brazil last for ten to fifteen years before a final decision is taken. In general, apart from the costs related challenges and admissibility problems, a taxpayer has no legal remedies to address the injustice and violations. Therefore, one of the probable solutions, when a feeling of injustice is maximised, is non-violent protests and tax-related demonstrations.
Special attention should be given to the use of data to identify taxpayers at risk of financial distress and prevention of insolvency. Thus, a new Italian tax reform aims to identify symptoms of bankruptcy and obliges tax authorities to assess a strict vigilance of tax payment delays and notify companies in this regard. The reform has a future-focused approach, as per the national lawyers’ practice, leaving apart the daily taxpayer challenges and fears in correlation with economic and political developments and authoritative mightiness of the domestic tax authorities. Despite the struggle to confront the reality of their business activities failures, companies are unwillingly involved in the indebted machinery of the country. Italy has the co-operative compliance program, however, it is available only to the ten percent of companies, since the ninety percent of taxpayers are small and medium-sized companies. Therefore, in this situation, more attention should be given to the local tax agencies, their organizational structure, internal management improvement and the way they cooperate with taxpayers on a daily basis.

 

IBFD Observatory on the Protection of Taxpayer Rights (OPTR) and Supervisory Council mechanism

Council Mechanism within the IBFD

 

The third International Conference on Taxpayer Rights introduced a remarkable and unparalleled change for taxpayers. The IBFD Observatory on the Protection of Taxpayer Rights created a working database – Supervisory Council. The Council mechanism was established to monitor the current state of taxpayer rights around the world in order to raise awareness and show the linkage between human rights and taxation.

For many taxpayers, the Supervisory Council is more than an institutional platform within the bureau. While looking for remedies in order to protect their rights in both domestic and cross-border taxation, the mechanism is similar to the OECD mediation tool and it is the first stage of a long-term process to bring a modicum of justice to taxation.

The IBFD, which celebrated 80 years since its inception in 1938, also contributes to and participates in the work of various international and regional governmental organizations, including the United Nations, the International Chamber of Commerce (ICC) and International Fiscal Association (IFA). The latter, established in 1938, is the only non-sectoral and non-profit international organisation dealing with fiscal matters with an aim to advance the study of tax law.

 

The bottom line

 

IBFD-OECD co-operation

 

From a human rights defender’s point of view, autem, there is a tendency to highlight. For instance, the Organisation for Economic Co-operation and Development (OECD) as an official United Nations observer is acting to promote policies that will improve the economic and social well-being of people around the world. However, its collaboration with active, demanding and vibrant research environment in the field of taxation and taxpayers’ rights protection is very limited. For many years now, IBFD and the OECD have been co-operating on a wide range of tax issues. However, IBFD representatives and eminent taxpayer rights defenders are not deputising in a number of important – recent and upcoming – developments in the OECD’s international tax cooperation overview.

For instance, the OECD’s Centre for Tax Policy and Administration (CTPA), which holds OECD Tax Talks on monthly basis, G20 Summits, as well as in the Global Forum on tax transparency and exchange of information for tax purposes provide sustainable development in the field of taxation. However, as practice shows, these activities do not reach ordinary taxpayers and do not allow them to present their observations in terms of how taxes are collected, challenges in approaching tax authorities, and do not provide a platform to address the taxpayer rights violations, eventually connected to the structural violations of socio-economic rights. Thus, the OECD should enforce the existing mechanisms involving NGOs network, and more importantly reach out civil society and encourage them to address taxpayers’ rights violations.

The mentioned activities and events together would set out shared values, and demand rights for taxpayers that can be realised through structural, systemic, cultural and fiscal policy changes. An exhaustive and accurate record of all citizens’ contributions versus corresponded legal remedies and monitoring mechanisms of the tax expenditure will serve a basis for sound decisions in terms of fiscal and economic policies as well as politics, society, philosophy, and culture.

 

Taxpayer rights protection mechanism

 

In lieu of a developed international protection system for taxpayers, we are enjoying domestic and regional semi-mechanisms, putting on a scale, weighing whether positive outweighs the negative. A good example of a modern taxpayer rights protection tool is an American Taxpayer Bill of Rights.

Thus, despite the modern developments, the era of research in the field of taxpayers’ rights and a mechanism for their protection is only at its inception. Yet many government officials and public authorities struggle to provide a diligent and expert public authority oversight to confront the increased interest to taxpayers’ rights protection. Unfortunately, tax collectors are not ready for comprehensive cooperation with taxpayers, being taxpayers themselves. Therefore, altogether the taxpayers constantly overcome indirect pressure while collecting a sufficient amount of information in order to protect their rights, withal fighting to exercise their fundamental rights.

 

Having said the foregoing, every taxpayer is entitled to enjoy their rights and the human rights defenders community cannot stay silent about tax abuses. Both normative developments and empirical experience point to how human rights can shape tax policy. Tax reform is a process of changing the way contributions are collected or managed by the government and is usually undertaken to improve tax administration or to provide economic or social benefits, exerting commutations in favour of taxpayers and is gaining developments to benefit them. However, the actual quality-oriented changes are still ahead and all such national and international conferences serve as an outstanding multinational research platform, highlighting the latest challenges and providing solutions through dialogue exchange and further research.

 

Conclusion

 

The international taxpayer rights conferences are an out-and-outer place where prominent judges, advocates, and scholars discuss legal gaps in taxation, addressing taxpayers’ rights violations. The third International Taxpayer Rights Conference provided an overview of the current taxpayer violations and introduced leading solutions, based on dialogue and a common understanding of the importance of the good governance and availability of legal remedies. The lively discussions of tax reform sector play the “litmus test” in the public eye, calling for more awareness and overlapping research on the possible solutions for mistreated tax reality.

 

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Iryna Stepanova,

An ICO Research Fellow and taxpayer rights defender

 

Self-Determination, Trafficking of the Vulnerable Panel

Dr. Tanya Herring was at the 7th LAWASIA Family Law and Children’s Rights Conference, 6-8 June 2018 at Vientiane, Laos  with practitioners of law, children’s advocates, policy advisors, academics, judicial officers, and a multitude of non-government organisations from over ten Southeast Asian countries, Australia, Europe, and the USA.

 

Dr. Herring’s panel discussion focused on protection of populations seeking self-determination, who the United Nations High Commissioner for Refugees’ and the International Detention Coalition’s (Human Rights for detained refugees, asylum seekers, and migrants) 2016 publication, ‘Identifying and addressing vulnerability’, which identifies situations of two high vulnerability domains – 1) children and 2) those with protection needs: stateless, victims of trafficking in persons.

A person is said to be stateless when she or he is not recognized by any State as its national. Subsequently, no country has responsibility for them. Often forced displaced, trafficking in persons involves children and adults recruitment and coercion into slave-like conditions in the sex industry and domestic work (especially women, girls, and young boys), forced labor (especially young men and boys), as well as other areas of exploitation (including the harvesting of organs).   Forced marriage is also another primary area of exploitation.   According to the UNHCR, women, and girls especially face discrimination, exploitation, violence, and intimidation. The UNHCR further reiterates that the problem is prominent in all communities, including migrant and refugee communities. Though women and girls are primary targets, men and boys can also experience similar problems.

IMG_0354

 

The panel discussion was led by the Honorable John Pascoe AC CVO, who was appointed Chief Justice of the Family Court of Australia in 2017 (On the left, Dr. Herring is pictured with Honorable Pascoe). The Honorable Pascoe provided a riveting speech on the tragedies of exploitation and the challenges in prosecuting offenders.

 

 

 

Dr. Herring’s discourse began with self-determination, whereas ‘The inclusion of the right to self-determination is included in the International Covenants on Human Rights and in the Vienna Declaration and Programme of Action, which emphasizes that self-determination is an integral part of human rights law’ and has a universal application. Similarly, it is recognized that ‘compliance with the right of self-determination is a fundamental condition for the enjoyment of other human rights and fundamental freedoms, be they civil, political, economic, social or cultural’: https://www.cetim.ch/legacy/en/documents/bro12-auto1-A4-an.pdf

Many seeking these fundamental rights find themselves in situations of high vulnerability. Dr. Herring’s lecture began first with the stateless and displaced children by highlighting that they face great risks of neglect, abuse, and exploitation, and might have witnessed or experienced violent acts. Great prominence was placed on children, who are unaccompanied or separated from their families and face very serious risk of harm. International law responsibilities first centered on the UN Convention on the Rights of the Child (UNCRC). The region of focus, Southeast Asia, are all member states to the UNCRC. Specifically, Article 22 of the Convention provides the special protection needs of refugee children, which summarizes a range of state responsibilities.

Next, the focus was placed on indigenous and minority groups, who are often poor, underrepresented, marginalized, and experience denial of their fundamental rights and protections. The following link provides further insight into self-determination challenges faced by indigenous and minority groups: http://unpo.org/article/19671

A focal point of the presentation highlighted that many of the countries in Southeast Asia are not member states to the 1951 Refugee Convention, the 1954 Convention relating to the Status of Stateless Persons, or the 1961 Convention on the Reduction of Statelessness. As a result, there are gaps in protections for vulnerable groups seeking self-determination. Dr. Herring’s presentation proffers the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Sea, and Air, both supplementing the United Nations Convention against Transnational Organized Crime (the Palermo Convention) as an intervention legal framework. Using the countries represented at the conference as exemplary examples, Dr. Herring led the audience in an illustration of the UNODC’s case law database and domestic integration of these laws: https://www.unodc.org/cld/v3/sherloc/

IMG_0330In the following chart, Dr. Herring identified the member states ratification or accession to the Convention and Protocols. The lecture detailed specific articles of the Convention and Protocols and how the laws oblige protections to vulnerable populations, who would not otherwise have these protections against exploitations that include, but are not exhaustive of 1) awareness campaign brochures in multiple languages, 2) global evaluation of member state applications under the 3P-index (prevention measures, protection, and prosecution mechanisms) against human trafficking, 3) victim protections, guidance, and legal empowerment measures, and 4) obligations from governments to implement specific laws for the adoption of anti-trafficking laws and other relevant laws, the stringency of penalties, the level of law enforcement, and the collection of crime statistics.

The panel discussions were followed by a question and answer session. Representatives were able to grasp a better understanding of self-determination, human rights, and the obligated proffered legal framework for prevention and protections under the Palermo Convention and its supplemental Protocols that are unavailable for non-member states of the refugee and stateless conventions.

Tanya

 

 

 

Ninth Multidisciplinary Meeting on Indigenous Peoples

Nikoletta Pikramenou, ICO Research Fellow, participated as a speaker and represented the ICO at the Ninth Multidisciplinary Meeting on Indigenous Peoples at the University College Roosevelt in Middelburg, Netherlands (30 May-1 June 2018).

 

The conference aimed to contribute with a space for an intercultural encounter within and beyond the academic for participation, education, and inclusivity. Indigenous leaders, civil society members, academics and students discussed and searched redefinitions that are of concern such as rights of Nature, Indigenous peoples’ cultural heritage, climate change, Indigenous feminism, Indigenous languages, educational pluralism and Indigenous art-design, cinema and cultural property.

Midd
University College Roosevelt campus, Middleburg

Nikoletta presented an ICO research project that she is currently working on together with co-authors Grazia Redolfi and Rosario Grimá Algora on Indigenous women and self-determination titled “Raising voices for self-determination: Indigenous women in decision-making”. During her presentation, she explained how current Indigenous laws and practices on Indigenous women’s participation in decision-making are considered as “unfair to women” and often lead to their marginalisation and exclusion from negotiating tables. However, lessons from the past prove that engaging more Indigenous women in decision-making can safeguard Indigenous peoples’ and women’s rights including their right to self-determination. To address the intersectional issues that Indigenous peoples and women are subjected to and achieve historical justice, Indigenous female voices need to be heard at every level. When Indigenous women are made equal partners, Indigenous peoples’ right to self-determination will be eventually recognised and respected. Towards the end of the presentation, she mentioned that in 2017 she participated at the United Nations Permanent Forum on Indigenous Issues (UNPFII). During the forum, she noticed that even though Indigenous peoples have transformed from victims of international law to active participants in the international scene, there is a lack of disaggregated data. In relation to Indigenous women’s participation in decision-making, in particular, it is extremely hard to collect data. Therefore, she suggested that one of the main tasks of human rights academics and practitioners who work for the promotion of Indigenous rights is to focus more on the collection of disaggregated data.

 

Organised by Universitá degli Studi di Milano, University College Roosevelt, Ghent University, Universidad de Deusto, Max Plank Institute for Social Anthropology, EUR.AC research

 

Dr. Herring’s presentation to Secretary Hillary Clinton (October 2017)

Bangor University Law School at the renaming of Swansea University’s College of Law and Criminology to the Hillary Rodham Clinton School of Law

Dr. Tanya Herring, ICO Fellow and researcher Bangor University Law School at Swansea University, 14 October 2017, as the former US Secretary of State was awarded the degree of Doctor of Laws in recognition of her commitment to promoting the rights of families and children around the world, a commitment that is shared by Swansea University’s Observatory on the Human Rights of Children and Young People: http://www.swansea.ac.uk/media-centre/latest-news/hillaryrodhamclintonreceiveshonorarydoctoratefromswanseauniversity.php

Bangor University Law School and Swansea University are partner schools working collaboratively under the umbrella of the Wales Observatory on Youth and Human Rights.

Dr-Tanya-Herring-Greetings-with-Secretary-Hillary-Clinton-Swansea-University-Presentation-Oct-2017-3 As a result, Dr. Herring’s presentation to Secretary Clinton included her international criminal law research on refugees and the Bangor/Wales Observatory for Youth and Human Rights’ ‘Children Displaced across Borders’ research project in Southeast Asia’s Rohingya humanitarian crisis and her legal framework on interventions using the Palermo Protocols as a conduit to legal empowerment and peaceful self-determination.

 

“The Palermo Protocols and the stateless and force displaced children” at the Legal World Series

On 5th March 2018, ICO Research Fellow Tanya Herring made a presentation on “The Palermo Protocols and the stateless and force displaced children” at the Legal World Series – Africa and Asia. For more see Bangor Law School’s Legal World Series

 

This conference is a great experience for everyone who wants to gain more knowledge about the topics, to discuss and give their opinions or thoughts and to interact with others.

 

Part four Hungary: A 3-Country Scholarly Research on Achieving Peaceful Self-Determination through Legal Empowerment for Forced-Migrants, Displaced Persons, and Vulnerable Children

Part #4, Final 2017 Segment, Bangor University Law School and Wales Observatory for Youth and Human Rights – ‘Children Displaced Across Borders’ Project Hungary Field-research

Hungarian-Migration-Colloquium-Nov-2017-Dr-Tanya-Herring-6As a representative from Bangor University Law, Research Fellow with the International Communities Organization, and Researcher with Bangor/Swansea University’s Wales Observatory for Youth and Human Rights’ ‘Children Displaced Across Borders’ project, I completed my fourth and final 2017 field research in Belfast, Hungary. As a presenter with the European Migration Network National Contact Point Hungary XIX, National EMN Conference held in Budapest Hungary – November 2017, I led in panel one and joined in the additional three panels:

  1. Challenges of the changing migratory trends
  2. European responses to changing migratory trends (Part I)
  3. European responses to changing migratory trends (Part II)
  4. Developments in the field of return policy

Through the Hungarian Minister of Interior’s Department of European Cooperation, I had an opportunity to participate and to share my research using my critical-case study of the Rohingya population as an example of how state obligations to the ratified Palermo Protocols and the United Nations Convention on the Rights of the Child (UNCRC) requires specific prevention and protection measures for children displaced across borders – migrating and stateless. Moreover, my presentation encompassed how Hungary’s Schengen Border control responsibilities increase their encounters with border control and the prevention, protection, and prosecution (3-P index) responsibilities under their ratification of the Palermo Protocols, which also provides resources and transnational commitments. I prompted the Hungarian and EU leadership representatives to crucial elements of the Palermo Protocol and legal empowerment. I conveyed that much of the work needed to establish frameworks to fulfill the requirements have already been done and resourced at the international law level.

My work also promoted the then upcoming 16 November 2017 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) and the Committee on the Rights of the Child (CRC) that adopted two Joint General Comments, which include useful language clarifying treaty norms relating to childhood statelessness.

1) The first, ‘Joint General Comment No. 3 of the CMW and No. 22 of the CRC in the context of International Migration: General principles’ includes explicit references to statelessness as a basis of protection for children in such a context: http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/1_Global/CMW_C_GC_3_CRC_C_GC_22_8363_E.pdf

2) The other, ‘Joint General Comment No. 4 of the CMW and No. 23 of the CRC in the context of International Migration: http://www.refworld.org/docid/5a12942a2b.html Whereas, States parties’ obligations in particular with respect to countries of transit and destination’ goes into detail on the right to a nationality. Importantly for the realization of the right to a nationality in a migration context, it calls for the repeal of nationality laws that discriminate with regard to the transmission or acquisition of nationality in relation to not only the child and/or their parents’ race, ethnicity, religion, gender, disability, but also migration status. It goes on to state that States should ensure that every child’s right to a nationality is respected, protected and fulfilled, by implementing all nationality laws in a non-discriminatory manner, including with regard to residence status and reaffirms that States should strengthen measures to grant nationality to children born in their territory in situations where they would otherwise be stateless.

Photo depicts Dr. Herring presenting and seated at the panel with Hungarian Minister of Interior team and Russian representative. This field research further qualifies the legal premise that legal empowerment is the link to peaceful self-determination. Moreover, it illustrates how international legal instruments, the Palermo Protocol and the UNCRC, are vehicles to achieving peaceful self-determination.

Tanya-PhotographDr. Tanya Herring, ICO Research Fellow

Ph.D., Doctor of Management,  Doctor of Laws Candidate, International Criminal Law and Human Rights Bangor University Law School, Bangor, Wales UK and Researcher, Wales Observatory for Youth and Human Rights

E-mail: sop660@bangor.ac.uk

 

Part three Serbia: A 3-Country Scholarly Research on Achieving Peaceful Self-Determination through Legal Empowerment for Forced-Migrants, Displaced Persons, and Vulnerable Children

Part #3 Serbia: Bangor University Law School and Wales Observatory for Youth and Human Rights – ‘Children Displaced Across Borders’ Project Serbia Field-research

 During the Fall academic year in 2017, Human Rights and the United Nations Convention on the Rights of the Child (UNCRC) and its conduit to peaceful determination for children brought Dr. Tanya Herring from Bangor University Law School and the Wales Observatory for Youth and Human Rights’ ‘Children Displaced Across Borders’ project to Serbia. Depicted In the photograph, Dr. Herring stands with the Bangor University – Wales’ Observatory banner alongside Serbian teacher, Goran Zivanovic after an onsite visit at Tehnicka skola Valjevo (The Secondary School of Technical Education) in Serbia: http://www.tehnickaskolava.rs/ shown in the photograph above. Dr. Herring also had an opportunity to discuss with the UNCRC influence in schools with Serbian teacher, Slavoljub Djordjevic, from a Vuk Karadzic school, shown in the picture below:

Dr. Herring has followed the observation protocols of qualitative field research during both visits and identified a two-fold purpose. First, the research focused on investigating the implementation of the United Nations Convention for the Rights of the Child (UNCRC) in Serbian schools. Secondly, her socio-legal research on the Rohingya children in comparison to Roma children, who are also largely stateless, displaced, exiled, and vulnerable to human trafficking for her critical-case study. Conjunctively, Dr. Herring investigates Member States’ international law crime prevention and protection obligations under the Palermo Protocol for forced-displaced refugee and migrant children.   The outcomes of her study will result in a Model-of-Practice monograph for practitioners to aid in advocating for international prevention measures and protection measures against human trafficking and all forms of child exploitation. Additionally, under the second scope of the field-research, Dr. Herring seeks to gain a better understanding of how Member States can share best-practices and further support the UNCRC under the auspices of the Wales Observatory for Youth and Human Rights’ ‘Children Displaced across Borders’ project, which works collectively with a host of countries, institutions, and practitioners collaborators and partners across the globe (http://www.swansea.ac.uk/law/wales-observatory/).

The Children. Her field notes indicate both descriptive and reflective notes that denote Serbian schools have done an exceptional job of integrating the UNCRC through various modes, to include elective modules and day-to-day activities that extended to teachers, who attested to several integration efforts throughout the Serbian school system as a whole.   Reflections of the UNCRC’s presence can be seen in the very well-organized and equipped facilities with pleasant and extremely polite Serbian children, who are encouraged to grow, develop with guidance in accordance with each article of the UNCRC (http://www.tehnickaskolava.rs/).

However, Dr. Herring’s field-research also included investigating the Roma population’s issues of statelessness and school attendance. The field-notes in this instance reflected two-key issues that were prominent – Roma children begging and pandering during school hours and the administration of birth registration issues. In regard to birth registration, under Article 7 of the UN Convention on the Rights of the Child (“UNCRC”): ‘The child shall be registered immediately after birth…’ and contrasting Serbian national law brings challenges to a clear and precise process to birth registration process that historically has an adverse impact upon the exiled, stateless, and vulnerable children of populations, specifically in this instance the Roma. According to Serbian law on the manner of administering the birth registry books Article 23 states:

The registrar is obliged to register data in the register without delay.

Exceptionally, registration may be deferred in order to verify or ascertain the missing data to be entered in the register.

A separate record is kept of delayed registrations.

 

The subsequent text, Article 25 states:

 

If the data on birth or death is reported after the expiry of 30 days from the day of birth or death, the registrar may enter the data in the birth registry book only on the basis of the decision of the competent body.

 

The bolded language in the text of both Article 23 and 25 of Serbian law is ambiguous and can and has led to confusion and the exercise of discretion of the representative(s) providing the services, which is subjective and can be discriminatory. Moreover, Article 7, of the UNCRC encompasses no similar exception, and neither does Article 24 of the UN International Covenant on Civil and Political Rights (ICCPR), which contains a very similar right to immediate birth registration.

Field notes also reflect that Roma children are begging and pandering during school hours. Children, possibly as young as seven to ten years of age approached the researcher throughout the day, fluent in the Serbian language, begging. Also, postured in front of the wedding registrar’s office, the Roma, from a wide-range of age groups, appear to regularly pander by using musical instruments to play celebratory songs while couples and their families attempt to enter and exit the facility for weddings throughout the weekday and weekends. In this instance, there are also opportunities for Serbian authorities to strictly enforce laws that all children, of school age, are in school. Also, pandering and nuisance loitering, which observations indicate foster a high degree of animosity among the general population, can be curtailed by civil enforcement of associated laws, especially in the vicinity of public civil process buildings.

Solution-focused. There are a number of solutions that Serbian law can allow to eliminate discrimination and to clarify the law, which includes first striking the existing language and complying explicitly with the UNCRC and ICCPR. Secondly, at a minimum, improving the transparency of the process by placing prominently placed signage clarifying the process, campaigning to promote registration, and identifying processes to prevent delays ‘before’ the 30-day expiration after the day of birth or death. More importantly, providing layman’s language that identifies and presents the criteria and outlines the process used by the ‘decision of the competent body’ to register beyond the 30-day expiration period. There is voluminous data to support that forced displaced, shunned, exiled populations, and the vulnerability of their children hinders the capacity to ensure timely birth registration. UNICEF’s 2002 published works on Birth Registration lists a host of factors that adversely contribute to the delay and hindrance of birth registration, which includes examples of the birth registration administration process and laws as seen in Serbia: https://www.unicef-irc.org/publications/pdf/digest9e.pdf

However, field-research also indicated that the Roma populations, especially the children, remain largely detached from the general population in Serbia. Direct observations, unfortunately, reflect that begging and pandering appear to remain a tradition among the population of all ages, with children begging and pandering during school hours. Encounters among the streets of Serbia has led to conclusions that the Roma remain an exiled group and continue to face challenges in some of the basic processes that include birth registration and compliance with school attendance. Article 7 of the UN Convention on the Rights of the Child (“UNCRC”) states: ‘The child shall be registered immediately after birth…’

My research into the law shows that Article 23(2) of Serbia’s Law on Registries denotes: ‘The registrar is obliged to register data in the register without delay’. However, upon further review of Serbia’s Article 23(3): “Exceptionally, registration may be deferred in order to verify or ascertain the missing data to be entered in the register”. Subsequently, there is a lack of clarity on what defines a case as ‘exceptional’ or how long registration can be deferred. As a result, the field-research supports the comparator population hypothesis that Roma children are highly likely to be exploited, poor, and uneducated, which require Member States to exercise more prevention and protection measures from their respective ratified international law instruments targeted for this study – the UNCRC and the Palermo Protocols. This field research further qualifies the legal premise that legal empowerment is the link to peaceful self-determination.

 

 

Tanya-PhotographDr. Tanya Herring, ICO Research Fellow

Ph.D., Doctor of Management,  Doctor of Laws Candidate, International Criminal Law and Human Rights Bangor University Law School, Bangor, Wales UK and Researcher, Wales Observatory for Youth and Human Rights

E-mail: sop660@bangor.ac.uk

Part two Russia: A 3-Country Scholarly Research on Achieving Peaceful Self-Determination through Legal Empowerment for Forced-Migrants, Displaced Persons, and Vulnerable Children

Part #2: Moscow, Russia New Trends and Directions of Migration’

The second segment of this field-research series begins with the ‘New Trends and Directions of Migration’ as a colloquia held October 26-27, 2017 at the National Research University Higher School of Economics in Moscow, Russia. The simultaneous translation session speakers and discussants highlighted migration as a critical global phenomena with impacts on economic, political, social, and cultural processes, all of which leads to considerations for the adaptation of new practices in an array of venues.   (The captioned photo: National Research University Higher School of Economics, Moscow, Russia – 2017, ‘New Trends and Directions of Migration’)

A panoply of experts and scholars discussed issues on how to understand and react to migration on the local, national, and continental scales. Moreover, the miscellany comprised of the approaches, methods, and mechanisms needed to understand and support migrating groups that are the hallmark to the excerpt of the UN’s Charter, Chapter 1 Article 1, part 2, ‘… respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.’ Among the diverse interdisciplinary topics, issues of primary concern included transnational migration, religion and migration, and roundtable discussions problems of access to education for the children of migrants and their own adaption in schools. Each focal point can be construed as a concatenate to the United Nations’ conceptual perspective of self-determination and legal empowerment of the poor and eradication of poverty.

Using a formal invitation from the National Research University, I was able to obtain a humanitarian visa that allowed my participation in the colloquia is addressing challenges, incongruous reception of many migrants, and the acrimony in communities across Europe. Forum discourse centered on children of migrants and integration of migrants, as well as religion and migration. Speakers from the Hellenic Ministry of Education, Research and Religious Affairs, Bordeaux University, and Moscow State University (Lomonosov Moscow State University) presented case studies that addressed avenues to promote the adaptation of migrant children, inclusion measures, coupled with education policy and practices targeted toward children of immigrants.

Another phylum talking point from speakers included ‘Integration of Migrants’ with speakers from again Bordeaux University, France’ topic: ‘Integration Processes in Practice: Grassroots Organizations Helping Migrants in Bordeaux, Aarhus and Bilbao’; the School for Advanced Studies in the Social Sciences, Paris’ topic: ‘Social Ties and the Mystical Link. Religion’s Role in the Creation of Private Solidarities among Moldovan Immigrants in the Parisian Region’; the Northern Arctic Federal University and the University of Bologna’s topic: ‘Facing the Challenges of Migrants’ Integration and Adaptation in Italy and Russia: Networks of Intercultural Centres’; the Institute of Ethnology and Anthropology, Russian Academy of Sciences’ topic: ‘The Influence of Migration on Local Muslim Religious Organizations in the Moscow Region’.

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Case Study. The aim of my field-research presentation is to illustrate the Rohingya population in Southeast Asia as a critical case study, which yields the most information and theoretically has the most significant impact on knowledge development. The human rights viewpoint encompasses prevention and protection measures for forced-migrants, exiled, and vulnerable groups with the need for legal empowerment as a pathway to peaceful self-determination. The basis strongly relies on literature that shows refugee children meet the ‘vulnerable’ definition; subsequently these children are highly susceptible to all forms of exploitation during forced-displacement and Member States have an obligation to exercise extra protection measures.

As a single-critical case study, my research permits analytic generalization. Therefore, as a theory that follows the realms of medical science, whereas replicable (empirical) remedies applied to address the case study problems has a high propensity to work in similarly situated conditions of the critical case anywhere (geographically). This concept is metaphorically grounded in the plight of the Rohingya being patient-zero and the treatments, remedies within the rule of law, should be applied to the Rohingya situation and replicated in other analogous cognate situations throughout the globe. My field research further supports the premise that legal empowerment of the poor can be implicit as the process of systemic change through which the poor are protected and enabled to use the law to advance their rights and their interests as citizens and economic actors. The outcome of my research is structured to create an open-access human trafficking resource tool for practitioners to draw upon as active solution-oriented participants within the systemic change.

In recent news, Zeid Ra’ ad al-Hussein, the UN High Commissioner for Human Rights, compared the treatment of the Rohingyas to a ‘textbook example of ethnic cleanings’. With this example portrayed from the highest echelon of human rights, the atrocities that have been placed upon this population has been compared in the realm of international law. Conjunctively, I conveyed that the Responsibility to Protect (R2P) is a principle aimed at the protection of the world’s most vulnerable populations from the most heinous international crimes: genocide, war crimes, ethnic cleansing and crimes against humanity. There are similarly situated groups of exiled populations in Europe experiencing some of the same atrocities occurring in Southeast Asia. I ascribe that there are prescriptive measures within international law to protect these populations, especially the children.

Further, I ascribed that the origin of the R2P principle prepared by the International Commission on Intervention and State Sovereignty (ICISS) in 2001 entitled ‘A Responsibility to Protect’ focused on the responsibility of States to protect their own populations, but recognized that when a State was failing, or unwilling to protect its own people, then the international community had a responsibility to do so with conflict as a last resort. Subsequently, the accountability ties authorities to their populations and individual States to the international community. In the General Assembly Seventy-first session Agenda items 13 and 117, which is not a legal binding document in international law, the report outlines practical steps that can be taken by Member States, intergovernmental bodies and the United Nations system to strengthen accountability for the prevention of atrocity crimes that appear to formulate a nexus with forced-displaced migrants and their children. The Human Rights Council has adopted more than 20 resolutions that refer to the responsibility to protect. In 2016, it called upon all Member States to work to prevent potential situations that could result in atrocity crimes and, where relevant, to address the legacy of past atrocities to prevent recurrence. The forced migration plight of the Rohingya population has brought these issues to a surface that presents a broad surface application. Visually depicted, forced migration, statelessness, and human trafficking form a tripod of linked international law prevailing issues.

Currently, to address the many challenges around forced migration there are treaties and conventions that are ratified, well adopted among the sovereign states, and long-established, but with gaps still in some Member States, to include the 1951 Refugee Convention and the 1967 Protocol relating to Refugees, the 1954 Convention relating to the status of Stateless Persons, 1961 Convention on the Reduction of Statelessness, and the United Nations Convention on the Rights of the Child, among others. Statelessness and human trafficking are grave and widespread human rights problems which the international community is committed to tackling.

Unlike many other groups I address, many in the audience had never heard of the Palermo Protocols and definitely had no understanding of the Responsibility to Protect (R2P) or Responsibility to Prevent (R2Prev) principles. Similarly, no one in the audience shared that they had prior knowledge that Russia had ratified the Palermo Protocol.   I aver the international legal framework approach is to gainfully employ the laws surrounding human trafficking that are articulated mainly and outlined in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention Against Transnational Organized Crime (the “Protocol”). The Protocol takes a three-pronged approach to trafficking, known as the ‘3- Ps’: (1) criminalizing and ‘P’rosecuting the act of trafficking, (2) trafficking ‘P’revention programs and (3) aid (or ‘P’rotection) for victims of trafficking. Member States have an opportunity to optimize the use of resources for aid and prevention, primarily by focusing on the criminalization mechanisms to aid in deterring human trafficking.

The principal claim of my presentation is that legal empowerment is rooted in a human rights-based approach to development, which recognizes that poverty results from disempowerment, exclusion, and discrimination. Modern international law, which is often referred to as a jus cogens rule, is a cardinal principle of self-determination and the right to freely choose their own sovereignty and international political status without interference. The Rohingya, unlike other similarly situated isolated groups have similar general characteristics: poor, uneducated, experience forced-displacement, and experience a high propensity to the vulnerability of atrocities as they seek self-determination. As such, States Parties to the Protocol have a transnational duty to prevent human trafficking, and under the Protocol, Member States have a shared responsibility, and this responsibility extends past national borders.

With the Rohingya population’s constant presence in the news, my feedback and inquiries centered on remedies and resolved. I encouraged eastern Europeans to relate the Rohingyas to similarly situated isolated populations in our geographical area. The dual-prong takeaways to the audience from my field-research are to 1) promote the State’s responsibility to‘P’’revent and ‘P’rotect against atrocities and 2) Legal empowerment can and should be used as a pathway to the UN’s concept of self-determination.

Tanya-PhotographDr. Tanya Herring, ICO Research Fellow

Ph.D., Doctor of Management,  Doctor of Laws Candidate, International Criminal Law and Human Rights Bangor University Law School, Bangor, Wales UK and Researcher, Wales Observatory for Youth and Human Rights

E-mail: sop660@bangor.ac.uk

 

Part one: A 3-Country Scholarly Research on Achieving Peaceful Self-Determination through Legal Empowerment for Forced-Migrants, Displaced Persons, and Vulnerable Children/ Russia, Serbia, and Hungary

The Context. As a research fellow, I approach the study of human rights and forced migration as a multidisciplinary, international, and multi-sectoral practice that incorporates academic, practitioner, agency and local perspectives. The aim of the study is to develop a Model-of-Practice monograph that illustrates and promotes little known international laws for the protection and prevention of human rights abuses, namely human trafficking, of forced-displaced migrants and refugees, with an emphasis on child rights.

Geographically, as a contributor to international institutional migration colloquiums and child rights empowerment projects under the umbrella of Bangor University Law School and Swansea University’s Wales Observatory for Youth and Human Rights’ ‘Children Displaced Across Borders’, my field research centered on three eastern European countries and cities – Moscow, Russia; Belgrade, Serbia; and Belfast, Hungary (captioned photograph: National Research University Higher School of Economics, Moscow, Russia – 2017, ‘New Trends and Directions of Migration’, standing with the Bangor University’s Wales Observatory for Youth and Human Rights banner, http://www.swansea.ac.uk/law/wales-observatory/).

National-Research-University-Higher-School-of-Economics-Moscow-RussiaIn recent months and years, these countries have directed substantial resources and forums in earnest efforts to address migrant populations and a myriad of concerns that are foundationally linked to peaceful self-determination and legal empowerment. I was fortunate to be invited as a scholar-practitioner, whereas I saw my role was to present and encourage advocates and institutional partners to examine the international law and follow the archetypal procedures, policies, and guidelines that provide protections and can subsequently promote both United Nations concepts – self-determination and legal empowerment.

As forced migrants, refugees, and displaced persons are the demographic focus of this research, the group is reflective of those highly susceptible to denial of universal respect and observance of their respective human rights. In relation to peaceful self-determination through legal empowerment, I focus on three separate, although sometimes simultaneous and inter-related, types of forced migration populations. The literature identifies the three types by category according to their causal factors: conflict, development policies and projects, and disasters. Irrespective of the type of forced migrant, children are inevitably often the collateral recipient of the hurt, harm, and danger. It is during these migration journeys, by land and sea, where reports show that human rights violations occur, the tenets of peaceful self-determination blur, and the need for legal empowerment become more prevalent.

Initial discussion warrants clarity on the adopted meaning of ‘forced migration’ promoted by the International Association for the Study of Forced Migration (IASFM), which describes it as ‘a general term that refers to the movements of refugees and internally displaced people (those displaced by conflicts) as well as people displaced by natural or environmental disasters, chemical or nuclear disasters, famine, or development projects.’ More inclusively in this group, this targeted regional research specifically focuses on vulnerable children, where children are subjected to violence, are in the midst of armed conflict, without birth registration and declared stateless, engaged in forced labour, engaged in a child-marriage, without parental care, used for commercial sexual exploitation, and female children subjected to genital mutilation / cutting, trafficked, and exploited children.

The issues of forced displacement and migration are wide-ranging and present a complex set of phenomena compounded by perils and a host of surrounding issues impacting governments and citizens alike across the globe. The imagery of ineffable suffering and denial of human rights are no longer esoteric as in generations past with incidents spread by word-of-mouth. Instead, today, the internet and television broadcast real-time tragedies of the forced-displaced with no affirmed root-cause remedies identified. As a result, questions abound on the ‘why’ and ‘what’ can be done. My research approach focuses on a state obligation framework to address these issues. Many human rights treaties impose a duty on States Parties to try and prevent human rights abuses inherent. This obligation is measured with a ‘due diligence’ standard. It is commonly recognized in international law that Member States have a duty to prevent violence against women and children, regardless of whether those acts are perpetrated by a State or by private persons. However, the extent of this duty is ambiguous and is contained mostly in soft law. The responsibility to discharge due diligence obligations to prevent violence against women and children, including trafficking, has primarily been discharged by the adoption of legislation by States and the development of awareness-raising campaigns for specified professional groups.

My research postures that legal empowerment is emblematic of peaceful self-determination through activities that focus on promoting awareness and enforcement of existing international law. The legal premise is that the protections that promote the rights to self-determination and the right for people to determine their own destiny lies within the scope of international laws that have already been ratified by many countries. As such, a plausible interpretation is that the right to self-determination is recognized in international law as a right of process belonging to the individual person and not to states or governments.

Legal empowerment benefits the disadvantaged, which involves optimizing and exercising community-based justice services, such as paralegals, alternative dispute mechanisms, street, and mobile courts more commonly referred to as street-law. These efforts tend to be readily accessible and generally accepted in communities across the globe. More importantly, research denotes that these activities have the capacity to address the needs of the poor and vulnerable. These mechanisms have proven to empower people in protecting their rights, pursuing their economic interests and demanding accountable and responsive governance from public institutions. Unquestionably, the incongruous elements of forced displacement and migration enhance the subterfuge that vulnerable groups experience in their journeys and quest for survival and freedoms.

International Law Framework. Framed upon the strands of hard law, I look to a self-evident proposition that a Member State has an obligation to prevent crime and protect forced-displaced vulnerable groups on both land and sea. Intuitively, I promote to scholars, advocates, and institutional partners that pining for new laws to ensure theopathic freedoms and positive liberty is a redundant and often a futile process. The inference is that law reform is based upon the ‘administration’ of existing policies, practices, and application of the law. Subsequently, I propose that the attention should be redirected to current state obligations, protections, and the febrile associated with the abuse that hinders and adversely impacts the capacity of vulnerable groups, such as those in forced displaced and migration status, to achieve desired freedoms and liberty.

The hard law syllogism hinges upon the Palermo Protocols, which stands as an effigy. Though the Anti-trafficking Protocol is fundamentally a human rights treaty, there is a distinct difference from other human rights treaties in that a violation has the capacity to address a transnational crime criminally. More importantly, the Charter of the United Nations includes an obligation to promote universal respect and observance of human rights. The Palermo Protocols are essential as they provide binding and essential protections, especially to vulnerable groups, and outlines an array of measures that address violations. The three protocols were adopted by the United Nations to supplement the 2000 Convention against Transnational Organized Crime (the Palermo Convention). Research across a broad spectrum of resources denotes that a nexus exists between deprivation of human rights in the areas of forced labor and transnational crime that can be manifested by the lack of peaceful self-determination.

Similarly, research by the United Nations General Assembly resolution 63/142, 11 December 2008, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/63/142, supports that legal empowerment for the poor allows the law to work for everyone. The report details how impoverished, exiled, and highly vulnerable populations are highly subjected to abuses that are prohibited under the Palermo Protocols. Therefore, target populations can be recipients of the prevention, protection, and prosecution mechanisms afforded to Member States – legal empowerment. Under the auspices of the protocols, member states can receive technical assistance to develop tools that support implementing the United Nations standards and norms. Resource guides are available for use in English, French, Spanish, Arabic, Chinese, and Russian. Specifically, paragraph 9(4) of the Protocol requires,

‘States Parties to take or strengthen measures including through bilateral and multilateral cooperation, to alleviate the factors that make persons, especially women and children, vulnerable to trafficking, such as poverty, underdevelopment and lack of equal opportunity.’

The protocol obliges Member States to uphold the three objectives. ‘Preventing’ the crime of human trafficking – Palermo Protocol Article 9 requires States Parties to establish “comprehensive policies” to prevent trafficking and adopt or strengthen measures to reduce demand that fosters exploitation. ‘Protecting’ the victims – Palermo Protocol Articles 6 and 7 call on States Parties to adopt specific measures for victim recovery and to consider adopting measures to allow victims to remain in the country’s territory in appropriate cases; ensures that a ‘government makes serious and sustained efforts to eliminate trafficking – measures the strength of countries’ victim protection efforts, including whether legal alternatives to removal exist’, according to the 2016 Trafficking in Persons Report. ‘Prosecuting’ traffickers – Article 5 of the Protocol requires that States Parties criminalize ‘trafficking in persons,’ as defined by the Protocol. In          addition, Article 11 of the UN Convention against Transnational Organized Crime, which applies to the provision of the Palermo Protocol mutatis mutandi, requires that ‘State Parties ensure that criminal sanctions for trafficking in persons take into account the gravity of the offense’; also, there are established standards that measure countries’ punishments for trafficking. Article 5 of the Protocols takes on the role of vertical enforcement, and my research tethers the States Parties’ obligations with the preventive pillars of the Responsibility to Protect. (R2P) and the Responsibility to Prevent (R2Prev).

Equally, as critical, the Protocols direct States Parties to establish comprehensive policies to prevent and combat trafficking as well as protect victims of trafficking from re-victimization. With these provisions, States Parties must endeavor to conduct mass media campaigns and other social and economic measures to prevent trafficking within their borders. They must also establish policies to cooperate with non-governmental organizations and other civil society groups. Equally as important, the Protocol indicates that States Parties are ‘obliged to adopt or strengthen educational, social or cultural measures to discourage the demand that fosters human trafficking.’ My research links each element of Article 9, paras 1, 2, 3, and 5 as an embodiment of how legal empowerment can foster development by strengthening and empowering the voices of women and children, facing multiple and intersecting grounds of exclusion and protection measures.

Throughout my three-country field-research, the study follows the international law accepted definitions of human trafficking and others such as stateless, refugee, forced-displacement and migration that are provided within the scope of international law. The research also addresses the United Nations Convention on the Rights of the Child (UNCRC), the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). I reiterate the need for an expanded and global ratification of the Palermo Protocols as an international law ‘conjunctive partner’ to other aforementioned existing laws to protect and prevent the many harms and atrocities of populations forced-displaced. As of September 2017, one or more of the Palermo Protocols have been ratified by 170 parties, and only 20 countries have not ratified. Each of the three countries within the scope of this field research, Russia, Serbia, and Hungary, has ratified the Palermo Protocol. I invite readers to join me in recapturing my Fall 2017 field-research experiences.

Tanya-PhotographDr. Tanya Herring, ICO Research Fellow

Ph.D., Doctor of Management,  Doctor of Laws Candidate, International Criminal Law and Human Rights Bangor University Law School, Bangor, Wales UK and Researcher, Wales Observatory for Youth and Human Rights

E-mail: sop660@bangor.ac.uk

 

International Taxation & Human Rights

We are proud and happy to announce that an article written by Iryna Stepanova, an ICO FELLOW 2017, is published by  Skattenytt (Journal). Iryna is a member of the ICO Fellowship Programme where she research a model for future EU Taxation Convention.

Title: International taxation and human rights

Author: Iryna Stepanova

Published by: Skattenytt (Journal), Number 10, 2017

Abstract: 

This article is a summary of the author’s master’s thesis on “European double taxation and human rights in a globalised world”[1] and in the line of the previous research, it focuses on the European level of taxpayers’ rights protection. The article address the right to privacy and exchange of information, right to property and non-discrimination, as well as the problem of double taxation and the right to a fair trial on tax matters. Thus, on the basis of the European case law, the article highlights taxpayers’ rights violations and indicates the necessity to design an International taxpayer bill of rights and establish an International tax court.

[1] Stepanova I., European double taxation conventions and human rights in a globalized world. 2016. Available at: https://ssrn.com/abstract=2996112

To read full article, download the pdf. IntTax&HR_Stepanova_Skattenytt_10_2017