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112 Kamatali, supra note 96, at 236.
113 Philip G. Auston is the John Norton Pomeroy Professor of Law at NYU Law.
He teaches international law, human rights law, economic and social rights, and strategic human rights litigation at NYU Law. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Philip G. Alston, NYU L., https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid= 2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 65 “get away” with human rights violations because the non-state group is “not-a-state.”114 Hence, the strict distinction between state and non-state actors makes accountability for human rights violations virtually impossible and begs the question, if rebel groups are not bound by international human rights treaties, who can hold them accountable? | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Because the actions of Boko Haram and similar groups show that, at the most basic level, they do not value human life, why would they value education and respect human rights law?
Therefore, countries must enact domestic laws to protect a child’s right to education, which will continue to remain under attack in today’s non-state-actor dominated warfare. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
V. Cultural Legitimacy and the Right to Education The colonization of Africa by European powers during the nineteenth century left the continent with a racially stratified, subpar education system that has yet to be completely erased.115 Under British rule in Nigeria, only 3.4 percent of the colonial tax in 1935 was spent on education, which ushered in a century of limited educational funding and disparities that still hinder progress in the nation today.116 The colonial relationship, “predicated on presumed African inferiority,” silenced “African history, knowledge, and autonomy” through forced assimilation and a requirement that African people only use colonial languages.117 Colonial education stressed disempowerment and subjugation to stifle all resistance by the African people and, as a result, conversing in indigenous languages continues to be banned in most African schools.118 Children in many African societies do not speak the language of school instruction at home, which creates a dissonance between individual students and their culture and society at large.119 Therefore, for the right to education to be fully realized in many African societies, indigenous knowledge must not be suppressed, but prized for its unique ability to improve global agriculture, 19742 [https://perma.cc/3YUV-7NTU] (last visited Sept. 7, 2020). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
114 Kamatali, supra note 96, at 236.
115 Adebisi, supra note 40, at 434.
116 Id.
at 443.
117 Id.
at 435.
118 Id.
at 443–45.
119 Id.
at 445–46.
66 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
XLVI ecology, medicine, and the arts.120 Culture must be at the heart of the right to education, so that colonial constructions of “otherness” and inferiority do not continue to be perpetuated in the education system.121 Additionally, the realization of the right to education depends largely “on the level of cultural legitimacy accorded to children’s rights norms” in Africa.122 The conception of childhood in much of Africa diverges from Western societies and the right to education must be domesticized and “targeted at development based on African realities” to promote local ownership.123 Accordingly, the right to education in Africa must be tailored to each nation’s history with structural adjustment programs that address colonialism, civil wars, and deeply rooted cultural norms — and not be based on Western ideals. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
The right to education must be implemented in Africa “without killing the African soul.”124 The lived realities of many children in Africa differ drastically from the global experience.125 For instance, a global consensus has eliminated the most egregious forms of child labor worldwide, but in Africa, children often have to work for family survival.126 In Article 31 of the African Charter on the Rights and Welfare of the Child, a child’s responsibility includes “work[ing] for the cohesion of the family” and “provid[ing] assistance in case of need.”127 Hence, to accurately reflect African social norms, “learn and earn”128 approaches to education must be tolerated to ensure that children do not drop out of the education system forever.129 Some education is better than no education, especially during times of insurgency. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Moving forward, international humanitarian law should treat the right to education as a “genuinely African right with 120 Adebisi, supra note 4040, at 445.
121 Id.
at 442.
122 Beiter, supra note 41, at 29.
123 Id.
at 30.
124 Adebisi, supra note 40, at 442.
125 Beiter, supra note 41, at 30.
126 Id.
127 African Youth Charter, supra note 83, art.
31.
128 “Learn and earn” approaches to education refer to policies that allow child labor so long as it does not jeopardize a child’s right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
See Beiter, supra note 41, at 31–32.
129 Id.
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 67 which Africans can identify” to overcome the bleak reality that sub- Saharan Africa may not achieve universal completion of primary education until 2080.130 VI. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Education Within the Domestic Legal Frameworks in Nigeria International humanitarian law treats schools as protected civilian objects that “benefit from the humanitarian principles of distinction and proportionality.”131 But until countries make the right to education justiciable, the right will never be fully realized for millions of children caught in the crossfire of widespread insurgency. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
For rebel groups not bound by the principles of distinction and proportionality, attacks on education effectively de- stabilize civil society and destroy the “hopes and ambitions of a whole generation of children.”132 In Nigeria, Boko Haram and its security forces destroyed roughly 1,500 schools between January 2014 and December 2016, killing 1,280 teachers and students.133 With 57 percent of schools in the Borno state of Nigeria closed as of September 2017, almost 3 million children in northeastern Nigeria lacked access to education.134 While rebel groups remain mostly to blame for denying children their right to education during armed conflict, the government of Nigeria is not entirely innocent.135 The Nigerian constitution protects the “security and welfare of the people,” but Section 12 of the Constitution effectively prohibits the translation of international law into domestic law by “provid[ing] that no treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.”136 Although Nigeria is a party to several international human rights 130 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
at 32, 40.
131 Attacks on Schools and Hospitals, U.N., https://childrenandarmedconflict.un.org/six-grave-violations/attacks-against-schools/ [https://perma.cc/6TR3-77A2] (last visited Oct. 10, 2020).
132 Bakare, supra note 4, at 158.
133 EDUCATION UNDER ATTACK, supra note 28, at 177.
134 Id.
135 Id.
136 Ogunde, supra note 29; CONSTITUTION OF NIGERIA (1979), § 12.
68 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
68 N.C. J. INT'L L. [Vol.
XLVI treaties that guarantee the right to basic education,137 with the “provisions of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
incorporated into the [Nigeria] Child’s Rights Act of 2003[,]”138 the African Charter on Human and Peoples’ Rights remains the only treaty incorporated into domestic law.139 Despite the African Charter being binding on Nigeria, the Nigerian Supreme Court140 has consistently held that “the provisions of the African Charter are not superior to the Constitution.”141 The right to free education in section 18(3)(a) of the Nigerian Constitution is unenforceable, like all other rights provided for in Chapter 2 of the Constitution.142 Thus, the child’s right to education, which is justiciable under the African Charter, but not under the Nigerian Constitution, “cannot hold in the light of the inconsistency rule”143 in Section 1(3) of the Nigerian Constitution.144 The Economic Community of West African States Community Court of Justice reaffirmed this position in SERAP v. Nigeria145 by holding that the federal government of Nigeria did not deny over five million children the right to education when it 137 These international instruments include the International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and Peoples’ Rights, the Convention on the Rights of the Child, and the African Charter on the Rights and Welfare of the Child. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Aisosa Jennifer Isokpan & Ebenezer Durojaye, The Child’s Right to Basic Education in Nigeria: A Commentary on the Decision in SERAP v. Nigeria, 26 AFR.
J. INT’L & COMP.
L. 639, 639 (2018).
138 Id.
139 Ogunde, supra note 29.
140 See Isokpan & Durojaye, supra note 7, at 642 (discussing Abacha v. Fawehinmi).
141 Id.
at 643.
142 Court Declares Free, Compulsory Basic Education an Enforceable Right, PUNCH (Mar. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
1, 2017), https://punchng.com/court-declares-free-compulsory-basic-education-an- enforceable-right/ [https://perma.cc/3NUN-FEAU].
143 Isokpan & Durojaye, supra note 137, at 643 (“Section 1(3) of the CFRN [Constitution of the Federal Republic of Nigeria] 1999 provides that if any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other law shall to the extent of its inconsistency be void.”).
144 Id.
145 Registered Tr.
of the Socio-economic Rts. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
145 Registered Tr.
of the Socio-economic Rts.
and Accountability Project (SAREP) v. Fed.
Republic of Nigeria and Universal Basic Education Commission (UBEC), ECW/CCJ/JUD/07/10, Community Court of Justice of the Economic Community of West African States [ECOWAS Court of Justice] (Nov. 30, 2010); Isokpan & Durojaye, supra note 137, at 640. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 69 misappropriated funds originally allocated to ten states in Nigeria.146 Although the Court acknowledged that “embezzling, stealing or even mismanagement of funds meant for the education sector will have a negative impact on education,” this action did not “amount to a denial of the right to education” because the government’s duty to provide education stops at the allocation of funds.147 As a result of SERAP, the “justiciability of, as well as the obligation of the Nigerian government towards the realization of the child’s right to basic education” remains, at minimum, unsatisfactory.148 With Nigerian government security forces occupying dozens of schools for military purposes between 2013 and 2016 and using these schools as detention or killing centers between,149 the government, in addition to Boko Haram, continues to deny children their right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Even though international and regional human rights instruments protect this right, the right to education cannot be fully realized in armed conflict until the right is made justiciable under the Nigerian Constitution.150 But with widespread corruption at the national level,151 increasing intervention at the international level may be a viable option for protecting children’s right to education during armed conflict.
VII. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
VII.
Mechanisms That Hold Non-State Actors Accountable for Human Rights Violations The failure to implement international treaties that protect a child’s right to education via Nigerian domestic law suggests that overhauling international law may be just one solution among many to protect children’s right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
International criminal law remains a practical solution to hold armed groups, specifically the members of armed terrorist groups, accountable for violating a this right during armed conflict.152 The ICC’s jurisdiction over crimes 146 Isokpan & Durojaye, supra note 137, at 646.
147 Id.
at 643.
148 Id.
at 640.
149 EDUCATION UNDER ATTACK, supra note 28, at 181–82.
150 Isokpan & Durojaye, supra note 137, at 646. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
150 Isokpan & Durojaye, supra note 137, at 646.
151 The Special Board of Inquiry cleared “senior military officers of human rights crimes under international law in a report unavailable to the public and Nigerian officials holding mass trials for Boko Haram suspects in secret.” Africa 2019, AMNESTY INT’L, https://www.amnesty.org/en/countries/africa/report-africa/ [https://perma.cc/KRU4- 9UN7] (last visited Oct. 10, 2020).
152 Kamatali, supra note 96, at 236.
70 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
70 N.C. J. INT'L L. [Vol.
XLVI vis-à-vis the Rome Statute allows “individual criminal liability [to be imposed] upon those who commit international crimes,” which include war crimes and crimes against humanity.153 Under Article 8(2)(e)(iv) of the Rome Statute, it is a war crime to “intentionally direct attacks against buildings dedicated to .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
education.”154 Although the Rome Statute only holds individuals of a State Party accountable, Nigeria is a party to the Rome Statute,155 and therefore, the ICC can charge individual members of Boko Haram with war crimes.156 Between 2009 and 2019, the Office of the ICC Prosecutor identified ten potential cases of war crimes and crimes against humanity related to the conflict between Boko Haram and Nigerian Security Forces (“NSF”).157 Seven potential cases concerning members of Boko Haram include targeted attacks against education (including schools, teachers, and schoolchildren) and the civilian population (including attacks against girls and women), recruitment and use of children to participate in hostilities, and attacks against personnel or objects involved in humanitarian assistance.158 Likewise, three potential cases concerning the NSF include recruitment and use of children to participate in hostilities, attacks against the civilian population and killings, torture, or ill-treatment of military aged males suspected to be Boko Haram members or supporters in northeast Nigeria.159 The ICC was not designed as a substitute for national courts or to override the authority of signatory countries.160 Therefore, the ICC typically only exercises its prosecutorial authority when states are “unable or unwilling genuinely to carry out an investigation and 153 Bakare, supra note 4, at 166; Rome Statute of the International Criminal Court, July 1, 2002, art. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
5, 2187 U.N.T.S.
90.
154 Rome Statute of the International Criminal Court, supra note 1533, art.
8(2)(e)(iv); Bakare, supra note 4, at 153.
155 Rome Statute of the International Criminal Court, supra note 1533, at 600.
156 Bakare, supra note 4, at 166–67.
157 INT’L CRIM.
CT. OFF.
OF PROSECUTOR, REPORT ON PRELIMINARY EXAMINATION ACTIVITIES 2019 47 (2019), https://www.icc-cpi.int/itemsDocuments/191205-rep-otp- PE.pdf [https://perma.cc/5W4Q-KPT2] [hereinafter ICC PROSECUTOR REPORT] 158 Id.
at 50. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
at 50.
159 Id.
160 INT’L CRIM.
CT., UNDERSTANDING THE INTERNATIONAL CRIMINAL COURT 1 (2013), https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf [https://perma.cc/9CW8-SC8W]. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 71 prosecute the perpetrators.”161 However, the Office of the Prosecutor may initiate an investigation without state approval if the ICC has proper jurisdiction.162 In the case of Nigeria, the government has failed to engage in any investigative and prosecutorial activities with respect to the identified abuses and the “repeated commitment of the Nigerian authorities to provide the Office with relevant information .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
.
.
has not materialized.”163 Henceforth, with regard to protecting a child’s right to education, the Office of the Prosecutor may have to assume the primary responsibility of the Nigerian state to prosecute leaders and members of Boko Haram and NSF who have committed war crimes.164 Although the ICC “focus[es] its investigations and prosecutions on those who .
.
. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
.
.
bear the greatest responsibility for such crimes,”165 prosecution of top terrorist leaders will send a strong message to other members that “intentionally directing attacks against buildings dedicated to education”166 will not be tolerated by the international community.
Holding individuals accountable through the ICC is not without drawbacks. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Three out of the five permanent members of the UN Security Council, including the United States, are not party to the ICC.167 Therefore, the lack of support from the United States threatens the legitimacy of the institution because the ICC has not “seem[ed] to have prevented potential criminals from being violent” and its work “is not guaranteed to deter criminals.”168 Moreover, trying a member of a terrorist group after a conflict may even incite further violence and attacks on education, while wasting time the ICC could use to prosecute individuals committing more heinous crimes.169 Nonetheless, an ICC indictment provides some recourse 161 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
162 Id.
at 4 (discussing how the ICC has jurisdiction for the crimes specifically enumerated in the Rome Statute).
163 ICC PROSECUTOR REPORT, supra note 157, at 52.
164 Id.
at 52.
165 INT’L CRIM.
CT., supra note 160, at 17.
166 The ICC considers “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments or hospitals” to be a war crime that falls within the court’s jurisdiction.
Id.
at 14. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Id.
at 14.
167 Catherine Gegout, The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 THIRD WORLD Q.
800, 803 (2013).
168 Id.
at 803–10.
169 Id.
at 810.
72 N.C. J. INT'L L. [Vol.
XLVI for the millions of children denied their right to education by cutting off the blood supply to terrorist groups dependent on high-profile leaders for success. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
In addition, the UN, pursuant to General Resolution 1612 (2005), has established a “systemized method of gathering data on violations of the rights of children” that creates a starting point to rectify the wrongs committed by non-state terrorist groups.170 The Monitoring and Reporting Mechanism (“MRM”) requires information to be reported on six grave violations committed against children in times of armed conflict including,171 (1) killing and maiming of children; (2) recruitment and use of children by armed forces and armed groups; (3) sexual violence against children; (4) attacks against schools or hospitals; (5) abduction of children; and (6) denial of humanitarian access for children.172 While it is clear that the Nigerian government has failed to ensure that children do not participate in the hostilities,173 in July 2014 the UN indicted Boko Haram for two such grave violations: the killing and maiming of children, and attacks on schools and hospitals.174 In response, the UN formally established a country-specific MRM task force on “children affected by armed conflict to monitor and report on violations of the rights of children in Nigeria.”175 Although ongoing violence has restricted access to conflict areas to report such violations, the UN, unlike the Nigerian government, has not turned a blind eye to the children who specifically need their right to education protected during armed conflict.176 VIII. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Conclusion In the twenty-first century, “new wars,” or “internal armed conflicts waged primarily by non-state actors” who use small arms and target civilians, have increased significantly in the international 170 Isokpan & Durojaye, supra note 20, at 15.
171 S.C. Res.
1612, ¶ 12 (July 26, 2005).
172 S.C. Res.
1539, ¶ 10 (Apr.
22, 2004). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
172 S.C. Res.
1539, ¶ 10 (Apr.
22, 2004).
173 The Civilian Joint Task Force, which the Office of the Prosecutor considers to be under the umbrella of the Nigerian Security Forces, committed the war crime of “conscripting and enlisting children under the age of fifteen years into armed groups and using them to participate actively in hostilities pursuant to article 8(2)(e)(vii) of the [Rome] Statute.” See ICC PROSECUTOR REPORT, supra note 157, at 50.
174 Isokpan & Durojaye, supra note 20, at 15.
175 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
175 Id.
at 15–16.
176 Id.
at 16. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 73 arena.177 Most conflicts today are neither state-centered nor operate within the boundaries of one country.178 As of 2018, roughly four times as many Sunni Islamic militants operated around the world than on September 11, 2001, demonstrating the ever-increasing prevalence of this type of warfare.179 Despite the changing nature of global conflict, international human rights law remains reluctant to adapt existing international frameworks to hold non-state actors accountable for human rights violations.180 Non-state groups prey upon civilians and children forced out of school due to conflict,181 but the traditional state-based approach to international law provides limited, if any, recourse for human rights violations — especially in the context of the child’s right to education in Africa.182 As a result, states continue to bear the primary responsibility of providing, respecting, and protecting a child’s right to education as guaranteed in numerous international and regional treaties.183 Although states, in theory, are obligated to prevent third parties from violating a child’s right to education,184 the destruction of national education infrastructure by armed terrorist groups only exacerbates poverty, socioeconomic inequalities, and the learning gaps between rural and urban African schoolchildren.185 Articles 13 and 14 of the International Covenant on Economic, Social and Cultural Rights have been interpreted to protect a child’s right to education during armed conflict, but until countries incorporate international treaties into their domestic law, the realization of the right to education remains in question.186 Non-state actors have no internationally recognized obligation 177 Lyon, supra note 12, at 228. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
178 Id.
179 Eric Schmitt, Two Decades After 9/11, Militants Have Only Multiplied, N.Y. TIMES (Nov. 20, 2018), https://www.nytimes.com/2018/11/20/us/politics/terrorism- islamic-militants.html [https://perma.cc/ZC29-Z5EL].
180 Kamatali, supra note 96, at 236.
181 Roughly 42 percent, or 10.5 million, children of primary school children in Nigeria are currently out of school.
Isokpan & Durojaye, supra note 137, at 646.
182 Katamali, supra note 96, at 236.
183 Isokpan & Durojaye, supra note 137, at 645–46. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
183 Isokpan & Durojaye, supra note 137, at 645–46.
184 Id.
at 645.
185 Julius Agbor, Poverty, Inequality and Africa’s Education Crisis, BROOKINGS (Sept. 26, 2012), https://www.brookings.edu/opinions/poverty-inequality-and-africas- education-crisis/ [https://perma.cc/P6CE-SRTK].
186 Bakare, supra note 4, at 152, 155; Adebisi, supra note 40, at 438.
74 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
XLVI to protect the right to education.187 Thus, terrorist groups like Boko Haram, who vehemently oppose Western-style education, will continue to attack children’s access to education.188 While the Nigerian Constitution loosely protects education, the child’s right to education is not justiciable due to its placement in Chapter II, as Chapter II only provides objectives and principles to shape state policy.189 As a result, international human rights law must be strengthened to protect the child’s right to education during armed conflict, as states should no longer bear the sole responsibility for protecting and promoting human rights. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
In addition, the vestiges of colonialism and structural adjustment programs prevent the full realization of the right to education in Africa.190 The dependence of African nations on international financial and governmental institutions for aid often forces states to be beholden to international norms that conflict with their cultural values and “African identity.”191 International human rights law needs to more fully incorporate the African perspective into its discourse, as “the human rights mosaic” remains “incomplete and undemocratic” without it.192 The right to education under international humanitarian law should consider the “particular positionality, historicity, and needs of populations” against the backdrop of war, political chaos, high-child marriage rates, high rates of illiteracy, and child labor.193 In sum, war is no longer between two or more states and non- state armed groups commit human rights abuses daily. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
While the UN Security Council imposed targeted financial sanctions, an asset freeze, and an arms embargo on Boko Haram in 2014,194 ideological opposition to education remains a central tenant of the terrorist group.
Therefore, international law needs to implement domestic legislation protecting the child’s right to education so that national 187 Bakare, supra note 4, at 166.
188 Bertoni, supra note 33, at 1.
189 Isokpan, supra note 137, at 639.
190 Adebisi, supra note 40, at 446–50.
191 Id.
at 450–51. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
191 Id.
at 450–51.
192 Id.
at 439.
193 Id.
at 433, 439.
194 Press Release, Security Council, Security Council Al-Qaida Sanctions Committee Adds Boko Haram to Its Sanctions List, U.N. Press Release SC/11410 (May 22, 2014).
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 75 legal frameworks parallel international legal standards.195 195 HYLL-LARSEN, supra note 107, at 5.
76 N.C. J. INT'L L. [Vol.
XLVI | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
761 THE ROLE OF CENTRAL AUTHORITIES IN THE APPLICATION OF THE 1980 HAGUE CONVENTION ON CHILD ABDUCTION: A CRITICAL ANALYSIS OF A GENUINE AREA OF PUBLIC INTERNATIONAL LAW (1980 Tarihli Uluslararası Çocuk Kaçırma Sözleşmesi Uygulamasında Merkezi Makamların Rolü: Gerçek Bir Uluslarararası Kamu Hukuku Uygulamasına Eleştirel Bir Bakış) Dr. Kutlay TELLİ1 ABSTRACT There is a widespread consensus that the Hague Child Abduction Convention of 1980 constitutes a comprehensive attempt at the international protection of children. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
This article mainly intends to provide a roadmap for Central Authorities regarding the return requests within the meaning of the Hague Convention.
It also touches on the emerging challenges faced by the Convention system while achieving a delicate balance between the competing or joint interests of the child as well as the left-behind and taking parents within the context of grave risk exception. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
In doing so, alongside with achievements made by Contracting States, this work will find a chance to make clear the overall handicap of the implementation mechanism.
Lastly, it will be revealed that the translation of the Convention requirements into practice presupposes the full exercise of public power and the application of public international law norms, despite the Convention is a natural product of international private legal order. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Key Words: Lahey iade talebi, ciddi risk iddiası, uluslararası kamu hukuku.
ÖZ 1980 Tarihli Lahey Çocuk Kaçırma Sözleşmesi’nin, çocukların ulusla- rarası korunması adına geniş kapsamlı bir girişim olduğu genel olarak kabul edilmektedir. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Bu makalede, esas olarak, Merkezi Makamlar için 1 Judge, Ministry of Justice, Turkish Central Authority for the Child Abduction Convention, kutluay2002@yahoo.com 762 The Role Of Central Authorities In The Application Of The 1980 Hague Convention On Child Abduction: A Critical Analysis Of A Genuine Area Of Public International Law Lahey Sözleşmesi kapsamında yapılan başvurulara dair bir yol haritası- nın temini amaçlanmıştır. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Ciddi risk istisnası kapsamında çocuk, kaçıran ve bırakılan ailenin çatışan ve ortak menfaatleri için hassas bir denge ku- rulurken, Sözleşme sistemince karşılaşılan yeni sorunlara da ayrıca temas edilecektir.
Bu sayede, Taraf Devletlerce kaydedilen gelişmelerin yanında, uygulama sisteminin yetersizliklerinin genel olarak ortaya çıkarılması da sağlanacaktır. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Son olarak, Sözleşme, uluslararası özel hukuk sisteminin bir parçası olmasına rağmen; Sözleşme yükümlülüklerinin hayata geçiril- mesinin kamu yetkisinin tam kullanımını ve uluslararası kamu hukuku normlarının uygulanmasını gerektirdiği gözler önüne serilecektir.
Anahtar Kelimeler: The Hague return request, alleged grave risk, international public law.
I. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
I.
Introduction Hassle-free international travel and the growth in multinational marriages resulted in the increase of the commitment of child abduction offence beyond borders after 1970s.2 Since then, the advancement of children’s rights and interests has lied at the heart of multilateral law mostly in connection with the proliferation of divorce issues. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction3 represents a historic value in the protection of children at the international level.4 The Convention is designed for safeguarding children, as stressed in the Official Website of the Convention ‘from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return’.5 It is useful to point out that 93 Member States of the Convention currently acts together against such a serious crime.6 This article initially provides an insight into the active role of Central Authorities in fulfilling operational measures of the Convention. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Chapter II, thus, is concerned to the mission of Central Authorities to meet obligations set out in particularly Article 7 of the Convention.
It sheds light on the 2 Tai Vivatvaraphol, ‘Back to Basics: Determining a Child’s Habitual Residence in International Child Abduction Cases Under the Hague Convention’, (2009) 77 Fordham Law Review 3325, at 3330.
3 Herein after referred to as “the Hague Convention”. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
4 See for instance, Carol S. Bruch, The Hague Child Abduction Convention: Past Accomplish- ments, Future Challenges, (1999)1 European Journal of Law Reform 97, at 97.
5 Official Website of the Hague Conference on Private International Law, ‘Welcome to the Child Abduction Section’, http://www.hcch.net/index_en.php?act=conventions.status&cid=24,, accessed 20 October 2014. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
6 See Official Website of the Hague Conference on Private International Law for updated in- formation concerning parties to the Convention, ‘Status Table’, http://www.hcch.net/index_ en.php?act=conventions.status&cid=24#nonmem, accessed 3 November 2014.
763 Dr. Kutlay TELLİ question of which coercive efforts should be made to harmonize the case- law of national justice actors and practice of Central Authorities. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
In doing so, this study basically intends to review key operating principles and the underlying shortcomings of the Convention implementation system and to make basic recommendations.
Chapter III later addresses how to strike a necessary balance between the custody rights of left-behind and abducting parents in the field of grave risk claim. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Finally, even though the Hague Convention mainly concerns the matters between private individuals, this work displays that the scope of the Convention may bring up threshold questions, mostly falling within the ambit of the public international law.
Taking into account the changing nature of international law and the growth of international organizations,7 this part of the present work focuses on key aspects of the exercise of public power for the application of the Convention. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
As for terminology, regardless of the fact that there is no universally agreed meaning of “international child abduction”, for the purpose of this article, this phrase means the “abduction by parents or by close family members”, namely, as argued by the doctrine, “international parental child abduction”.8 In emphasizing that ‘we are far removed from the offences associated with the terms “kidnapping” ’, the Explanatory Report indicates that there is no inclusion of abduction with pure criminal objectives such as kidnapping.9 Thus, other child abduction crimes committed by ordinary criminals for different aims such as ransom are not covered in this article.10 As for the term of “abducting or taking parent”, it is understood to mean a parent having full responsibility for the wrongful removal or retention of a child in this study. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Additionally, the Convention is codified with a view to protecting the prompt return of children wrongfully removed to or retained and ensuring respect for rights of custody and access.11 So, the Hague request 7 See e.g.
Vaughan Lowe, International Law (Oxford University Press, New York 2007), at 11 and 13; Malcolm N. Shaw, International Law (Sixth Edition, Cambridge University Press, New York 2008), at 65. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
8 See for the same perspective, ‘International Family Law-Habitual Residence, Changing Custody Rights, and Wrongful Retention and Removal Under the Hague Convention on Civil Aspects of International Child Abduction: Redmond v. Redmond, 724 F.3d 729 (7th Cir.
2013)’, (2014) 37 Suffolk Transnational Law Review 235, at 235.
9 Explanatory Report on the 1980 Hague Child Abduction Convention by Elisa Pérez-Vera, 1982, para.
53. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
53.
10 See for a helpful study on the commitment of child abduction offence including by other perpetrators Susan O’Brien, Criminal Investigations: Child Abduction and Kidnapping (Chealse House Publishers, United States 2008). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
11 Article 1 declares two objects of the present Convention: a-securing the prompt return of children wrongfully removed to or retained in any Contracting State; b- ensuring that rights 764 The Role Of Central Authorities In The Application Of The 1980 Hague Convention On Child Abduction: A Critical Analysis Of A Genuine Area Of Public International Law presupposes an illegal displacement or retention of the child in question.12 The preamble attaches particular focus on three core objectives: the protection of children internationally from the harmful effects of their wrongful removal or retention; the establishment of procedures to ensure their prompt return to the State of their habitual residence and securing the respect for the access rights. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Since this work will entirely deal with the return process of children, the Hague access requests for access rights within the meaning of Article 21 go beyond this study.
In that connection, it is also significant to underline that only post-abduction process falls within the scope of the present work.13 Resources prepared by Permanent Bureau on the basis of the understanding of Member States are the cornerstone of this work for achieving a useful guidance on the Hague applications. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Academic literature will be reviewed so as to examine current deficiencies of the Convention.
It results from the foregoing that the present study prefers analytical review and avoids descriptive methods.
II.
The Duties of Central Authorities for Processing the Application for Return This Chapter attempts to say that consecutive procedures need to be followed upon a return request.
Indeed, any mistake on the ring of procedures may cause a potential setback for the whole stages. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Moreover, it will be also referred to that a broad range of responsibilities are accorded to Central Authorities for the enforcement of the Convention.
It is vital at the outset to categorize the tasks of Central Authorities as twofold: inexplicit and explicit tasks.
Firstly, Central Authorities have obligations that are not specified in the formal text of the Convention but can be deducted from the spirit of the Convention. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
First group of implicit missions may be summarized as awareness-raising campaigns and progressive implementation efforts.
In relation to former mission, one needs to realize that the Convention return proceedings are far from straightforward.
Accordingly, the development of education and training programmes is indispensable for increasing the awareness of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
12 Alin-Gheorghe Gavrilescu, ‘The Main Civil Aspects of the International Child Abduction’, (2013) Annals Constantin Brancusi U. Targu Jiu Juridical Series 59, at 62. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
13 See generally regarding preventive policies aiming at eradicating all conditions for the infant abduction, Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part III- Preventive Measures (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Great Britain 2005).
765 Dr. Kutlay TELLİ of competent national agencies including justice sector staff. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
The formulation of guidelines, manuals and checklists is a crucial ingredient for justice professionals.14 Regarding latter mission, it is suggested that one of the primary tasks of Central Authorities is to secure and facilitate the compliance with the Convention obligations.15 Review and where appropriate modifying and amending all legal framework and policies is a reliable tool to make progress. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
The Permanent Bureau underlines the significance of progressive implementation while making clear as follows: Implementation should be seen as a continuing process of development and improvement and Contracting States should continue to consider ways in which to improve the functioning of the Convention, if appropriate, through modification or amendment of existing implementation measures.16 When it comes to explicit functions, there are also the assignments of Central Authorities that are clearly enunciated in the Convention. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
In that connection, a few key articles should be identified.
In the matter of Articles 7(c) and 10 of the Convention, they lay certain responsibilities upon Central Authorities to take all appropriate actions for the voluntary return or for an amicable resolution.
In that connection, this study seeks to illustrate the best ways of achieving these goals. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
After registering and acknowledging the receipt of application, the requested Central Authority is in need of checking whether the documents for return demand meet Convention requirements.17 What is noticeable is that the rejection of a Hague return petition strictly depends on certain qualifications.
Two clusters of refusal indicators may be considered at this juncture. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
First of all, one needs to be aware that the appeal for return may be directly rejected as it does not come within the ambit of the Convention at the beginning.
The requested Central Authority is bound to monitor whether the requirements of the Convention are fulfilled or that the application is otherwise is well-founded according to Article 27.
Supporting adequate documentation is particularly needed at this point. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Otherwise, the Central Authority is granted a competence to dismiss the 14 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of In- ternational Child Abduction: Part IV- Enforcement (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2010), at 39. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
15 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part II- Implementing Measures (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2003), at 11.
16 Ibid., at x. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
16 Ibid., at x.
17 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of In- ternational Child Abduction: Part I- Central Authority Practice (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2003), at 44. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
766 The Role Of Central Authorities In The Application Of The 1980 Hague Convention On Child Abduction: A Critical Analysis Of A Genuine Area Of Public International Law Hague application at this juncture.18 As to the second cluster, we should duly keep in mind that every return request is subjected to compliance with additional specified necessities or undertakings.
It is critical for Central Authorities to scrutinize whether the fundamental necessities are satisfied or not under Articles 3 and 4. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
This may be summarized as follows: -the applicant had custody rights that were infringed by the alleged removal or retention, -the applicant essentially was exercising his/her custody rights at time of removal or retention, -the applicant was habitually resident in a Member State at the time of the removal or retention -the child has not been yet 16.
Where prerequisites are met or undertakings are completely fulfilled, the process moves forward with pre-trial procedures. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
It is imperative to confirm for the requested Central Authority that the child has been within its own jurisdiction.
Locating the child is one of the first responsibilities to be discharged.
Article 7 (a) involves the discovery of the whereabouts of the abducted child who has been wrongfully removed or retained. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
At this stage, Central Authorities mostly prefer to search, through including judicial authorities such as the office of public prosecutors, whether the child involved lives in the address described in the application form. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
The requested Central Authority forwards the application along with its annexes to the local authority with the purpose of finding the location of the child at this time.19 Aside from domestic agencies, INTERPOL, in close cooperation with international organizations, may help to promptly locate children.20 If child lives in the place described in the application petition, the relevant judicial body should carry out preventive actions for the further potential harm pursuant to Article 7 (b). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
It is considerable to understand that the locating of the child’s place does not necessarily involve informing the requesting parents of current location.
As a matter of fact, the 18 Ibid., at 26.
19 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part II- Implementing Measures (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2003), at 25. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
20 INTERPOL may offer technical and operational assistance to national actors in finding child at the international level: Report of the Third Special Commission meeting to review the op- eration of the Hague Convention on the Civil Aspects of International Child Abduction (17-21 March 1997), para.
28.
767 Dr. Kutlay TELLİ confidentiality is a recognized principle here. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Another preventive method is to preclude the removal of the child at issue outside his/her current location until the finalization of the case.
The provision of an order for the placement of the child in a temporary custody is a complementary and provisional strategy.21 As a next step, the abducting parent is invited to hammer out a compromise. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
The Special Commission of Hague Conference attaches great emphasis to the amicable resolution of the issues while further recognizing and welcoming the important role of Central Authorities through the use of mediation.22 It should not be forgotten, however, that there is no internationally reaffirmed type of mediation.23 In the case of the disagreement on the issue, the local authority may be demanded to launch the return proceedings. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
If the taking parents do not want to do reach an agreement, judicial or administrative procedures are initiated or facilitated with the aim to obtain the return of the child.24 One of the most important features of the Convention system, the requested Central Authority generally becomes party on behalf of the petitioner before the court while acting as the petitioner; representing the petitioner parent or acting in capacity of amicus curiae.25 In fact, that is the main dilemma of the Convention machinery because on many occasions, requested Central Authorities participate in such cases as main representative of requesting families. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Moreover, by and large the Central Authority concerned defends foreigners against its own citizens. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
The mentality behind this idea has been enshrined in the Convention, as suggested by Lindhorst and Edleson that the citizenship of the abductor, left-behind parents and abducted children cannot be taken into account pending the Hague cases.26 Another critical side of the institution of the court proceedings, the requested Central Authority is bound to help judicial affairs officials 21 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part II- Implementing Measures (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2003), at 32. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
22 See for instance Conclusions and Recommendations of the Sixth Special Commission on the practical operation of the 1980 and 1996 Hague Conventions (1-10 June 2011), para.
14.
23 Sarah Vigers, Mediating International Child Abduction Cases: The Hague Convention (Hart Pub- lishing, Oregon 2011), at 34 and 35.
24 See Article 7 (f). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
24 See Article 7 (f).
25 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part II- Implementing Measures (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2003), at 26. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
26 Taryn Lindhorst and Jeffrey L. Edleson, Battered Women, Their Children, and International Law: The Unintended Consequences of the Hague Child Abduction Convention (Norheastern University Press, Boston 2012), at 7. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
768 The Role Of Central Authorities In The Application Of The 1980 Hague Convention On Child Abduction: A Critical Analysis Of A Genuine Area Of Public International Law appropriately through the proper explanations regarding the return case management, the Hague Convention and its implementing measures, applicable national legislations and regulations, the collection and evaluation of evidences. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
It has been already proven that the provision of the magistrates with full information about the nature of a Hague return system is very critical.
What is more, at the time of the court proceedings, it is obligatory, under Article 7(g) of the Convention, to enhance the provision of legal aid and advice including the participation of legal counsel and advisers.
Such engagements are the keystone of having an access to the court proceeding timely and effectively. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
In addition to the aforementioned elements, national justice components must be reminded by Central Authorities that judges should not decide on the merits of rights of custody until the Hague return application is completed under Article 16. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
On the other hand, it is essential to pointing out that the decision on the return of the child involved does not imply a decision on the merits of the rights of custody.27 Throughout all these procedures, Central Authorities are obligated to keep each other informed of all developments under Article 7 (i).
It is crucial to keep updated all parties of the agenda of the proceedings. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
It implies that urgent responses as well as rapid communication and fast reporting engagements are needed at every stage.28 The provision of follow-up information for such as acknowledgement of receipts of any letter or document, recommendations on further necessary paperwork or the notification of dates for court and legal proceedings is an imperative duty.29 Information sharing commitment covers further engagements including notification of the applicant’s right of appeal, its time frames, deadlines and all respective conditions.30 Convention machinery involves the implementation of speedy and prompt procedures for interests of the children. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
This conclusion may be drawn from the wording of Article 1 underlining the need for “prompt return of children”.
Article 2 also reaffirms the requirement for using the most expeditious procedures possible with the aim to pursue the objectives of the Convention. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
Central Authorities, in the light of Article 7 principles, 27 Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction (18-21 January 1993), Con- clusion 7. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
28 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of In- ternational Child Abduction: Part I- Central Authority Practice (Permanent Bureau of the Hague Conference on Private International Law, Jordan Publishing Limited, Hague 2003), at 16 and 17.
29 Ibid., at 37 and 38.
30 Ibid., at 55.
769 Dr. Kutlay TELLİ are necessitated to enhance the most expeditious proceedings available. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |
This undertaking is more broadly and expressly formulated in Article 11 declaring that the judicial or administrative authorities of Member States shall act expeditiously in return proceedings.
Furthermore, second paragraph of Article sets very short time frame. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721946693532.pdf | https://www.uyusmazlik.gov.tr/Resimler/Pdfler/Makaleler/30-11-2017kutlaytelli.pdf | Turkey |