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On Human Rights Education and Youth

Youth is the most transversal of identities, where a civil space exists there will often be a powerful youth dimension to it. This placing enables young people to be powerful drivers of change through their unique access to diverse facets of society. In the context of a growing human rights crisis, their being sidelined in public discourse, youth must be enabled to lead the reinvigoration of a human rights culture.

Our political moment is one defined by strains on multilateralism, with politics that is frighteningly volatile, unproductively confrontational, and seemingly un-bridgeably polarised. In this setting, where we cherish the mere avoidance of the active dismantling of international structures and norms, it is nearly impossible to imagine the international community converging on consensus on the most fundamental and universal of values which we should universally share and uphold as a foundational to all we do on an individual, interpersonal and communal level. Yet seventy years ago, in the ashes of two world wars where conflict was rife and superpower ideological polarities distinct and omnipresent in international forums, exactly this was achieved.

It is important to note, one of the core reasons the Universal Declaration of Human Rights, 1948, was capable of being promulgated is the precise reason human rights are ever vulnerable. This reason is the focus of this article; the supremely relative nature of conceptions of human rights and the consequent inability of legal mechanisms to enforce them alone. This trait allowed for delegations sceptical of universal human rights’ place within international law to not bar the Declaration’s passing, with some of these delegations dismissing them as just “pious phrases” and feeling safe in their belief that these new rights were practically unenforceable.

However this perspective underestimated the norm-shifting, culture-leading role that the Declaration, subsequent conventions and their monitoring could have; where international condemnation and adjudication can fail, individual and group identification with human rights has ensured their continued force within society and international law. Yet, this relativity of the conception of human rights also requires human rights defenders to continuously and critically engage communities at all levels with their rights and promote the exploration and development of a human right culture, to ensure that human rights are grounded in their mission for human dignity.

This article is split into two core sections:

The contemporary crisis for human rights; a cultural and institutional approach to human rights.
A case study of youth organisations leading on human rights education.

The contemporary crisis for human rights

The far right is on the rise around the world, threatening our hard-won rights and freedoms and the values that have defined our liberal, democratic societies for more than 70 years.

Human rights as norms are in crisis. Political conflict undermines the work of regional bodies and, regarding the efficacy of our work, consider that in reviewing the human rights landscape the former UN Secretary-General Ban Ki-moon has suggested that there has never been so much suffering since World War II. Both in outcome and process, human rights structures are struggling to appear effective.

How is it that our national laws law permit continued disregard of human rights? How is it that our cultural insistence of respect for human rights is fading and fracturing and we are not capable of adequately protecting international structures and educational programs? In our landscape of global power shifts, the goal of moulding the aspirations of human rights into political reality must not be sidelined.

A cultural and institutional response

For continued progress, we must embrace the messaging of drafters of the UDHR; human rights are not primarily safeguarded by statute or court, but rather by a culture which demands respect for fundamental freedoms. A culture which insists on a comprehensive institutional approach to human rights.

To develop this normative culture where human rights are respected, we require multiple movements. First our institutions must continue to play their role; a mix of judicially developed and applied common law principles, parliamentary scrutiny of legislation and executive action in the context of international law, and the independent monitoring by our human rights commissions and international bodies. The second arm which will develop this culture is human rights education. Wherein individuals and communities engage with the concept of rights and their applications and conflict in their individual and community context.

Human rights education

Human rights education is immediately understood as the communication of human rights, their implications and aspirations. While HRE does encompass the teaching and learning of a culture of human rights, it simultaneously is a means of defining the form of human rights. Further, HRE is not only a moral imperative but a legal right found within international law.

This understanding of human rights education, the facilitated exploration and defining of rights, allows for the realisation of universal human rights while not requiring that every individual and state understands every right in exactly the same way. Cultural diversity is enabled to have a role in human rights, however the specificities of this role as well as the boundaries for cultural diversity to hold influence over rights should always be open for debate, multiperspectivity is not an excuse for absolute relativity.

Case studies: youth organisations leading on human rights education

On a practical level, human rights education entails the enabling an individual or group to explore a conflict of rights within their reality and to define the normative balance of rights. This explorations should made in the context of the group’s empathising with the parties impacted. As such, non-formal educational approaches are particularly effective here.

As human rights are seeing diminished space in public discourse, youth are leading the way in constructing alliances with diverse groups, who may not be traditionally seen as civic actors, to bolster the cultural appreciation of human rights.

This case study briefly outlines an example of young people as educators, telling the story of human rights, and ultimately being human rights education.

National Training Course on Human Rights Education

22 young people from diverse backgrounds gathered in Kilkenny, Ireland for a week of training as human rights educators, organised by Eurobug, municipal partners and the Council of Europe Youth Department.

Throughout the training course participants engaged in a programme of training as well as peer to peer and intercultural learning opportunities. Participants were supported to run their own sessions within the program, which enabled their own individual human rights context to be explored by the group.

Participants reflected on the series of powerful moments they experienced when activities enabled their empathising with distinct human realities. This process also allowed participants explore how many human rights abuses are systemic, and many perceived perpetrators are not truly in charge, but rather helplessly part of a system. Abuses were recognised as not always a consequence of a person actively choosing to deprive, and as such how we should address structural problems.

Related to structural issues, further activities encouraged participants to explore the role of privilege in relation to human rights. Anger as a tool and a hindrance was also explored. As the natural reaction to marginalisation, this is especially pertinent to minority perspectives. The activity explored anger as a tool and a motivator, but also as a potential hindrance which should not consume an activist but facilitate progress.

As well as making spaces for empathising and exploring human rights contexts, participants also were introduced to prerequisites for accessing human rights, trigger moments for different human rights, the underlying theory and history of human rights and the international and regional mechanisms for formally confronting violations.

Conclusions

We must demand and build a more fundamental solidarity within our society, as there are currently existential threats to our human rights structures. Shrinking civil space is having a deeper consequence of restricting the freedom to confront abuses of rights and any violation of human rights destabilises and threatens the entire human rights project, especially if unchallenged.

We too often overly criticise allies. Liberal political forces are struggling to unify around our fundamental shared values, instead we are often lost in bickering over the process. We need an organised and unified force and we need to collaborate to bolster our movement.

We now face a crisis and are just managing a scandal, this is the consequence of having failed to get angry and having failed to communicate rights to people. By bringing human stories to human rights discourse, we can foster greater connection with the movement. The first lesson of communication is to be seen and felt, and individual stories can make this happen. Human rights education will aid us in establishing recognition of our common vulnerabilities and move us towards a more substantive vision of equality which holds universal human rights at its core.

This is not an add on, it is at the heart of delivering upon our human rights commitments to the present and future generations.

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Human Rights and the European Single Market

Conflicts between Fundamental Rights and Fundamental Freedoms

A brief history of the CJEU and the Internal Market

Article 262 of the Treaty of the Functioning of the European Union states:

“The internal market shall comprise of an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured”.

However, the Internal Market, has long prior been the spearhead of the path towards European integration; international market access brings links of a social, political, cultural, and economic nature; all tools for deeper integration of the union.

As such the European Project has made room for ordoliberal ideologies, with a common market being presented as a means to assisting prosperity through employment and economic growth, as well as a means to lay foundations for greater integration of member states via building social, political, and cultural building.

An instance of early aspirations to a common market is the EEC (European Economic Community) being established with an objective of facilitating a common market between its six member states, where goods, services, people and capital could move freely. In this era, the EEC was unable to effectively establish a common market, as it lacked the decision making structures necessary to remove barriers to freedom of movement. Ultimately the establishment of common standards and regulations and removal of intangible barriers lacked the necessary political will within the EEC member states, where protectionist policies were still in play. The project needed an adjudicator to remove negative discrimination and the political will of member states to remove incongruence in laws and standards of member states.

In the 1980s, the Single European Act, spurred on by a White Paper, reformed these decision making processes and presented a timeline for the completion of the single market. On January 1st 1993, the Single Market, complete with the means to combine positive and negative integration, was in place.

In 2019, the European Union, member states, businesses and further stakeholders, rely on the Court of Justice of the European Union as the adjudicatory body to oversee the freedoms of movement on which the common market of the European Union exists.

In this essay, the author will critically analyse the jurisprudence of this court and explore where similarities lie in its approach to questions of freedom of movement of persons, services/establishment and goods.

To aid analysis, the author will break this essay into sections before concluding:

Areas where the Court of Justice of the European Union’s jurisprudence differs with regards to its processing of the different fundamental freedoms and where jurisprudence converges with regards to its processing of the different fundamental freedoms.
Similarities existing regarding courts considerations of implications of different free movement rights on fundamental rights.

Part One:

Areas where Court of Justice of the European Union jurisprudence differs with regards to its processing of the different fundamental freedoms and where jurisprudence converges with regards to its processing of the different fundamental freedoms.

Common purpose

There is a common purpose behind the jurisprudence of the Court of Justice of the European Union related to free movement of; the removal of national level restrictions on the exercising of free movement rights. This underlying common purpose links CJEU jurisprudence on fundamental freedoms, where they divide is procedurally amd in the assessment of proportionality, discrimination, and restriction.

Illusory uniformity

The approach the Court takes to attack free movement restrictions also appears similar; the process of the identification of a restriction and then analysis against the available Treaty grounds for justification. However, it has been suggested that appearances of procedural uniformity in the court’s approach to free movement restrictions may be illusory. Connor proposes an instance of this is the court’s approach to freedom of movement of goods, where the language of the court suggests it is uniform, but in practice the court remains attached to the identification of discrimination, contrary to the uniformity of language. Barnard also suggests this occurs in CJEU jurisprudence related to matters of taxation.

Purely academic distinction

The court currently creates a distinction between its approach to goods and its approach to persons and services in regards to free movement rights. Connor suggests that jurisprudence related to goods occupies an ‘ad hoc position, with an eye to the future, a foot in the past’. This is exemplified by the doctrine of justifications reliance on academic distinctions between restriction and discrimination. Further the Court’s jurisprudence related to free movement of goods currently holds contradictions and decisions not transparently reasoned by the Court, for example the concept of the selling arrangement being handled by the court on numerous occasions, yet not directly dealt with. The Court’s distinction between “selling arrangements” and other, in particular product related measures, is a decidedly philosophical split and demonstrates the underlying incongruence of free movement of goods jurisprudence beneath the illusory uniformity of CJEU jurisprudence.

Deconstructing fundamental freedoms jurisprudence

While this essay seeks to analyse similarities in the CJEU’s jurisprudence towards free movement of persons, goods, and establishment and services, the author proposes that a review of the spaces where the court creates divergences with regards to its approach to the freedoms of movement also aids analysis.

Convergence momentum

As previously discussed, there is a common purpose behind the jurisprudence of the Court of Justice of the European Union related to free movement. Tryfonidou suggests that the move towards convergence of CJEU jurisprudence on Fundamental Freedoms is an element of broader development in the European Union, in particular the positioning of market freedoms as an economic right owned to all Union citizens. This is a recent development, historically the CJEU has developed fundamental freedoms at different paces. For example, the Keck judgement seeking to limit community intervention in free movement of goods by placing a requirement of discrimination; and the 1990’s focus on safeguarding the freedom of movement of persons. However as the EU has developed, the internal market is no longer the focal point of the project, and as such economic freedoms are viewed more holistically within social policy, spurring the CJEU to bring the jurisprudence of the freedoms into congruence.

Part Two:

Similarities regarding courts considerations of interactions of free movement rights and fundamental rights?

Market freedoms and risks to fundamental rights

The fundamental freedoms, on which the common European market is based, have been present in the Community legal order since its very beginning, fundamental rights are a more recent addition and present largely due to judicial activism of the CJEU. The internal market, as an instance of globalisation, presents challenges for fundamental rights and there are risks that the interests of free trade and ordoliberalism pressures may take priority to concerns related to environmental, socio-cultural, development and fundamental rights.

Intersections of fundamental rights and freedoms

Fundamental rights and the free movement rights intersect in part, as the rights such as the right to live and work in a country and to live with your immediate family are akin to the rights enumerated in the European Convention on Human Rights. However they also can have a conflicting or supplementary to a fundamental freedom. The relationship here has been discussed further in the jurisprudence of the Court of Justice, Civitas, Madrid.

“The impact of fundamental rights on a fundamental freedom may be dual, in that they may serve as a limitation to a limitation of a fundamental freedom or a limitation to a fundamental freedom “

As discussed by Roth & Oliver free movement rights are also often interpreted as being linked to prohibition of discrimination on the grounds of nationality and on citizenship. Further, the Charter of a Fundamental Rights of the European Union acknowledge the right to live and work in any member state.

Greater consequences

However, the implications of limitations of internal market freedoms are mostly incomparable to the implications of the limitation of many other fundamental rights. The author submits it is evident that truly fundamental rights, such as the right to freedom of expression and right to life should be considered a priority to market freedoms with regards to their protection.

Fundamental rights within CJEU fundamental freedoms jurisprudence

The CJEU’s modes of interpretation, (grammatical, systematic, teleological) also entail the protection of fundamental rights. With regards to limiting freedom of expression, the ECtHR allows limitation if it supports a legitimate aim in the interests of democratic society; to fulfil a pressing social need.

It is through this lense, that of freedom of expression – fundamental freedoms, through which the author now analyses similarities between the CJEU jurisprudence with regards to the internal market, drawing on the writing of Jakir

Fundamental rights and Free movement of goods

In Familiapress the CJEU heard a conflict between free movement of goods, and freedom of expression via press diversity. Here the CJEU invited the national court to assess whether a freedom of expression was under risk of being restricted. By mandating increased scrutiny, the CJEU is ensuring that Austria is being more elaborate in its fundamental rights protection. as discussed by Jakir. Further, in this instance of conflict the CJEU balanced the impact of the internal market on fundamental rights protection, meanwhile using market relations to engage protection of fundamental rights.

Fundamental rights and free movement of establishment/services

United Pan Europe, a case wherein the Court considered the conflict between freedom of establishment and freedom of expression, saw the ECJ first identify an underlying conflict (maintenance of pluralism/establishment with freedom of expression). At risk was the restriction of regional social, cultural, religious, philosophical or linguistic components. The next step of the Court was to find a balance between the free provision of services and freedom of expression.

The Court then gave criteria to the national court which must be satisfied for freedom of expression to supersede the internal market freedoms. The purpose of this was presented by X as a means to ensure that CJEU measures triggered by a market freedom limiting a fundamental, effects all market operators uniformly and consequently safeguards against disruption of the internal market.

Similarities in jurisprudence

For both free movement of goods and establishment/services the CJEU jurisprudence has a similar thread of aiming to safeguard fundamental rights without disrupting the internal market by restricting fundamental freedoms.

Conclusion

There are tensions within CJEU free movement of jurisprudence, and many missed opportunities for elucidation and resolution have passed through the court. In regards to tensions, contradictions and missed opportunities by the Court, the jurisprudence of free movement of goods is a microcosm of free movement jurisprudence more broadly. Wherein Courts have failed to be transparent in reasoning and to take the chance to lay out uniform and transparent reasoning.

Fundamentally, jurisprudence on market freedoms is linked through the courts desire to see convergence among the market freedoms, however the procedural practice of the CJEU sees fundamental freedoms exists in varying degrees. A further fundamental similarity, is the Courts wish to see the realisation of the internal market.

The CJEU views the internal market primarily through the lense of further integration and increasing efficiency in trade, but also pays heed to the impact of fundamental freedoms on fundamental rights, while ensuring the functioning of the internal market is maintained. This is seen in jurisprudence related to both free movement of goods and services and in the context of the latter the Court even utilised the member states regulation of market relations to raise the standards of human rights protection.

Bibliography and Sources

Books

Chalmers et al., European Union Law: Text and Materials, 3rd Edition (Cambridge: Cambridge University Press, 2014), Chapter 15
Craig and de Burca, EU Law: Text, Cases and Materials, (6th ed., 2015, Oxford: Oxford University Press), Chapter 17

Journals

Connor T., ‘Goods, Persons, Services and Capital in the European Union: Jurisprudential Routes to Free Movement’, (2010) 11 German Law Journal 15

Cockfield, Arthur (1994). “European Union: Creating The European Single Market”. Wiley Chancery Law.

Spaventa E., ‘Leaving Keck behind? The free movement of goods after the rulings in Commission v Italy and Mickelsson and Roos’, (2009) 34 European Law Review 914

Oliver P. and Roth W-H., ‘The Internal Market and the Four Freedoms’, (2004) 41 Common Market Law Review 407

Tryfonidou A., ‘Further Steps on the Road to Convergence Among the Market Freedoms’, (2010) 35 European Law Review 36

Vanda Jakir, ‘Human Rights – With or Without the Internal Market?’ (2012) Masters Thesis

Cases

C-368/95 Familiapress [1997] ECR I-03689

United Pan-Europe Communications Belgium SA and Others v Belgian State [2007] ECRI-11135

Court of Justice, Civitas, Madrid, 2015, pp. 90 and ss.5 As J. KRZEMINSKA

Commission v Italy (2009) C-110/05

Commission v Italian Republic (1968) Case 7/68

Åklagaren v. Percy Mickelsson and Joakim Roos

Legislation

Charter of Fundamental Rights of the European Union art. , 2010 O.J. C 83/02, at

Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)

Consolidated Version of the Treaty on the Functioning of the European Union art. ,2008 O.J. C 115/47

Single European Act, 1987 O.J. L 169/1, (amending Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11.

Websites

Hannes Rösler, ‘Interpretation of EU Law’ <http://fds.oup.com/www.oup.com/pdf/13/9780199578955.pdf> accessed 19 March, 2019, 1

Grassroots youth climate action movements; opportunities and implications for traditional civil society organisations

For the most part, civil society is encountered by the public and political institutions through its manifestations as NGOs/INGOs. An issue linked to this, these titles define the organisations through a semantic negation; they are ‘non-governmental’ but what does civil society stand for in a positive sense?

This negative definition is a vulnerability. As a result, civil society must perpetually and tirelessly work to actively define the role and relevance of NGO/INGOs in all settings and interactions, as any passivity opens space for being defined by others into a role contrary to the normative role of civil society. For youth organisations, this definitional vulnerability is multi-faceted; anything labelled as ‘youth’ has to overcome an initial stigma of its presence being perceived as a tokenistic concession. Before even beginning to actively define its presence, youth organisations face the inertia of dispelling this stigma (it is an issue not limited to youth, but extends to any other group not traditionally seen by the political class as a political actor).

In this context, the growing presence and prominence of grassroots democratic youth movements within social and mass media and in political and civic dialogue can be a trigger for further introspection and self-regulation by CSOs on the structures, role and relevance of youth organisations in civic and political landscapes. This brief article will use the growing prominence of youth climate movements as a lens to review the space traditional youth civil society is holding.

First, some definitions for clarity:

Civil Society Organisations (CSOs):

The institutionalised (read: formal structure, often possessing legal personality, recognised by political institutions, either representing a class/social group or orienting themselves around a single issue, a degree of long-term integration into the civic machinery of their political setting) facet of civil society, which in turn is the civic space in society wherein citizens link themselves via common interest and collective activity. Family is excluded from all definitions (as a result of the the links needing to be voluntary) and business/commercial interests are often excluded in definitions by international governmental organisations.

Youth Organisations:

The youth sphere of CSOs, characterised by representative structures advocating on issues which are relevant to young people (and on this basis are granted access to political institutions and decision-makers). Youth is a transversal identity group, intersecting with many other identities and social groups. As such, these organisations have a wide mandate to speak on a range of when considering the needs and rights of youth. Ideally but not universally youth-led.

Youth (Grassroots) Movements:

The non-institutionalised (read: informal networks oriented around single or limited issues)(and consequently mostly decentralised) facet of youth civil society – most prominently represented by the youth climate movements, yet youth movements are not new, having played a role in multiple political upheavals and holding civic space before the rise of civil society in national and transnational space. Often entirely youth-led and absent of structural support from States.

Youth Organisations and Youth Movements; room for symbiosis and conflict

This section of the article will explore the relationship of the two facets of youth civil society, before proposing several pathways to more effective use of our shared civic space.

Exploration of the relationship:

Alienation via Institutionalisation:

Strikingly and seemingly paradoxical, there is often a general disdain among young people for any youth organisation claiming to represent them or their interests. This is paradoxical when set in contrast with the reception of youth movements (indicated by their rapid decentralised spread) by many young people. It appears young people can identify with these movements and feel represented by them, in the absence of the broader democratic/representative mandate of youth organisations. We can see this critique and dismissal of the legitimacy of youth organisations as inconsistent, or it can be taken as an exposition of institutionalised (youth) civil society’s failure to position itself effectively in a political moment distinct to that in which it emerged.

More appropriate to critique than traditional civil society’s ineffective positions, is the conflict between our 20th Century political institutional structure and our 21st Century communication and political culture. What does civil society look like and where does/should it stand in an age of social media, global identity and online immediate dialogue? Youth movements have been faster to answer this question than CSOs.

Instrumentalisation; more than a buzzword:

There is a finite amount of civic space, and less so for specific areas – such as youth. The space is limited by resources, but also by the capacity of institutions to engage with organisations. With this framing, there is effectively a competitive market within civil society for access to decision-making process. Yet, distinct to a commercial market, when an advocacy moment within the civil participation market is missed, it hurts the entire relevant sector.

Market dynamic parallels are also visible when comparing youth organisations and youth movements relationship to decision-makers. This can be explored by using a spectrum to define youth organisations and the nature of their relationship to states/institutions/IOs/etc. At one end is the “liberal adversarial” role and at the other is an “institutional enabling” role. The liberal adversarial CSO exists to challenge and displace interests within state political organs (or state interests within IOs in the transnational CSO context) and drives a political agenda both within and external to political processes. A CSO erring on the institutional enabling side of the spectrum cooperates with political bodies to achieve common goals and exists politically primarily via mediation of a political institution with action external to formal political processes limited.

The usefulness of this spectrum, or the accurate placing of CSOs on it, is an open question. The more valuable point is what the public perception of CSOs is within this framework, irrespective of what the most accurate perception would be, as this would be a tool to explore the public-CSO relationship and the youth-youth CSO relationship. Regardless of the reality, there appears to be a perception of insitutionalised youth CSOs as more enabling of political norms (due to their integration into them) and lacking of an externally visible adversarial relationship.

This connects into the previous alienation point, it is easier for young people to connect and identify with the very visible, primarily adversarial and targeted, yet vague, messaging of the youth climate movements – easier than to connect with than representative structures which are inherently slower in their responses and, due to the degree of integration to and dependence on political institutions, more reticent to directly critique on a systemic level. A climate striker can make a disparaging and highly visible online statement against the entire system propagating the climate crisis and amass support rapidly – meanwhile a youth CSO, which may be communicating more thorough position and proposing clear solutions and policy positions, with a representative mandate, is often less visible due to its response time, its messages direction (to decision-makers) and the perception of its support for political norms due to its integration into them, finds less traction. Despite being in a political culture influenced by the digital age, we still need traditional paths of civil participation and dialogue, and organisations advocating within them, due to our current political institutional structure.

Ability to self-regulate and covert costs to civil participation

Civil society organisations, through their democratic structures, have the ability to self-reflect and self-regulate, an ability which sets CSOs apart from many other political actors and a basis for their integration into decision-making structures at all levels. CSOs are granted access on the basis of this representation, so while CSOs must ensure they are representing, it must also ensure that civil society being seen to represent – which is reinforced through the self-regulation of their structures – as this aids in allaying the prevalent concern of States that particular organisations, INGOs and coalitions are communicating the interests of a few individuals rather than the interests of communities and is the foundation for further integration into decision-making processes.

The climate strikes are a grassroots decentralised democratic exercise on a scale never seen before, however the conflation of, or even supplanting, of traditional youth CSOs with climate strikers without a representative mandate holds implications for civil participation. Institutions and civil society, in the interests of the long term space for civil society organisations, must maintain the norm that civil participation is based on representation, in both the interests of effective use of civic space and also to ensure that a norm does not develop regarding state and political institutions choosing which organisations to engage with, or even designating a representative, rather than through the mediation of representative structures. Maintaining and building the perception of youth as a credible and legitimate political actors and civil society organisations as our point of mediation with political actors, should be a central consideration of a normative youth civic space and this should not be diluted by the desire to capitalise on media attention.

Proposals for more effective use and safeguarding of youth civic space:

Appropriate roles:

While being cautious around the supplanting of representative civil society, we should also recognise decentralised youth movements as having a central role in youth advocacy machinery. The climate strikers have the attention of mass and social media and have proven their strikes as powerful framing devices, framing climate change as the climate emergency it is. Youth organisations should facilitate these movements to this end with the resources they can, including their institutional access. However decentralised movements without democratic checks or a representative mandate should not take a share of civil participation at the cost of traditional CSOs. Instead CSOs should build on the framing and development of political will by youth movements and carry it into policy action. Each should hold their space and reinforce the other, but not overstep their mandate.

Dropping ‘NGO’ and ‘INGO’ from our vocabulary:

The most powerful framing tool we have for CSO action is the name we allow ourselves to be called by state actors. A negative definition is a wasted opportunity and a vulnerability, the term Civil Society Organisation (or Transnational Civil Society Organisations), with the active connotations of public interest separate from commercial or state gives a positive definition without excluding third sector actors.

Regionalise and localise institutionalised civil society

Youth organisations can and should be movement builders, but this cannot happen in hierarchical top down organisations. Structural funds are mainly given to networks holding national or international structures, which has resulted in top-heavy organisations unable to effectively engage with grassroots. If municipal authorities were to give structural support to organisations, then youth organisations could effectively link in with present and future grassroots movements and absorb them into their structures. National/international level organisations can often see themselves defined and coerced by financial exigency into an institutional enabling role, which may be a factor in the space which opened up for decentralised youth movements. Youth civic space driven by the grassroots would have limited delineation between youth movements and youth organisations – which would be the ideal relationship between the two.

Archiving Records of Care Institutions

Reflections on a last injustice for the institutionalised whom Ireland failed.

Opening a folder can be an intensely intimate affair, as those in the social care field will understand. When reading a personal file, a life is seen lying between the hole-punched pages and printed lines of psychologist reports and care plans. In broad strokes, someone has created an image of a person within those documents.

Broad strokes – the most apt description of these files, as there is always more to a person than can possibly be documented.

Yet for some, these documents are all that remain. For thousands of individuals, there are now, lying dusty and forgotten, files which are the summation of their horrific experience in Irish social care institutions of recent history. Due to the isolated nature of their lives within these institutions, they were often not afforded the opportunity to leave their mark on the world. Their lives were tales of dehumanisation, which are now contained within these files as the only record of both their existence and Irish society failing them.

‘Time to Move On from Congregated Settings’ – published in June 2011, this national policy document spelled the end for Irish social care within a congregated setting. While welcomed, a consequence of these institutions reshaping and renovating will be the inevitable unearthing, and likely discarding, of these personal and historical documents.

Too often, Ireland has swept its darker moments under the carpet; this is an opportunity to pay respects to those who suffered at the state’s and state-sponsored institutions’ hands. The state, social care professionals and residents of this country must act fast to preserve these documents.

A national archive of recovered records would serve multiple purposes.

It would mean access to the reality of lives within these institutions. This would act as a barrier to prevent our standards from relapsing, removing the ability for rose-tinted nostalgia to tempt institutional congregated care back into our psyche as an acceptable form of care.

Having an archive will also help Ireland to let it sink in that these are the tragedies and stories of Irish people from not too long ago. Many readers may be related to someone who lived and died within an institution. With an accessible archive, it will be possible to identify relatives and to humanise the victims.

There are no confidentiality issues; the people within these files are long dead – let’s ensure their stories live on in some form. It is now our responsibility to implement a program which prevents these records being left in a landfill and to instead ensure they are treated appropriately and respectfully.

Time is sensitive, stakeholders need to be gathered and the department needs to be lobbied before documents are carelessly discarded.

These files hold the stories of our past and our mistakes. They are also powerful tools. As social care standards progress, they could act as a reminder of what happens when regulation is replaced with faith, religious or blind, in institutions.

Or, they could lie in a landfill, these victims finding themselves discarded once more.

The Normativity of State Behaviour Categorisation – Class, Law, and Labelling Theory

“Deviance is not a quality of the act the person commits, but rather a consequence of application by others of rules and sanctions to an ‘offender’.

Labelling Theory

When theorists discuss labelling theory, they are paying attention to individuals or groups labelled as criminal and how that label effects their interaction with society from that point on. The sub-field of criminology builds on the theory of interactionism; the study of how humans shape society and society shapes humans through as a result of interactions.

Labelling theory was first introduced by Tannenbaum’s ‘dramatisation of evil’ concept in 1938, he proposed a link between how society perceives and describes an individual and the individuals actions. In 1951, building on this came Erwin Lamert and his “Societal Reaction” theory. He split the labelling process into a primary and secondary phase. The primary phase being the initial criminal act, the second phase beginning at the point the offender internalises the “deviant” label.

Lamert’s model suggests that offenders could choose to not internalise the “deviant” label. Through internal justification of their actions an offender could rationalise their offences, justifying action by their necessity for example, and continue to exist in the primary stage. The author suggests that this model supports Becker’s position, in that Lambert proposes the deviant label is created by society’s actions towards the offender, like Becker, and also suggests that the deviant label requires an internalisation of the label after the state and society has placed it on the offender.

The ‘Deviant’

When outlining his take on labelling theory, Becker claims that those labelled as a “deviant” are led to engage in behaviour befitting their “deviant” label. A question this essay is exploring is to what degree it is the response by others rather than the initial commission of an offence which causes the perpetrator to internalise the deviant label and begin to act within its prescription.

Beckers posits that, as crime is a social construct, society creates deviants through state intervention, via the legal system. It is an offenders interaction, post-offence, with the legal system and its sanctions which causes society to place the “deviant” label on the offender. This position is supported by the research of Cicourel. His work suggests that labelling, consequently justice, is applied selectively as per the stereotype led bias held by the agents enforcing, adjudicating and applying the law.

Selective application of labels

Cicourel’s work states that, while two people, a working class and a middle class individual, may commit a similar crime, a working class person is far more likely to find themselves labelled as a deviant by police. The stereotypes which influence application and enforcement are based on appearance and language, not the deviant act. A study by Pilliavan and Briar in 1964 substantiate this further, they found police will selectively arrest and label youths, based on their appearance when they were seen loitering. The work of Cicourel, Pilliavan and Briar, and Becker present worldview which sees the state’s enforcement of law as classist and criminogenic. As working class people are more likely to receive a label for a primary act of deviance, a working class person will then find themselves more susceptible to being alienated and frustrated as they are socialised and internalise the “deviant” label. In light of the influence the bourgeoise hold, disproportionate to the size of their demographic, to shape law, norms and the state we result in a society which not only selectively enforces rules primarily against the working class, but also creates laws which benefit the ruling class. Further, mass media is strongly influenced by the ruling class, financially or through the ruling classes role within it’s structures, handing the ruling class the power to present crime as a deviant act as opposed to a natural response to capitalism. Labelling can be a tool of oppression.

The points emphasised by Cicourel and Pilliavan and Briar, comply with Beckers statement in the essay statement and suggests it holds credence. If the label were applied upon the commission of an act then all who committed an offence would receive the label, selective enforcement detailed by research informs us that this is not true. In reality there are no inherently deviant acts, instead acts become deviant when the state intervenes and it’s intervention is selective and biased towards the non-ruling classes. Considering the selective enforcement we see from the state and consequently selective labelling and understanding that, according to Becker, labelling has great effect on the deviant – inclining them towards deviancy amplification and deficiency careers – this is a classist failure of the state.

Critiques of Labelling Theory

Aside from the criticism discussed above, that labels are applied selectively; exacerbating gaps between classes and perpetuating oppressive structures, labelling theory also runs into further critiques from the academic community.

For one, labeling theory requires a deterministic perspective. Determinism precludes the concept of free will, stating that human behaviour is as it is because it is as it must be, for humans cannot act otherwise. Determinism surfaces in Becker’s theory as labelling proposes that a deviants offence is pre-determined by pre-existing causes, the deviant label, when, in reality, not all bona fide deviants will accept their label of deviant and act within it’s prescription. Labelling theory also works on the understanding that perpetrators of crime are passive in their action. The author submits that personal choice plays a role in any action a person makes, something which is not represented fully in labelling theory.

A further failing of Labelling theory is when a crime is viewed through its lens it gives the perpetrator of a crime the status of victim-hood, painting them as a victim of society’s actions towards them. While the offender may indeed be a victim of their environment and socialisation, labeling theory places the true victim of a crime to the wayside.

The theory also creates a negative image of labels in general, with its focus on the deviant label and its potential train of action. Labels can have positive effect on an individual. One’s perception of themself, the labels they internalise will affect how they are socialised in many ways, positive and negative. Becker fails bring this side of labelling into his work.

Within labelling theory, Becker fails to account for what triggers the initial act of primary deviance, focusing on society’s response to the primary act and secondary deviance. Lemert creates a distinction within labelling between having committed a primary act of deviance and the internalising a label, but also fails to explain why initial acts of defiance occur.

From a structural sociological viewpoint most voices would present crime as a product of deeper structural causes, it is generally accepted that crime does not result purely from interactions and labels, as such labelling theory is insufficient for us to model public policy changes around alone.

However, labelling theory is useful to assist reflection into the role of the state in people’s lives. It posits that the enforcement of law tends to be discriminatory and that crime statistics do not reflect reality. When considering changes to the law, labelling theory reminds us that attempts to restrict behaviour and prevent crime may exacerbate the issues and create crime. With this point in minds, the fact that the agents of social control are the primary causes of crime leads to the natural question of why so much power is being given to them. Lily, Cullen and Ball call this the ‘irony of state intervention’. Labelling theory scratches at the surface of recognising the controlling nature of labelling handled by the powerful in our society.

Conclusion

As labels and crime, indeed reality, can be described as a social construct, created through interaction, it can be argued that labelling theory depicts a classist legal system and society which is shaped and perpetuated by the ruling class. A society which places people who fit certain deviant stereotypes at a disadvantage. Labels can be seen as a form of social control and oppression in a deeply classist society.

If we view our state through the lens of labelling theory, then the legitimacy of state intervention through its categorisation of behaviour, hangs on the gamble that labelling creates less crime than it eliminates and that the creation of law is not unduly influenced by the ruling class to perpetuate their social status and class.

A rights-based analysis of intellectual disability and marriage under Irish and International Law

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Shrinking Civil Space & Youth

The youth dimension of shrinking civil space.

Young people and youth organisations hold an important role in democratic society, however the phenomenon of shrinking civil space is affecting young people and youth organisations in Europe at a disproportionate degree. This is a human rights concern and is being underestimated.

Shrinking civil space is an issue which must not be simply worked around, but directly confronted; as overt attempts to reduce, or even just negligence in protecting, civil society space is an affront to fundamental democratic values. We must recognise that civil society is an indispensable part of our system of checks and balances.

Attempts to restrict the space for civil society are often not incidental, they are deliberate actions aimed at inhibiting the participation of sectors and the normal functioning of institutions. Youth organisations are often the first to experience this, as youth organisations exist primarily within civic space. Here the role of youth organisations is evident, through our organisations and networks experiences we can play a mapping role; collecting and communicating our observations as a means to affront shrinking civil space.

Our political class, and our own peers, must become aware of the extent of this issue and the negative effects it has on democratic functions. Facilitating the testimony of youth organisations, often the first to feel the effects of these efforts to undermine democratic institutions, is a responsibility of national youth councils by virtue of our representative structures and functions. It is also our responsibility to hold and promote shrinking civil space as a human rights concern.

The extent and negative consequences of shrinking civil space is still being underestimated. As a network of networks of youth organisations our collective testimonies can be a compelling tool to help to build on the recent work done in this area. When budget pressures build, the first cuts are often in the youth sector; justified by the notion that youth organizations will find a way to continue operating. National youth councils should challenge this perception by offering evidence of the value of youth organisations and by highlighting the barriers to civil space we are already facing.

Civil society?

Civil Society: can be understood as the common denominator for spaces which are neither part of state institutions, the business world nor the family. This definition is not very nuanced as some civil society organisations have overlap with state organisations or the market. A workable definition could be to see civil society as a collective of voluntary civil actors and self governing organisations working towards non-profit objectives.

Civil Space?

Civil space: civil society organisations actively shape civil society space, but are also dependent on it. Civic space is manifested primarily by the ability of civil society organisations to operate. Civil space can denote anything from the ability to have an online group organizing a political position, to a national ngo being able to access funds to operate and advocate freely. A working definition can be the ability of individuals and corporations to exercise their civic and political rights.

Examples of SCS:

As well as being understood as a general or overt animosity to political activities of NGOs/CSOs, there are specific legal and political barriers which exist as a state tool for shrinking civil space.

Example one:

Barriers to incorporation: registering an a corporation brings legal rights and benefits to the organisation and protections for its members. The state can make a registration process excessively burdensome or requiring high levels or fees. In Uzbekistan the Code on Administrative Liability renders participation in unregistered organisations illegal, this coupled with a restrictive registration process severely restrict CSOs ability to operate.

Example two:

Regulation of activities: If you manage to incorporate, you still may not have appropriate freedom to operate as a CSO. Invasive reporting requirements and restrictions on activities are a manifestation of SCS. In Equatorial Guinea CSOs are banned from Human Rights Work, in Russia CSOs cannot engage in state defined terrorist, extremist or political activity. Defining an organisation as engaging in forbidden activity can potentially influence the general public’s perceptions of CSOs negatively.

Example three:

Access to resources: This pertains primarily to access to information and access finances. Hungary sees limitations on foreign funding for NGOs, and a labelling of NGOs accessing foreign funds, delegitimising the organisations work and creating hostility and skepticism to their work. In Austria, Muslim organisations face barriers in receiving foreign funds also. In less resource abundant state, foreign funding is essential for CSOs. At the EU level, INGYOs have perceived increased difficulty in accessing the European Commission’s Structural Grants.

Example four:

Arbitrary application of CSO laws: as well as being a breakdown in the rule of law, the arbitrary application of laws governing CSOs is problematic, states can use legal/extra-legal gray zones to impact certain NGOs. For example forcing arbitrary scrutiny on an NGO, using up its resources in reporting.

Example five:

The normative effect of labelling CSOs: the state can affect discourse between CSO and the public by labelling and encouraging hostility against them. Consider the “foreign agent” labels in Russian civil space or the use of “Soros” label to delegitimise CSO activity.

Recommendations by Youth Organisations

Following Shrinking Civil Space Conference, Dublin 2019

Young people and youth organisations hold important roles in democratic society, however the phenomenon of shrinking civil space is affecting young people and youth organisations at a disproportionate degree. Shrinking civil space is an issue which must not be simply worked around, but directly confronted; as overt attempts to reduce, or even just negligence in protecting, civil society space is an affront to fundamental democratic values.

The following recommendations reflect participants understandings of areas of concern and opportunities for action to create an enabling environment for strong youth organisations to operate and advocate effectively.

Recommendations

1.We need an environment of recognition, understanding, and solidarity

We need to foster stakeholder recognition of the importance and impact of voluntary work and civil society work and thus promote seeing it as a priority; to do so, we need to increase our visibility by strengthening networks and ensuring to document and communicate our value and work.
Being recognised is a key step to achieve being prioritised as a sector, and transitioning towards structural and reliable funding that is not dependent on governmental interest.

2. We need fair regulation under which CSOs can operate effectively and independently

Making it easier for CSO to respond to civil society needs and ensuring that they are not held back by bureaucratic barriers and other issues concerning registration, operation and establishment of an NGO/CSO.

3. We need funding which is sustainable and does not instrumentalise youth organisations

We must highlight the precarious state of youth organisations funding and show the need for continuous reliable multi-annual funding and promote access to public infrastructure.
Youth organisations must not be instrumentalised to provide services for the government and should should be free to set agendas as those most proximate to social concerns and young people’s realities.

4. We need to update civic education

We should work towards better quality and more comprehensive civic education which explores the role of civil society in a functional democracy
This is a means to demonstrate the benefits of involvement in civil society, to promote the civic engagement of young people and to ultimately bring the EU and states closer to the citizens.
We need to recognise the competence & role of youth work, youth organisations and non-formal education in ‘sparking’ civic engagement of young people.

5. Space & Participation for all; we need to confront barriers

The people who need civic space the most often have the most difficulty accessing it.
We should guarantee active participation of civil society with a special focus on election processes to enable diverse groups to participate actively in decision making processes.
Quality education and training for youth workers is essential, with emphasis on media literacy and fostering critical citizenship. Youth spaces and clubs should be supported to be facilitators of civic engagement at all levels.
More awareness and support is needed around Erasmus+ programme, the application process should be simplified and extra efforts must be made to support youth initiatives independent of the need for interlocutor organisations.

6. We need a holistic approach, and to cooperate across sectors

Form unexpected alliances and coalitions around civil spaces within and beyond the youth sector.
Social media should be recognised for the opportunities it presents CSOs and the dangers it can pose if unregulated.
External governance of European funds for Civil Society Organisations should be considered.
If CSO funds cut nationally then EU level sanctions must be considered.

7. We need to take solidarity beyond words; establishing a European ‘Solidarity Fund’

In countries where CSOs are shrinking or restricted through direct influence from governments, often the most urgently needed organisations/projects are affected (e.g. those defending human rights, protecting the rights of vulnerable and marginalised groups such as women, refugees, LGBT+, etc.).
Not only do these groups/victims suffer, often those organisations are also obstructed to drive towards change within the national/regional society. This important task cannot be replaced from any place outside the country/region.
It is important to support this regional/national work from outside, since it is key to a more united, solidary Europe. We therefore propose a “Solidarity Fund” that has the ability to jump in & (partially) replace public funds in case an EU member state surprisingly cuts the fund for an irreplaceable CSO/project.
Such a CSO must fulfill several strict criterias – e.g. it must be present in the field of work for at least 5 years, the cut must be sudden and unjustified, there is no proper replacement for this project/work, it must be beneficial for vulnerable/marginalised groups, etc.

8. We must frame this as a human rights crisis, we need to communicate our realities

This phenomenon is both a human rights crisis, and a crisis for human rights.
Engage with human rights instruments as a means to invite states to engage with shrinking civil space while ensuring restrictions are flagged and documented.
We must communicate our realities to states, international organisations, throughout civil society, to human rights commissions at all levels and through human rights processes. Stakeholders at state, supranational and international level and throughout civil society, must be informed.
Shrinking civil space is an issue which must not be simply worked around, but directly confronted; as overt attempts to reduce, or even just negligence in protecting, civil society space is an affront to fundamental democratic values.

Conclusions

The extent and consequences of shrinking civil space are still being underestimated. As a network of networks of youth organisations we hope our collective testimonies can be a compelling tool to help to build on the recent work done in this area.

When budget pressures build, the first cuts are often in the youth sector; justified by the notion that youth organisations will find a way to continue operating. Youth organisations at all levels should challenge this perception by offering evidence of the value of youth organisations and by highlighting the barriers we are already facing to operate independently and effectively.